A Book About Lawyers Part 14

[22] The 'De Laudibus' was written in Latin; but for the convenience of readers not familiar with that cla.s.sic tongue, the quotations from the treatise are given from Robert Mulcaster's English version.

CHAPTER x.x.xIV.

LAWYERS AND GENTLEMEN.

Thus planted in the fourteenth century beyond the confines of the city, and within easy access of Westminster Hall, the Inns of Court and Chancery formed an university, which soon became almost as powerful and famous as either Oxford or Cambridge. For generations they were spoken of collectively as the law-university, and though they were voluntary societies--in their nature akin to the club-houses of modern London--they adopted common rules of discipline, and an uniform system of instruction. Students flocked to them in abundance; and whereas the students of Oxford and Cambridge were drawn from the plebeian ranks of society, the scholars of the law-university were almost invariably the sons of wealthy men and had usually sprung from gentle families. To be a law-student was to be a stripling of quality. The law university enjoyed the same patrician _prestige_ and _eclat_ that now belong to the more aristocratic houses of the old universities.

n.o.blemen sent their sons to it in order that they might acquire the style and learning and accomplishments of polite society. A proportion of the students were encouraged to devote themselves to the study of the law and to attend sedulously the sittings of Judges in Westminster Hall; but the majority of well-descended boys who inhabited the Inns of Chancery were heirs to good estates, and were trained to become their wealth rather than to increase it--to perfect themselves in graceful arts, rather than to qualify themselves to hold briefs. The same was the case in the Inns of Court, which were so designated--not because they prepared young men to rise in courts of law, but because they taught them to shine in the palaces of kings. It is a mistake to suppose that the Inns of Court contain at the present time a larger proportion of idle members, who have no intention to practise at the bar, than they contained under the Plantagenets and Tudors. On the contrary, in the fourteenth and fifteenth centuries, the number of Templars who merely played at being lawyers, or were lawyers only in name, was actually as well as relatively greater than the merely _nominal_ lawyers of the Temple at the present time. For several generations, and for two centuries after Sir John Fortescue wrote the 'De Laudibus,' the Inns-of-Court man was more busied in learning to sing than in learning to argue a law cause, more desirous to fence with a sword than to fence with logic.

"Notwithstanding," runs Mulcaster's translation of the 'De Laudibus,'[23] "the same lawes are taught and learned, in a certaine place of publique or common studie, more convenient and apt for attayninge to the knowledge of them, than any other university. For theyr place of studie is situate nigh to the Kinges Courts, where the same lawes are pleaded and argued, and judgements by the same given by judges, men of gravitie, auncient in yeares, perfit and graduate in the same lawes. Wherefore, euerie day in court, the students in those lawes resorte by great numbers into those courts wherein the same lawes are read and taught, as it were in common schooles. This place of studie is far betweene the place of the said courts and the cittie of London, which of all thinges necessarie is the plentifullest of all cities and townes of the realme. So that the said place of studie is not situate within the cittie, where the confluence of people might disturb the quietnes of the studentes, but somewhat severall in the suburbes of the same cittie, and nigher to the saide courts, that the studentes may dayelye at their pleasure have accesse and recourse thither without weariness."

Setting forth the condition and pursuits of law-students in his day, Sir John Fortesque continues; "For in these greater inns, there can no student bee mayntayned for lesse expenses by the yeare than twentye markes. And if hee have a servaunt to wait uppon him, as most of them have, then so much the greater will his charges bee. Nowe, by reason of this charge, the children onely of n.o.blemenne doo studye the lawes in those innes. For the poore and common sorte of the people are not able to bear so great charges for the exhibytion of theyr chyldren. And Marchaunt menne can seldome finde in theyr heartes to hynder theyr merchaundise with so greate yearly expenses. And it thus falleth out that there is scant anye man founde within the realme skilfull and cunning in the lawes, except he be a gentleman borne, and come of n.o.ble stocke. Wherefore they more than any other kinde of men have a speciall regarde to their n.o.bility, and to the preservation of their honor and fame. And to speake upryghtlye, there is in these greater innes, yea, and in the lesser too, beside the studie of the lawes, as it were an university or schoole of all commendable qualities requisite for n.o.ble men. There they learn to sing, and to exercise themselves in all kinde of harmonye. There also they practice daunsing, and other n.o.blemen's pastimes, as they use to do, which are brought up in the king's house.

On the working dayes, the most of them apply themselves to the studye of the lawe, and on the holye dayes to the studye of holye Scripture;[24]

and out of the tyme of divine service, to the reading of Chronicles. For there indeede are vertues studied, and vices exiled. So that, for the endowment of vertue, and abandoning of vice, Knights and Barrons, with other states and n.o.blemen of the realme, place their children in those innes, though they desire not to have them learned in the lawes, nor to lieue by the practice thereof, but onely uppon their father's allowance.

Scant at anye tyme is there heard among them any sedition, chyding, or grudging, and yet the offenders are punished with none other payne, but onely to bee amooved from the compayne of their fellowshippe. Which punishment they doo more feare than other criminall offendours doo feare imprisonment and yrons: For hee that is once expelled from anye of those fellowshippes is never received to bee a felowe in any of the other fellowshippes. And so by this means there is continuall peace; and their demeanor is lyke the behaviour of such as are coupled together in perfect amytie."

Any person familiar with the Inns of Court at the present time will see how closely the law-colleges of Victoria's London resemble in many important particulars the law-colleges of Fortescue's period. After the fashion of four centuries since young men are still induced to enter them for the sake of honorable companionship, good society, and social prestige, rather than for the sake of legal education. After the remarks already made with regard to musical lawyers in a previous section of this work, it is needless to say that Inns of Court men are not remarkable for their application to vocal harmony; but the younger members are still remarkable for the zeal with which they endeavor to master the accomplishments which distinguish men of fashion and tone. If the nominal (sometimes they are called 'ornamental') barristers of the fifteenth century liked to read the Holy Scriptures, the young lawyers of the nineteenth century are no less disposed to read their Bibles critically, and argue as to the merits of Bishop Colenso and his opponents. Moreover, the discipline described by Fortescue is still found sufficient to maintain order in the inns.

Writing more than a century after Fortescue, Sir John Ferne, in his 'Blazon of Gentrie, the Glory of Generosity, and the Lacy's n.o.bility,'

observes: "n.o.bleness of blood, joyned with virtue, compteth the person as most meet to the enterprize of any public service; and for that cause it was not for nought that our antient governors in this land, did with a special foresight and wisdom provide, that none should be admitted into the Houses of Court, being seminaries sending forth men apt to the government of justice, except he were a gentleman of blood. And that this may seem a truth, I myself have seen a kalendar of all those which were together in the society of one of the same houses, about the last year of King Henry the Fifth, with the armes of their House and family marshalled by their names; and I a.s.sure you, the self same monument doth both approve them all to be gentlemen of perfect descents and also the number of them much less than now it is, being at that time in one house scarcely three score."[25]

This pa.s.sage from an author who delighted to magnify the advantages of generous descent, has contributed to the very general and erroneous impression that until comparatively recent times the members of the English bar were necessarily drawn from the highest ranks of society; and several excellent writers on the antiquities of the law have laid aside their customary caution and strengthened Ferne's words with inaccurate comment.

Thus Pearce says of the author of the 'Glory of Generositie'--"He was one of the advocates for excluding from the Inns of Court all who were not 'a gentleman by blood,' according to the ancient rule mentioned by Fortescue, which seems to have been disregarded in Elizabeth's time."

Fortescue nowhere mentions any such rule, but attributes the aristocratic character of the law-colleges to the high cost of membership. Far from implying that men of mean extraction were excluded by an express prohibition, his words justify the inference that no such rule existed in his time.

Though Inns-of-Court men were for many generations gentlemen by birth almost without a single exception, it yet remains to be proved that plebeian birth at any period disqualified persons for admission to the law-colleges. If such a restriction ever existed it had disappeared before the close of the fifteenth century--a period not favorable to the views of those who were most anxious to remove the barriers placed by feudal society between the gentle and the vulgar. Sir John More (the father of the famous Sir Thomas) was a Judge in the King's Bench, although his parentage was obscure; and it is worthy of notice that he was a successful lawyer of Fortescue's period. Lord Chancellor Audley was not ent.i.tled to bear arms by birth, but was merely the son of a prosperous yeoman. The lowliness of his extraction cannot have been any serious impediment to him, for before the end of his thirty-sixth year he was a sergeant. In the following century the inns received a steadily increasing number of students, who either lacked generous lineage or were the offspring of shameful love. For instance, Chief Justice Wray's birth was scandalous; and if Lord Ellesmere in his youth reflected with pride on the dignity of his father, Sir Richard Egerton, he had reason to blush for his mother. Ferne's lament over the loss of heraldric virtue and splendor, which the inns had sustained in his time, testifies to the presence of a considerable plebeian element amongst the members of the law-university. But that which was marked in the sixteenth was far more apparent in the seventeenth century. Scroggs's enemies were wrong in stigmatizing him as a butcher's son, for the odious chief justice was born and bred a gentleman, and Jeffreys could boast a decent extraction; but there is abundance of evidence that throughout the reigns of the Stuarts the inns swarmed with low-born adventurers. The career of Chief Justice Saunders, who, beginning as a "poor beggar boy,"

of unknown parentage, raised himself to the Chiefship of the King's Bench, shows how low an origin a judge might have in the seventeenth century. To mention the names of such men as Parker, King, Yorke, Ryder, and the Scotts, without placing beside them the names of such men as Henley, Harcourt, Bathurst, Talbot, Murray, and Erskine, would tend to create an erroneous impression that in the eighteenth century the bar ceased to comprise amongst its industrious members a large aristocratic element.

The number of barristers, however, who in that period brought themselves by talent and honorable perseverance into the foremost rank of the legal profession in spite of humble birth, unquestionably shows that ambitious men from the obscure middle cla.s.ses were more frequently than in any previous century found pushing their fortunes in Westminster Hall. Lord Macclesfield was the son of an attorney whose parents were of lowly origin, and whose worldly means were even lower than their ancestral condition. Lord Chancellor King's father was a grocer and salter who carried on a retail business at Exeter; and in his youth the Chancellor himself had acted as his father's apprentice--standing behind the counter and wearing the ap.r.o.n and sleeves of a grocer's servitor. Philip Yorke was the son of a country attorney who could boast neither wealth nor gentle descent. Chief Justice Ryder was the son of a mercer whose shop stood in West Smithfield, and grandson of a dissenting minister, who, though he bore the name, is not known to have inherited the blood of the Yorkshire Ryders. Sir William Blackstone was the fourth son of a silkman and citizen of London. Lords Stowell and Eldon were the children of a provincial tradesman. The learned and good Sir Samuel Romilly's father was Peter Romilly, jeweller, of Frith Street, Soho. Such were the origins of some of the men who won the prizes of the law in comparatively recent times. The present century has produced an even greater number of barristers who have achieved eminence, and are able to say with honest pride that they are the _first_ gentlemen mentioned in their pedigrees; and so thoroughly has the bar become an open profession, accessible to all persons[26] who have the means of gentlemen, that no barrister at the present time would have the bad taste or foolish hardihood to express openly his regret that the members of a liberal profession should no longer pay a hurtful attention to illiberal distinctions.

According to Fortescue, the law-students belonging at the same time to the Inns of Court and Chancery numbered _at least_ one thousand eight hundred in the fifteenth century; and it may be fairly inferred from his words that their number considerably exceeded two thousand. To each of the ten Inns of Chancery the author of the 'De Laudibus' a.s.signs "an hundred students at the least, and to some of them a much greater number;" and he says that the least populous of the four Inns of Court contained "two hundred students or thereabouts." At the present time the number of barristers--together with Fellows of the College of Advocates, and certificated special pleaders and conveyancers not at the bar--is shown by the Law List for 1866 to be somewhat more than 4800.[27] Even when it is borne in mind how much the legal business of the whole nation has necessarily increased with the growth of our commercial prosperity--it being at the same time remembered, upon the other hand, how many times the population of the country has doubled itself since the wars of the Roses--few persons will be of opinion that the legal profession, either by the number of its pract.i.tioners or its command of employment, is a more conspicuous and prosperous power at the present time than it was in the fifteenth century.

Ferne was by no means the only gentleman of Elizabethan London to deplore the rapid increase in the number of lawyers, and to regret the growing liberality which encouraged--or rather the national prosperity which enabled--men of inferior parentage to adopt the law as a profession. In his address on Mr. Clerke's elevation to the dignity of a sergeant, Lord Chancellor Hatton, echoing the common complaint concerning the degradation of the law through the swarms of plebeian students and pract.i.tioners, observed--"Let not the dignitie of the lawe be geven to men unmeete. And I do exhorte you all that are heare present not to call men to the barre or the benches that are so unmeete. I finde that there are now more at the barre in one house than there was in all the Innes of Court when I was a younge man." Notwithstanding the Chancellor's earnest statement of his personal recollection of the state of things when he was a young man, there is reason to think that he was quite in error in thinking that lawyers had increased so greatly in number. From a MS. in Lord Burleigh's collection, it appears that in 1586 the number of law-students, resident during term, was only 1703--a smaller number than that which Fortescue computed the entire population of the London law-students, at a time when civil war had cruelly diminished the number of men likely to join an aristocratic university.

Sir Edward c.o.ke estimated the roll of Elizabethan law-students at one thousand, half their number in Fortescue's time. c.o.ke, however, confined his attention in this matter to the Students of Inns of Court, and paid no attention to Inns of Chancery. Either Hatton greatly exaggerated the increase of the legal working profession; or in previous times the proportion of law-students who never became barristers greatly exceeded those who were ultimately called to the bar.

Something more than a hundred years later, the old cry against the low-born adventurers, who, to the injury of the public and the degradation of the law, were said to overwhelm counsellors and solicitors of superior tone and pedigree, was still frequently heard in the coteries of disappointed candidates for employment in Westminster Hall, and on the lips of men whose hopes of achieving social distinction were likely to be frustrated so long as plebeian learning and energy were permitted to have free action. In his 'History of Hertfordshire'

(published in 1700), Sir Henry Chauncey, Sergeant-at-Law, exclaims: "But now these mechanicks, ambitious of rule and government, often educate their sons in these seminaries of law, whereby they overstock the profession, and so make it contemptible; whilst the gentry, not sensible of the mischief they draw upon themselves, but also upon the nation, prefer them in their business before their own children, whom they bereave of their employment, formerly designed for their support; qualifying their servants, by the profit of this profession, to purchase their estates, and by this means make them their lords and masters, whilst they lessen the trade of the kingdom, and cause a scarcity of husbandmen, workmen, artificers, and servants in the nation."

That the Inns of Court became less and less aristocratic throughout the seventeenth and eighteenth centuries there is no reason to doubt; but it may be questioned whether it was so overstocked with competent working members, as poor Sir Henry Chauncey imagined it. Describing the state of the inns some two generations later, Blackstone computed the number of law-students at about a thousand, perhaps slightly more; and he observes that in his time the merely _nominal_ law-students were comparatively few. "Wherefore," he says, "few gentlemen now resort to the Inns of Court, but such for whom the knowledge of practice is absolutely necessary; such, I mean, as are intended for the profession; the rest of our gentry, (not to say our n.o.bility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land, and indeed with hardly any opportunity of gaining instruction, unless it can be afforded to them in the universities."

The folly of those who lamented that men of plebeian rank were allowed to adopt the legal profession as a means of livelihood, was however exceeded by the folly of men of another sort, who endeavored to hide the humble extractions of eminent lawyers, under the ingenious falsehoods of fict.i.tious pedigrees. In the last century, no sooner had a lawyer of humble birth risen to distinction, than he was pestered by fabricators of false genealogies, who implored him to accept their silly romances about his ancestry. In most cases, these ridiculous applicants hoped to receive money for their dishonest representations; but not seldom it happened that they were actuated by a sincere desire to protect the heraldic honor of the law from the aspersions of those who maintained that a man might fight his way to the woolsack, although his father had been a tender of swine. Sometimes these imaginative chroniclers, not content with fabricating a genealogical chart for a _parvenu_ Lord Chancellor, insisted that he should permit them to write their lives in such a fashion, that their earlier experiences should seem to be in harmony with their later fortunes. Lord Macclesfield (the son of a poor and ill-descended country attorney), was traced by officious adulators to Reginald Le Parker, who accompanied Edward I., while Prince of Wales, to the Holy Land. In like manner a manufacturer of genealogies traced Lord Eldon to Sir Michael Scott of Balwearie. When one of this servile school of worshippers approached Lord Thurlow with an a.s.surance that he was of kin with Cromwell's secretary Thurloe, the Chancellor, with bluff honesty, responded, "Sir, as Mr. Secretary Thurloe was, like myself, a Suffolk man, you have an excuse for your mistake. In the seventeenth century two Thurlows, who were in no way related to each other, flourished in Suffolk. One was Cromwell's secretary Thurloe, the other was Thurlow, the Suffolk carrier. I am descended from the carrier."

Notwithstanding Lord Thurlow's frequent and consistent disavowals of pretension to any heraldic pedigree, his collateral descendants are credited in the 'Peerages' with a descent from an ancient family.

[23] This charming book was written during the author's exile, which began in 1463.

[24] This pa.s.sage is one of several pa.s.sages in Pre-reformation English literature which certify that the Bible was much more widely and carefully read by lettered and studious layman, in times prior to the rupture between England and Rome, than many persons are aware, and some violent writers like to acknowledge.

[25] Pathetically deploring the change wrought by time, Ferne also observes of the Inns of Court,--"Pity to see the same places, through the malignity of the times, and the negligence of those which should have had care to the same, been altered quite from their first inst.i.tution."

[26] It is not unusual now-a-days to see on the screened list of students about to be called to the bar the names of gentlemen who have caused themselves to be described in the quasi-public lists as the sons of tradesmen. Some few years since a gentleman who has already made his name known amongst juniors, was thus 'screened'in the four halls as the son of a petty tradesman in an obscure quarter of London; and a.s.suming that his conduct was due to self-respect and affectionate regard for his parent, it seemed to most observers that the young lawyer, in thus frankly stating his lowly origin, acted with spirit and dignity. It may be that years hence this highly-accomplished gentleman will, like Lord Tenterden and Lord St. Leonards (both of whom were the sons of honest but humble tradesmen), see his name placed upon the roll of England's hereditary n.o.blesse.

[27] Of this number about 2500 reside in or near London and maintain some apparent connexion with the Inns of Court. Of the remainder, some reside in Scotland, some in Ireland, some in the English provinces, some in the colonies; whilst some of them, although their names are still on the Law List, have ceased to regard themselves as members of the legal profession.

CHAPTER x.x.xV.

LAW-FRENCH AND LAW-LATIN.

No circ.u.mstances of the Norman Conquest more forcibly ill.u.s.trate the humiliation of the conquered people, than the measures by which the invaders imposed their language on the public courts of the country, and endeavored to make it permanently usurp the place of the mother-tongue of the despised mult.i.tude; and no fact more signally displays our conservative temper than the general reluctance of English society to relinquish the use of the French words and phrases which still tincture the language of parliament, and the procedures of Westminster Hall, recalling to our minds the insolent domination of a few powerful families who occupied our country by force, and ruled our forefathers with vigorous injustice.

Frenchmen by birth, education, sympathy, William's barons did their utmost to make England a new France: and for several generations the descendants of the successful invaders were no less eager to abolish every usage which could remind the vanquished race of their lost supremacy. French became the language of parliament and the council-chamber. It was spoken by the judges who dispensed justice in the name of a French king, and by the lawyers who followed the royal court in the train of the French-speaking judges. In the hunting-field and the lists no gentleman ent.i.tled to bear coat-armour deigned to utter a word of English: it was the same in Fives' Court and at the gambling-table. Schoolmasters were ordered to teach their pupils to construe from Latin into French, instead of into English; and young men of Anglo-Saxon extraction, bent on rising in the world by native talent and Norman patronage, labored to acquire the language of the ruling cla.s.s and forget the accents of their ancestors. The language and usages of modern England abound with traces of the French of this period. To every act that obtained the royal a.s.sent during last session of parliament, the queen said "La reyne le veult." Every bill which is sent up from the Commons to the Lords, an officer of the lower house endorses with "Soit baile aux Seigneurs;" and no bill is ever sent down from the Lords to the Commons until a corresponding officer of the upper house has written on its back, "Soit baile aux Communes."

In like manner our parochial usages, local sports, and domestic games continually remind us of the obstinate tenacity with which the Anglo-Saxon race has preserved, and still preserves, the vestiges of its ancient subjection to a foreign yoke. The crier of a country town, in any of England's fertile provinces, never proclaims the loss of a yeoman's sporting-dog, the auction of a bankrupt dealer's stock-in-trade, or the impounding of a strayed cow, until he has commanded, in Norman-French, the attention of the sleepy rustics. The language of the stable and the kennel is rich in traces of Norman influence; and in backgammon, as played by orthodox players, we have a suggestive memorial of those Norman n.o.bles, of whom Fortescue, in the 'De Laudibus' observes: "Neither had they delyght to hunt, and to exercise other sportes and pastimes, as dyce-play and the hand-ball, but in their own proper tongue."

In behalf of the Norman _n.o.blesse_ it should be borne in mind that their policy in this matter was less intentionally vexatious and insolent than it has appeared to superficial observers. In the great majority of causes the suitors were Frenchmen; and it was just as reasonable that they should like to understand the arguments of their counsel and judges, as it is reasonable for suitors in the present day to require the proceedings in Westminster Hall to be clothed in the language most familiar to the majority of persons seeking justice in its courts. If the use of French pleadings was hard on the one Anglo-Saxon suitor who demanded justice in Henry I.'s time, the use of English pleadings would have been equally annoying to the nine French gentlemen who appeared for the same purpose in the king's court. It was greatly to be desired that the two races should have one common language; and common sense ordained that the tongue of the one or the other race should be adopted as the national language. Which side therefore was to be at the pains to learn a new tongue? Should the conquerors labor to acquire Anglo-Saxon? or should the conquered be required to learn French? In these days the cultivated Englishmen who hold India by military force, even as the Norman invaders held England, by the right of might, settle a similar question by taking upon themselves the trouble of learning as much of the Asiatic dialects as is necessary for purposes of business. But the Norman barons were not cultivated; and for many generations ignorance was with them an affair of pride no less than of const.i.tutional inclination.

Soon ambitious Englishmen acquired the new language, in order to use it as an instrument for personal advancement. The Saxon stripling who could keep accounts in Norman fashion, and speak French as fluently as his mother tongue, might hope to sell his knowledge in a good market. As the steward of a Norman baron he might negotiate between my lord and my lord's tenants, letting my lord know as much of his tenant's wishes, and revealing to the tenants as much of their lord's intentions as suited his purpose. Uniting in his own person the powers of interpreter, arbitrator, and steward, he possessed enviable opportunities and facilities for acquiring wealth. Not seldom, when he had grown rich, or whilst his fortunes were in the ascendant, he a.s.sumed a French name as well as a French accent; and having persuaded himself and his younger neighbors that he was a Frenchman, he in some cases bequeathed to his children an ample estate and a Norman pedigree. In certain causes in the law courts the agent (by whatever t.i.tle known) who was a perfect master of the three languages (French, Latin, and English) had greatly the advantage over an opposing agent who could speak only French and Latin.

From the Conquest till the latter half of the fourteenth century the pleadings in courts of justice were in Norman-French; but in the 36 Ed.

III., it was ordained by the king "that all plees, which be to be pleded in any of his courts, before any of his justices; or in his other places; or before any of his other ministers; or in the courts and places of any other lords within the realm, shall be pleded, shewed, and defended, answered, debated, and judged in the English tongue, and that they be entred and enrolled in Latine. And that the laws and customs of the same realm, termes, and processes, be holden and kept as they be, and have been before this time; and that by the antient termes and forms of the declarations no man be prejudiced; so that the matter of the action be fully shewed in the demonstration and in the writ." Long before this wise measure of reform was obtained by the urgent wishes of the nation, the French of the law courts had become so corrupt and unlike the language of the invaders, that it was scarcely more intelligible to educated natives of France than to most Englishmen of the highest rank. A jargon compounded of French and Latin, none save professional lawyers could translate it with readiness or accuracy; and whilst it unquestionably kept suitors in ignorance of their own affairs, there is reason to believe that it often perplexed the most skilful of those official interpreters who were never weary of extolling his lucidity and precision.

But though English lawyers were thus expressly forbidden in 1362 to plead in Law-French, they persisted in using the hybrid jargon for reports and treatises so late as George II.'s reign; and for an equal length of time they seized every occasion to introduce sc.r.a.ps of Law-French into their speeches at the bars of the different courts. It should be observed that these antiquarian advocates were enabled thus to display their useless erudition by the provisions of King Edward's act, which, while it forbade French _pleadings_, specially ordained the retention of French terms.

Roger North's essay 'On the study of the Laws' contains amusing testimony to the affection with which the lawyers of his day regarded their Law-French, and also shows how largely it was used till the close of the seventeenth century by the orators of Westminster Hall. "Here I must stay to observe," says the author, enthusiastically, "the necessity of a student's early application to learn the old Law-French, for these books, and most others of considerable authority, are delivered in it. Some may think that because the Law-French is no better than the old Norman corrupted, and now a deformed hotch-potch of the English and Latin mixed together, it is not fit for a polite spark to foul himself with; but this nicety is so desperate a mistake, that lawyer and Law-French are coincident; one will not stand without the other." So enamored was he of the grace and excellence of law-reporters'

French, that he regarded it as a delightful study for a man of fashion, and maintained that no barrister would do justice to the law and the interests of his clients who did not season his sentences with Norman verbiage. "The law," he held, "is scarcely expressible properly in English, and when it is done, it must be _Francoise_, or very uncouth."

Edward III.'s measure prohibitory of French pleadings had therefore comparatively little influence on the educational course of law-students. The published reports of trials, known by the name of Year-Books, were composed in French, until the series terminated in the time of Henry VIII.; and so late as George II.'s reign, Chief Baron Comyn preferred such words as 'chemin,' 'dismes,' and 'baron and feme,'

to such words as 'highway,' 't.i.thes,' 'husband and wife.' More liberal than the majority of his legal brethren, even as his enlightenment with regard to public affairs exceeded that of ordinary politicians of his time, Sir Edward c.o.ke wrote his commentaries in English, but when he published them, he felt it right to soothe the alarm of lawyers by a.s.suring them that his departure from ancient usage could have no disastrous consequences. "I cannot conjecture," he apologetically observes in his preface, "that the general communicating these laws in the English tongue can work any inconvenience."

Some of the primary text-books of legal lore had been rendered into English, and some most valuable treatises had been written and published in the mother tongue of the country; but in the seventeenth century no Inns-of-Court man could acquire an adequate acquaintance with the usages and rules of our courts and the decisions of past judges, until he was able to study the Year-Books and read Littleton in the original. To acquire this singular language--a _dead_ tongue that cannot be said to have ever lived--was the first object of the law-student. He worked at it in his chamber, and with faltering and uncertain accents essayed to speak it at the periodic mootings in which he was required to take part before he could be called to the bar, and also after he had become an utter-barrister. In his 'Autobiography,' Sir Simonds D'Ewes makes mention in several places of his Law-French exercises (_temp._ James I.), and in one place of his personal story he observes, "I had twice mooted in Law-French before I was called to the bar, and several times after I was made an utter-barrister, in our open hall. Thrice also before I was of the bar, I argued the reader's cases at the Inns of Chancery publicly, and six times afterwards. And then also, being an utter-barrister, I had twice argued our Middle-Temple reader's case at the cupboard, and sat nine times in our hall at the bench, and argued such cases in English as had before been argued by young gentlemen or utter-barristers in Law-French bareheaded."

Amongst the excellent changes by which the more enlightened of the Commonwealth lawyers sought to lessen the public clamor of law-reform was the resolution that all legal records should be kept, and all writs composed, in the language of the country. Hitherto the law records had been kept in a Latin that was quite as barbarous as the French used by the reporters; and the determination to abolish a custom which served only to obscure the operations of justice and to confound the illiterate was hailed by the more intelligent purchasers of law as a notable step in the right direction. But the reform was by no means acceptable to the majority of the bar, who did not hesitate to stigmatize the measure as a dangerous innovation--which would prove injurious to learned lawyers and peace-loving citizens, although it might possibly serve the purposes of ignorant counsel and litigious 'lay gents.'[28]The legal literature of three generations following Charles I.'s execution abounds with contemptuous allusions to the 'English times' of Cromwell; the old-fashioned reporters, hugging their Norman-French and looking with suspicion on popular intelligence, were vehement in expressing their contempt for the prevalent misuse of the mother tongue. "I have,"

observes Styles, in the preface to his reports, "made these reports speak English; not that I believe that they will be thereby more generally useful, for I have always been and yet am of opinion, that that part of the Common Law which is in the English hath only occasioned the making of unquiet spirits contentiously knowing, and more apt to offend others than to defend themselves; but I have done it in obedience to authority, and to stop the mouths of such of this English age, who, though they be confessedly different in their minds and judgments, as the builders of Babel were in their language, yet do think it vain, if not impious, to speak or understand more than their own mother tongue."

In like manner, Whitelock's uncle Bulstrode, the celebrated reporter, says of the second part of his reports, "that he had manny years since perfected the words in French, in which language he had desired it might have seen the light, being most proper for it, and most convenient for the professors of the law."

The restorers who raised Charles II. to his father's throne, lost no time in recalling Latin to the records and writs; and so gladly did the reporters and the practising counsel avail themselves of the reaction in favor of discarded usages, that more Law-French was written and talked in Westminster Hall during the time of the restored king, than had been penned and spoken throughout the first fifty years of the seventeenth century.

The vexatious and indescribably absurd use of Law-Latin in records, writs, and written pleadings, was finally put an end to by statute 4 George II. c. 26; but this bill, which discarded for legal processes a c.u.mbrous and harsh language, that was alike unmusical and inexact, and would have been utterly unintelligible to a Roman gentleman of the Augustan period, did not become law without much opposition from some of the authorities of Westminster Hall. Lord Raymond, Chief Justice of the King's Bench, spoke in accordance with opinions that had many supporters on the bench and at the bar, when he expressed his warm disapprobation of the proposed measure, and sarcastically observed "that if the bill paused, the law might likewise be translated into Welsh, since many in Wales understood not English." In the same spirit Sir Willian Blackstone and more recent authorities have lamented the loss of Law-Latin. Lord Campbell, in the 'Chancellors,' records that he "heard the late Lord Ellenborough from the bench regret the change, on the ground that it had had the tendency to make attorneys illiterate."

The sneer by which Lord Raymond endeavored to cast discredit on the proposal to abolish Law-Latin, was recalled after the lapse of many years by Sergeant Heywood, who forthwith acted upon it as though it originated in serious thought. Whilst acting as Chief Justice of the Carmarthen Circuit, the sergeant was presiding over a trial of murder, when it was discovered that neither the prisoner, nor any member of the jury, could understand a word of English; under these circ.u.mstances it was suggested that the evidence and the charge should be explained _verbatim_, to the prisoner and his twelve triers by an interpreter. To this reasonable pet.i.tion that the testimony should be presented in a Welsh dress, the judge replied that, "to accede to the request would be to repeal the act of parliament, which required that all proceedings in courts of justice should be in the English tongue, and that the case of a trial in Wales, in which the prisoner and jury should not understand English, was a case not provided for, although the attention of the legislature had been called to it by that great judge Lord Raymond." The judge having thus decided, the inquiry proceeded--without the help of an interpreter--the counsel for the prosecution favoring the jury with an eloquent harangue, no single sentence of which was intelligible to them; a series of witnesses proving to English auditors, beyond reach of doubt, that the prisoner had deliberately murdered his wife; and finally the judge instructing the jury, in language which was as insignificant to their minds as the same quant.i.ty of obsolete Law-French would have been, that it was their duty to return a verdict of 'Guilty.' Throwing themselves into the humor of the business, the Welsh jurymen, although they were quite familiar with the facts of the case, acquitted the murderer, much to the encouragement of many wretched Welsh husbands anxious for a termination of their matrimonial sufferings.