by foreign; how far there was simply the inevitable attraction exercised over the minds of men by a system which seemed to provide in advance for the new problems set by the advancing civilisation produced by a more settled government." It was on this structure, composed of diverse elements, that the Common Law of England was based, expanding into a national body of jurisprudence, which up to the time of Henry VIII was chiefly found in the series of reports known as the Year Books, comprising arguments and judicial dicta rather than judgments. It was in them that the Common Law was developed by means of decided cases as opposed to the continental mode of development through the writings and opinions of lawyers. This process continued unchecked until the sixteenth century, when under the influence of the Renaissance there was some reaction against the technicality and narrowness of the Common Law, but the latter was too strongly embedded in the national life, and was too firmly supported by the influence of the lawyers trained in those great legal universities the Inns of Court, to be superseded by the canon and civil law.

It follows that to watch the process of legal development is of the utmost interest during the common growth of the nation and of the law. The two growths are inseparable because an inevitable interaction produced movements at once irregular and practical.

Before the Court of Kings Bench in 1875 became a division of the Supreme Court of Judicature, it was for centuries the chief municipal tribunal in the country with a distinct jurisdiction. Finally it became a part of the new Supreme Court by reason of a well defined policy, namely the creation of one supreme tribunal to include all the jurisdictions, often conflicting, of the previously existing higher national courts. But the King's Bench had not attained its previous distinct position through any kind of clear State policy but through national exigencies, changes and influences. We can trace its growth from the time when, in Professor Holdsworth's words, "it was simply a continuation of that un-differentiated Curia Regis which was still performing (that is in the reign of Henry III) executive and legislative as well as judicial functions." It was in fact a section of the King's Council, or composed of a number of persons who sat with the king, and developed into a purely Common Law Court, not from the

determination of the sovereign or the legislature, but through the fact that technical procedure was essential and that the subject of complaint, such as the correction of errors of inferior courts, was a matter for a professional court. The king gradually ceased to be present at the sessions of the tribunal, and under the influence of parliamentary government the connection of the King's Bench and the council grew less and less, until it became simply a Common Law Court, though preserving in its name and jurisdiction traces of the days when it was in fact the King's Court. It was endowed with a peculiar jurisdiction, criminal and civil, and with a general superintendence over the observance of the law by officials and others by reason of its origin and not from any set design.

As this court had always possessed jurisdiction when a personal wrong or force was alleged, the fiction was created that the defendant was in the custody of the Marshal of the Marshalsea of the king, who kept the prison of the court, and it was then possible to bring any kind of action, except a real action, against him. The custody just described became purely fictitious by means of various technical processes, so that this court finally obtained complete civil jurisdiction, partly from the practical advantage to suitors of an increased area of civil jurisdiction, partly from the ambition of its bench.

In 1661 an attempt was made by statute to limit the enlarged jurisdiction in favour of the Common Pleas and to restore to the latter some part of its ancient procedure. But the King's Bench was able to counter the attempt, with the result that this court retained for all time the entire civil jurisdiction which it had succeeded in obtaining.

While the growth of the jurisdiction of the King's Bench illustrates some characteristics of the development of procedurethat is, the steps from the commencement of an action to its conclusion by a judgment of a court-it also throws light on the importance of procedure in relation to the administration of justice throughout the whole course of the history of English law to our own time. Theoretically procedure should be simple machinery to enable an individual or a body of individuals to obtain justice in some dispute, or to provide means that a crime may be promptly punished by the State. But it has often lost its theoretical purpose and at times has become merely a means to

enlarge jurisdiction and even to obstruct justice. By the beginning of the nineteenth century procedure both in relation to Common Law and to equity had developed into a very technical system, among some legal practitioners a positive art, notably among the special pleaders" who were a body of lawyers rather hybrid in character, being neither barristers nor solicitors, and who have now vanished from the scene. This system proved a serious obstacle to the legal reformer and hindered the codification of the rules of procedure, which was a memorable legal reform at the end of the last century.

When the civil procedure of England-and only civil and not criminal procedure can be noticed in the present pages-is historically reviewed it appears to fall into three main divisions : (1) a period of growth down to the close of the Middle Ages; (2) a completed form at once technical and complicated, which it retained during the seventeenth and eighteenth centuries and the first half of the nineteenth century; (3) the modern period, when public opinion resented the continuance of a procedure which was unsuited to modern needs, conditions and thought, and began to call for a simpler and clearer system. The symptoms of this movement are evidenced among other things by the Common Law Procedure Acts of 1852-1854 and the Chancery Amendment Act 1858, the former being intended to simplify the procedure of the Common Law Courts and the latter that of the Court of Chancery.

But we must bear in mind that the ancient technical system which was in course of growth from the Conquest approximately to the beginning of the sixteenth century was evolved in the interests of justice and of the individual, and that it was a main object of the rules of pleading to separate questions of law from those of fact, to produce distinct issues and to place issues of fact before a jury for its decision. Precision of statement produces relevancy of evidence and in so doing helps to banish prejudice and is essential to an effective legal system. Unquestionably the English legal system has in this respect been and continues to be successful, and though we may regard the system of our ancestors as having often been overwhelmed by technicalities, yet we should remember that it not only served a practical purpose in former times, but that it had a beneficial influence on substantive law and on the legal profession, for it

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facilitated the easy creation of law by means of legal decisions, each point emerging from time to time classified and capable of inclusion as a judgment of a court to serve as a precedent for the future. Lawyers, if technical, were at any rate clear-minded, distinguishing between facts and law, so that the issue for decision became obvious and justice was facilitated. As Professor Holdsworth says, an "outstanding feature of English private law is the development of its principles by the legal profession," and this was possible from its procedure, which facilitated case law and was antagonistic to a system of codes emanating from the State. Codification has in some measure appeared in recent times and has been applied successfully to some limited subjects, notably the law of Bills of Exchange. But such legislation has not yet, to any large extent, changed the continuous characteristics of the national jurisprudence.

A system such as that which has prevailed in England is one which when in a formative state was especially capable of feeling the influence of individual lawyers. Thus Coke left his mark on it in his judicial capacity by clarifying the Common Law and defining the jurisdiction of the courts. Under his influence the Common Law became also an instrument for explaining and limiting the royal prerogative. In this respect we touch on a subject outside the actual history of the law and are brought into contact with its influence on political institutions, in other words with the action of the law on the development of the constitution. But besides being a great judge, Coke was also a famous legal author. As such he personified the completion of the medieval growth of the Common Law and in his Reports and Institutes, with immense labour and learning, described the Common Law as it was to be found in the seventeenth century. "It is one of the things," Coke wrote, " of greatest moment in the profession of the Common Law to keepe as neare as may be to the certainty of the law and the consonance of it to itself, that one age and one tribunall may speake the same things and carry on the same thred of the law in one uniforme rule as neare as is possible."

At a later period the figure emerges of another great lawyer who had noticeable influence on a single but important part of the Common Law. Sir John Holt, who was appointed Chief Justice of the King's Bench in 1689, was "the first judge," says Professor Holdsworth, "since the Restoration to appreciate the modern

conditions of trade and the importance of moulding the doctrines of the Common Law to fit them." Through the flexibility of the English system and his own appreciation of the changes which were occurring in national life, he performed the invaluable work of adapting the Common Law to the commercial growth of the nation. The result was that the State had no hand in this development and that there were no alterations of legal structure, no code of commerce; but mercantile practice, almost imperceptibly, became part of the Common Law. Rules as to bills of exchange and as to bills of lading and the contract of bailment found themselves placed in English law. So that the tenure of office of Chief Justice Holt at the end of the seventeenth century synchronises with the commencement of the modern mercantile law of England and identifies it with a personality.

The work of Holt and his immediate successors was made more accessible to lawyers as a body and therefore was more influential by the fact that, in the seventeenth century, reports of the arguments in and judgments of cases were becoming a feature of the legal system, and these reports were prepared by competent lawyers. It is in this period that we find the reports of Lord Raymond and of Levinz and of other lawyers to whom the growth of the Common Law in the seventeenth century is greatly indebted, for they gave to it a precision which to some extent it had hitherto wanted and they established a means of recording decisions which has continued in an increasing measure to the present time.

After the foundation had been laid for the absorption of mercantile law in the Common Law in the time of Sir John Holt, it was not difficult for an exceptionally eminent judge of great learning and judicial power to continue the consistent commercial enlargement of the Common Law. Lord Mansfield was a more scientific and learned jurist than Holt, and relied less than his predecessor on commercial customs and more on general principles, the rules of international commerce and the medieval sea codes of continental countries. He gave a larger scope and a wider basis to the principles which he placed in English law.

Reference must here be made to another judge of exceptional judicial power-Lord Stowell-who was even more indebted to continental jurisprudence than Lord Mansfield. The permanent influence which Lord Stowell exercised as judge of