There are Many aspects of the law which are instinct with romance but none of its aspects is mere saturated and dripping with fascinating interest than its historical evolution. The sources of English law said Chief Justice Hale, are as undiscoverable as the sources of the Nile. But it is not necessary to go as far back as the sources in order to discover the romance of law’s historical evolution
Even as late its the last century there were in existence the Court of Chancery, the Doctors Commons and Debtors’ Gaol. All the three institution have been gibbeted to eternity by Dickens the Court of Chancery in “Bleak House”, the Doctors Commons in “David Copperfield”, the Debtors’ Gaol in “Little Dorrit”. It is hardly credible that less than a hundred years ago ten per cant of all the debtors brought before the court were condemned to languish for the rest of their lives in gaol.
All that time the law of evidence was so unreasonable as to barb with truth the sneer that the law is an ass. No interested person could be called as a witness. As a wit once put it, “If a farmer in his gig ran over a foot-passenger in the road the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passengers.” Now the law has been wisely changed and the people who know most about the facts of a case are called to tell the court what they know.
Again, a century ago there were no limited companies. The company with limited liability is one of the greatest milestones by the wayside of legal progress. But it cannot he denied that the institution of the limited company has afforded very generous scope to the ingenuity of balance sheet manipulators, in parliamentary languages and swindlers, in plain English. Wordsworth has assured us that:
One impulse from the vernal wood
May teach you more of man,
Of moral evil and of good
Than all the sages can..
But it has been sorrowfully confessed that as a student of moral evil you can learn more from section 285 of the Indian Companies Act, which deals with defaults and delinquencies of directors, than from all the woods and forests in the world.
Even an apparently plain crime like bigamy has had an interesting historical evolution. In a statute, de Bigamis of Edward the First, we read that the felony of bigamy then marrying two virgins successively one after another, or marrying a widow; but this is of course no longer law. The offence of bigamy is now limited to going through a second marriage by one who has a former spouse still living. The curious definition expressed in the Plantagenet Statute is derived from the Canon law.
As late ire 1818 a man was challenged in the court to ordeal by battle, and the court was compelled to hold that such a right still existed in a challenger. In the ancient days the plaintiff had the option of proving his case in the court or proving the justice of his cause by defeating the defendant in battle. By the end of the Middle Ages this had become a dead letter, but by a strange over sight the law had not been repealed. Therefore Lord Ellenborough, who decided the case of Ashford v, Thoronton in 1818, was compelled to acknowledge the plaintiff right to challenge the defendant in battle. In the other words of the Lord Chancellor, ‘The original law of the land is in favour of wager by battle, and it is our duty to pronounce the law as it is and not as we may wish it to be. Whatever prejudices, therefore, may justly exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it.”
The offence o contempt of court has also a story of absorbing interest behind it. In old days persons who were guilty of contempt in the presence of court had their right hands cut off. An Act of Parliament of Henry the Eighths provides for the execution of this barbarous sentence but also (it must be admitted) for the kindly after-treatment of the offender minus the right hand The Act in its infinite kindness provides that the victim shall have a surgeon at. hand to sear the stump of the right arm, a sergeant of the poultry with a cock ready for the surgeon to wrap about the stump, a sergeant of the pantry with bread to eat, and a sergeant of the cellar with a cup of red wine to drink. The law may be an ass, but it has now become a gentleman and no longer provides for barbarous sentences.
The most famous case of contempt of court occurred in 1772 when one, Johns was committed to the Fleet for contempt. It appeared that he had compelled a poor wretch who sought to serve him with a witness summons to devour both the parchment and the wax seal of the court, and had then, after kicking him so savagely as to make him insensible, ordered his body to be cast into the river. Evidently, volcanic range was the favourite indoor sport of the historic Johns. Of course it is no contempt merely to tear up the writ of summons in the presence of the officer of the court, because, once the service is lawfully effected, the court is indifferent to the treatment of its stationery. The case of Johns is only one of the innumerable cases in the Law Reports which are so curiously instinct with the eternal Human Comedy.