REVIEWS
| Published date | 01 October 1953 |
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02140.x |
| Date | 01 October 1953 |
REVIEWS
A
HISTORY
OF
ENGLISH LAW.
By
SIR
WILLIAM
HOLDSWOPTH,
O.M.
Vol.
XIII.
Edited by
A.
L.
Goodhart and
H.
G.
Hanbury.
[Methuen
&
Co.,
Ltd. London.
xlviii
and
808
pp.
70s.
net.]
THE
thirteenth volume of Holdsworth’s
History
was practically completed in
manuscript by the beginning of the war; during those dangerous days it was
sent for safety to the United States; but Holdsworth did not survive the war
and
it
has been left to his literary executors, Professors Goodhart and Hanbury,
to steer this bulky volume through the press. To them we must first do
homage. They have supplied commentaries on Tidd’s
PmCtkfJ
and Maddocks’
Epity,
the compilation of which Holdsworth clearly postponed until too late,
and they have done this
so
well as to make us regret all the more that other
lacunae of the same kind have not been filled in the same way; we would have
welcomed a short note on Allen’s
Prerogative,
interesting to the historian
if
only as the source of much confusion over the meaning of
folk-lad;
above
all something should have been said of H.
J.
Stephen, the Stephen of the
Commentaries and the author of
a
famous book on Pleading first published
in
1824
and at least equal in importance to Tidd’s
Pmctice.
They have quietly
added a few footnotes and brought up to date references to those textbooks
of
the period which have survived in new editions to our own day. In one instance
they have had to guess, and we venture
to
think that they have guessed wrongly.
Holdsworth, minded to illustrate the literary qualities of Stowell’s judgments,
indicated
a
passage in his judgment in
The
Indian
Chief
seemingly by tran-
scribing its first and last sentences. Those sentences alone survive in the text,
the central portion being supplied by an editorial condensation on the grounds
that it is not clear from the manuscript how much of the judgment the learned
author intended to reproduce. Now there is nothing in those two sentences
to
warrant their inclusion in that
“
anthology of striking passages
”
which
Holdsworth had in mind. The omitted passage, embellished with an apt
Vergillian verse, is another matter, and we believe that Holdsworth wanted the
whole paragraph,
a
belief that is strongly supported by his
Some
Mhrs
of
EngCish
b
where the omitted passage is printed in full with an introduction
in words identical with those of the
History
But the editors’ main task has been to prepare the original matter for the
press,
a
task in any event sufficiently great when it involves
700
pages
closely
packed with detail, figures, names, dates and all the apparatus of
a
learned
expcsition
mm
rw
poma,
but which if the working manuscript be anything like
those Holdsworth manuscripts we have seen, must have been almost over-
powering, calling for all that patience and erudition which the editors
fortunately possess. That they have triumphed will be evident
to
every reader;
we ourselves have noticed only one trivial blemish (the “strip settlement” of
p.
296
we count
as
entire gain)-where
a
passage from the
Luw
Redew
has
been allowed
to
intrude upon the judgment of Lord Justice Turner in
JBLMZ
v.
Morris
(see p.
629).
Nor
must we fail to echo the editorial thanks to
Dr.
Jaworczykowski, who has checked all the references and compiled the
indices; one index in particular devoted to all books and periodicals referred
to
or
cited in the text and notes forms an invaluable bibliography for the period.
Here then is the authentic Holdsworth, warts and all-r, as we feel
sure he would himself have phrased it, with all the defects of his qualities.
Holdsworth was no stylist, though a good judge of legal style in others. Yet
he passes one of the first requirements of the good writer by displaying in
every page his own especial personality. One can hear almost in each sentence
527
528
THE
MODERN
LAW
REVIEW
VOL.
16
his well-remembered voice, quiet, awkward perhaps, but never monotonous.
Here too is his remarkable grasp of detail and his extraordinary capacity for
marshalling his facts in almost mathematical array. Here too is that delightful
twinkle in his eye
as
he savours to the full some legal anecdote or the pedant
humour of the
Plsader‘u
Guide.
Here
too
is
his deep humanity, illuminating
and illuminated by his intense interest in the lawyers who applied and created
the law.
Of
the many judges who appear in these
pages there is perhaps only one (Leach
V.C.)
for whom there is nothing
good
to be said. Shadwell is almost in like case, but who could be hard upon one
who is said to have granted an injunction while bathing? And for some
at
least
he
is
prepared to reduce the sentence passed on them by their contem-
poraries. Erskine, unchallengeably supreme
as
an advocate, might after all
have had more purely legal talents than his brethren gave him credit for.
Even Brougham, the arch-spiv of the law, squandering his great talents with
the irresponsibility of a charlatan, even
“
Lord Facing-both-ways,”
as
Peacock
called him, finds salvation at last for his loyalty to the cause of law reform,
the
one consistency of his life. Such are the traits we knew and loved during
Holdsworth‘s life-such they appear
as
he lives again in these pages.
This thirteenth volume covers the period from
1793
to
1832,
a
period
not propitious some may think
for
the display of Holdsworth’s genius. The
eighteenth century had gone, leaving behind it besides
a
new economic theory
an emotional urge towards democracy which found expression in trade unionism
and corresponding societies and
a
host of political nostrums from communism
to hero worship. Now Holdsworth was no democrat, and he took no pains to
avoid expressing in his
Hirtory
a
distrust
of the growing egalitarianism
of
the
nineteenth century-“ the tacit acceptance
of
ill-digested democratic theories
as
to the presumptive right of every man to
a
vote.” He was perhaps happiest
in the eighteenth century with
its
balanced constitution dependent for the main-
tenance of
its
balance upon logical anomalies, especially those most logically
indefensible anomalies, the rotten boroughs themselves. This balance was
to
be
swept away by the Reform Act. The constitution was thereby irreversibly
directed towards an extension of its democratic elements, artificial in them-
selves and hitherto incapable of control by artificial checks and balances,
a
movement which has inevitably “tended to give undue weight to the most
numerous and the least educated class of the community.” Mill’s simple faith
in the majority was based upon the “enormous mistake of supposing that the
behaviour of the lower classes in a manufacturing town under
a
democratic
constitution would be the same
as
the behnviour of the lower classes in the
country
or
a
country town under the aristocratic constitution
of
the eighteenth
century.” Thus it is no doubt true, as Bentham pointed out, that under any
general scheme of confiscation of property it would in the long run be the poor
who would suffer the most, yet “the poor are the
last
people to take long
views ”-as witness much of
our
“
socialist legislation
”
(Holdsworth did not
live to see the election
of
1946
but he characteristically refused to adopt Dicey’s
neutral tinted
“
collectivism
”)
which
“
will in time have the same effect
as
religious persecution had in some continental countries in the sixteenth and
seventeenth centuries. In the future as in the past the elimination of the most
independent and progressive minds in
a
nation will permanently lower its moral
and intellectual standard.” In the meantime we have to live under
a
democratic
constitution in which “there are very few checks upon the sovereignty
of
the
majority of the House of Commons and its agent and master the Cabinet.”
These are hard sayings, the product no doubt
of
a severe intellectualism
which could coexist with Holdsworth’s humanity only perhaps after
a
lifetime’s
residence in Oxford. The validity of his views is irrelevant, but they inevitably
raise the question-is it possible for one who holds them to give an account of
a
period which was essentially a seething cauldron of new ideas with which he
was not in sympathy, and to trace their influence on the developinent of English
law?
Now
history, even legal history, cannot be written without bias, and it
Here are no harsh verdicts.
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