REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00420.x |
| Date | 01 March 1939 |
| Published date | 01 March 1939 |
324
MODERN
LAW
REVIEW
March,
1939
REVIEWS
SOME
MAKERB
OF
ENQLXSE
LAW:
The
Tagore
Lectares,
1937-8.
By
SIR
WILLIAM HOLDSWORTH. Cambridge University Press,
1938.
xi
+
308
pp.
16s.
net.
Sir
William Holdsworth’s latest contribution to the literature of legal
history consists of the twelve Tagore Lectures delivered
at
Calcutta
University in the winter of
1937-8.
They are much more than
a
collection
of legal biographies
;
as
the preface justly claims, they constitute nothing
less than
a
“short biographical history of English Law.” Indeed, save
perhaps in the last
two
lectures, the biographical element is very slight,
sufficient only to indicate the place
of
the person in the wider canvas of
history. Thus Littleton and Fortescue do no more than lend their names
to
a
lecture which sketches the growth and achievements
of
the four-
teenth and fifteenth centuries.
St.
Germain, More, Ellesmere and Bacon
become events in the early history of Equity. The lecture on Hardwicke
and Eldon contains by
far
the best short account which has yet appeared
of the dvation of the principles
of
Equity and
of
its relations with the
Common Law. Perhaps the
best
lecture of all
is
that entitled “Renais-
sance, Reformation, and Reception
of
Roman Law”
;
it
is
an admirable
sketch
of
one of
the
most critical
periods
in English legal history inserted
with perfect balance in
its
European setting
;
here the biographical formula
is
completely discarded.
It
will be seen that
this
method of treatment places in the hands of
the student, in compact form, much of the valuable material contained
in the twelve volumes
of
the
History
of
English Law,
and
this
in itself
would
be
sufficient to place the present work in the category of standard
students’ textbooks. But
this
is
not all. No doubt the biographical
approach
is
artificial in that
it
is
compelled to ignore, or
at
least to slur
over, those anonymous contributions, such
as
the Forms of Action, which
provide the raw material of individual effort. None the less, this very
process
of
selection has enabled Sir William to produce that raritv,
a
textbook
of
legal history which can be read
as
a
whole; one, moreover,
which perhaps for the
first
time gives
a
vivid impression of unity not
merely in the development of isolated branches of the law but in the
development
of
English Law
as
a
whole.
It
is
a
historical demonstration
of
the existence of an organic individuality,
of
what Sir William calls the
“spirit of the rules of English law.” Nor is the reader left in doubt
as
to
the nature of
this
spirit. To Lord Macmillan, who in
his
Two Ways
of
Thinking
has reminded us of one aspect of the individuality of English
law,
it
would no doubt be an attitude of mind. To Sir William
it
is
this
and something more
:
“English lawyers have never ignored legal theories,
but they have declined,
as
Blackstone’s
Commenlavies
show, to
be
mastered
by any one of them. They have preferred to build upon the stable founda-
tion of the concrete facts
of
life and the needs of human beings, rather
than upon the shifting sands of the conflicting theories of ingenious
philosophers.” Add to this the “historical tradition” which to Sir William
is the product of the English system of case law, and we have two principles
which are the essential clues to the development
of
English law.
These two principles might also serve
as
Sir William’s confession of
faith. The concluding pages of these lectures reveal him
as
a
jurist of the
historical school, with all its negative virtues, and with enough of that
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