Edward Jenks

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It is the glory of English Law, that its roots are sunk deep into the soil of national history; that it is the slow product of the age long growth of the national life.

Edward Jenks (1861–1939) was a jurist and noted writer on law and its place in history. He was a brilliant law student at King's College and was placed first in the law tripos of 1886. He was called to the bar in 1887. Jenks was a Fellow of the British Academy. He was a founder of the Society of Public Teachers of Law and its secretary 1909-1917.

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A Short History Of The English Law (First Edition) (1912)[edit]

  • It is the glory of English Law, that its roots are sunk deep into the soil of national history; that it is the slow product of the age long growth of the national life.
    • Chapter I, Old English Law, p. 3
  • Only when a disputed point has long caused bloodshed and disturbance, or when a successful invader (military or theological) insists on a change, is it necessary to draw up a code.
    • Chapter I, Old English Law, p. 4
  • The thegn who deems an unjust doom is to lose his thegnship. It is a principle which can be widely applied
    • Chapter I, Old English Law, p. 7
  • The man who has been wounded by a chance arrow must not shoot at sight the first man he happens to meet.
    • Chapter I, Old English Law, p. 7
  • But the fact that the word "chattel" has survived as the inclusive legal term for all movable goods, points, not merely to the great importance of cattle in primitive times, but to the importance of the notion of sale or barter in generating the institution of property.
    • Chapter I, Old English Law, p. 11
  • Whatever else the Norman Conquest may or may not have done, it made the old haphazard state of legal affairs forever impossible.
    • Chapter II, Sources Of The Common Law, p. 17
  • Every man, noble and simple alike, should hold his land as a pledge of god behaviour. His duties, to King, lord, and neighbour, should be settled once and for all; and, if he failed in them, he should be turned out of his home and left to starve. It was a drastic scheme; but a conqueror holding a conquered country by the force of the sword cannot afford to be squeamish.
    • Chapter III, Feudalism And Land Law, p. 27
  • In the Laws of Cnut, it was formally laid down that no one is to bother the King with his complaints, so long as he can get Justice in the Hundred.
    • Chapter IV, Improved Legal Procedure, p. 39
  • Legal business has, from the beginning of time, been profitable - to those who have conducted it; because it is concerned with things that touch men's passions very deeply, and because men are willing to pay, and pay highly, for wisdom and skill in the conduct of it. The real merits of the Norman lawyers were, not altruism, but ability, energy, and enthusiasm for their work.
    • Chapter IV, Improved Legal Procedure, p. 40
The 'inquests' which resulted in the compilation of the Domesday Book made a vivid and unfavorable impression on the country.
  • The invention of writs was really the making of the English Common Law; and the credit of this momentous achievement, which took place chiefly between 1150 and 1250, must be shared between the officials of the royal Chancery, who framed new forms, and the royal judges, who either allowed them or quashed them.
    • Chapter IV, Improved Legal Procedure, p. 45
  • The 'inquests' which resulted in the compilation of the Domesday Book made a vivid and unfavorable impression on the country. A similar effect was produced by the inquests of 1166 and 1170, before alluded to. Even to this day, the word 'inquisitorial' bears the burden of historical unpopularity.
    • Chapter IV, Improved Legal Procedure, p. 47
  • This again, led judges and lawyers to insist on the importance of possession, or seisin, as evidence and presumptions of title, and thus to give to the seisin of land that unique importance in English land law which it has ever been held.
    • Chapter IV, Improved Legal Procedure, p. 50
  • The common law of chattels, that is to say, the law ultimately adopted by the King's courts for the regulation of disputes about the ownership and possession of goods, was, to be a substantial extent, a by-product of that new procedure which had been mainly introduced to perfect the feudal scheme of land law.
    • Chapter V, The Law Of Chattels, p. 55
  • What is technically called the 'fungibility' of money, is its chief value as an article of commerce; and this fact could not long remain recognized, even by such a conservative class as legal officials.
    • Chapter V, The Law Of Chattels, p. 58
  • It is true, that a Law of Contract based on causae will always be an arbitrary and inelastic law; but it is a kind of law with which some great nations are satisfied at the present day.
    • Chapter V, The Law Of Chattels, p. 66
  • It was not long before English Law took the one step needed to produce the modern scheme of legal remedies. And when it did, it used the Writ of Trespass as the starting point.
    • Chapter V, The Law Of Chattels, p. 67
  • But we remember that it was just precisely in the reign of Richard II that the Peasants' War, following upon the changes wrought by the visitations of the Great Plague, virtually destroyed serfdom as a personal status.
    • Chapter VI, Triumph Of The King's Courts, p. 72
  • The popularity of the famous device of the use of lands into England is said to be largely due to the mendicant friars of the then new Orders of St. Dominic and St. Francis, who, arriving in this country, in the first half of the thirteenth century, found themselves hampered by their own vows of poverty, no less than by the growing feeling against Mortmain in acquiring the provision of land absolutely necessary for their rapidly developing work.
    • Chapter VII, New Interests In land, p. 96
The feudal warranty is, doubtless derived from the ancient duty of the feudal lord to protect his liege man 'with fire and sword against all deadly'. It was of the essence of the feudal bond, that the vassal should be under his lord's protection.
  • The fate of the Statute of Uses is one of the most curious in legal history. Its secret and unavowed purpose, of securing the estates of the monasteries for the Crown, it accomplished. Its ostensible purpose, fortified by a wealth of hypocritical justification, it entirely failed to achieve. Not only were devises of lands, after a brief interval, put on a legal footing; but, as is well known, uses of lands as distinguished from legal estates, soon re-appeared in full vigour. Whilst in unforeseen directions, that statute worked havoc in the medieval system of conveyancing; and gradually modernized it out of existence.
    • Chapter VII, New Interests In land, p. 99
  • A statute of 1344 shows some weakness; but the statute of 1391 is memorable, not merely as being the Mortmain Code of three centuries, but as extending the rule of mortmain to all bodies, religious and secular alike, having perpetual succession. For this extension marks the definite recognition by English Law of the corporation, or, as it is sometimes called, the 'fictitious person' - the legal personality which is not restricted to the limits of individual life. The gradual evolution of this institution is one of the most fascinating chapters in legal history...
    • Chapter VIII, Methods Of Alienation, p. 106
  • The feudal warranty is, doubtless derived from the ancient duty of the feudal lord to protect his liege man 'with fire and sword against all deadly'. It was of the essence of the feudal bond, that the vassal should be under his lord's protection.
    • Chapter VIII, Methods Of Alienation, p. 109
  • But then a daring evasion by a leading conveyancer, known as the Lease and Release, received judicial sanction; and commenced a successful career of more than 200 years. The Lease and Release, attributed to Serjeant Moore, was based on the fact that the Statute of Inrolments did not apply to terms of years.
    • Chapter VIII, Methods Of Alienation, p. 121
  • Thus the period we are studying is remarkable for achieving, not merely the right of free alienation of land, but also the right of alienation by secret conveyance. The latter achievement we may sometimes regret; but it was, probably, necessary for the complete emancipation of land from its its ancient tribal and feudal bonds.
    • Chapter VIII, Methods Of Alienation, p. 122
  • First in point of time and interest comes the mortgage debt, i.e. the claim for the return of money lent on the security of some tangible object. Such claims are among the earliest fruits of a commercial civilization, and are nearly always affected the same way, viz. by the deposit or pledge of the security with the creditor, to be redeemed or returned on the payment of the debt.
    • Chapter IX, The Law Of Personal Property, p. 123
It was natural that the direct wielders of the royal prerogative, men who sat in the Star Chamber and the Privy Council, who knew the secrets of the State and the necessity for prompt action, should despise the merely declaratory character of a good deal of Common Law process.
  • We regard an action of Contract as an action to prevent or compensate for a breach of a promise; an action of Tort as an action to to punish or compensate for a wrong, such as assault or defamation, which has not any necessary connection with a promise.
    • Chapter X, Contract And Tort, p. 132
  • The progress of the nation in wealth and refinement, however, naturally brought with it an increase in the number of crimes, as the old definition of offences became inadequate.
    • Chapter XI, Criminal Law And Procedure, p. 149
  • The 'Little' or 'Barebones' Parliament, summoned by Oliver Cromwell to meet at Westminster on 4th July, 1653, after the dissolution of the remains of the Long Parliament, may have been an unpractical body, so far as the task of administration in troublous times was concerned. But it seems quite possible that the wealth of contumely and scorn which has been poured upon it was, originally, due quite as much to the fierce anger of vested interests against outspoken criticism, as to any real vagueness or want of practical wisdom in the plans of the House itself.
    • Chapter XII, Civil Procedure In The Middle Ages, p. 178
  • The process of specialization tends, almost inevitably, to narrow the sources from which the rules of any science are drawn; and English law is no exception from this rule.
    • Chapter XIII, Modern Authorities And The Legal Profession, p. 185
  • It was natural that the direct wielders of the royal prerogative, men who sat in the Star Chamber and the Privy Council, who knew the secrets of the State and the necessity for prompt action, should despise the merely declaratory character of a good deal of Common Law process. To them we doubtless owe those four great pillars of Chancery jurisdiction, the injunction, the decree, the sequestration, and the commission of rebellion.
    • Chapter XIV, Reform By Equity, p. 209
  • Is it surprising that modern English land law should resemble a chaos rather than a system?
    • Chapter XV, Changers In Land Law, p. 237
  • The practice of creating chartered joint-stock companies of a modern type seems to have begun at the commencement of the seventeenth century; and the formation of the East India Company is one of the earliest, if not the very earliest, examples. At first, it appears, the 'joint stock' of the company was separately made up for each ship; perhaps for each voyage. But, in the year 1612 the Company made the momentous resolve to have one joint stock for the whole of its affairs, and thus inaugurated a new epoch. The East India Company, or Companies, (for there were two of them), were followed by the Hudson's Bay Company (1670), the existence of which was recognized by statute in 1707, and by the Bank of England and the notorious South Sea Company.
    • Chapter XVI, New Forms Of Personal Property, p. 287
  • In the year 1871, Mr. Gladstone's Government introduced and passed the first Trade Union Act, by far the most important victory, up to that time achieved by the champions of labour organizations.
    • Chapter XVII, Contract And Tort In Modern Law, p. 322
Thus, at long last, as a visible emblem of unity was daily growing in the new Palace of Justice then being erected in the Strand, half way between the historic site of Westminster the historic centre of the commercial capital of the world, there began to grow up, in the minds of reformers, the vision of a great and united Supreme Court of Justice, with uniform principles, uniform law, and uniform procedure.
  • It may be that the requirement of a preliminary approval by the Grand Jury, of all accusations of a serious nature, justified the boast that a man was presumed to be innocent until he was 'found' guilty; but that presumption certainly ceased to have practical application, so soon as the Grand Jury had returned a 'true bill'.
    • Chapter XVIII, Reform In The Criminal Law, p. 332
  • Perhaps the best testimony to the effectiveness of the reforms of 1852 is the fact, that men of a slightly later generation, familiar with the working of the courts half a century after, find it difficult to believe that such abuses as are plainly described by the legislation of that year, should really have existed in the middle of the nineteenth century.
    • Chapter XIX, Modern Civil Procedure, p. 360
  • Thus, at long last, as a visible emblem of unity was daily growing in the new Palace of Justice then being erected in the Strand, half way between the historic site of Westminster the historic centre of the commercial capital of the world, there began to grow up, in the minds of reformers, the vision of a great and united Supreme Court of Justice, with uniform principles, uniform law, and uniform procedure.
    • Chapter XIX, Modern Civil Procedure, p. 364

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