« ForrigeFortsett »
OF THE PRINCIPAL PUBLICATIONS ON THE COMMON LAW.
THE reports of adjudged cases are admitted to contain the highest and most authentic evidence of the principles and rules of the common law; but there are numerous other works of sages in the profession, which contribute very essentially to facilitate the researches, and abridge the labour of the student. Those works acquire by time and their intrinsic value, the weight of authority ; and the earlier text books are cited and relied upon as such, in the discussions at the bar and upon the bench, in cases where judicial authority is wanting.
One of the oldest of these treatises is Glanville's Tracta- Glanville. tus de Legibus Anglia, composed in the reign of Henry II. It is a plain, dry, perspicuous essay on the ancient actions, and the forms of writs then in use. It has become almost obsolete, and useless for any practical purpose, owing to the disuse of the ancient actions; but it is a curious monument of the improved state of the Norman administration of justice. It is peculiarly venerable, if it be, as it is said, the most ancient book extant upon the laws and customs of England. It has been cited, and commented upon, and extolled, by Lord Coke, Sir Matthew Hale, Sir Henry Spelman, Selden, Blackstone, and most of the eminent lawyers and antiquaries of the two last centuries. Mr. Reeves says, that he incorporated the whole of Glanville into his history of the English law.
Bracton wrote his treatise De Legibus et Consuetudinibus Bracton. Anglia, in the reign of Henry III., and he is said to have been a judge itinerant in that reign, and professor of law at
Oxford. He is a classical writer, and has been called, by a perfect judge of his merits, the father of the English law, and the great ornament of the age in which he lived. His work is a systematic performance, giving a complete view of the law in all its titles, as it stood at the time it was written ; and it is filled with a copious and accurate detail of legal learning. It treats of the several ways of acquiring, maintaining, and recovering property, much in the manner of the institutes of Justinian. The style is clear and expressive, and sometimes polished; and it has been imputed to the influence of the civil and canon law, which he had
died and admired ; and the work evinces, by the freedom of the quotations, that he had drank deep at those fountains.
Sir William Jones says, he is certainly the best of our juridical classics, though he is perfectly aware that Bracton copied Justinian almost word for word. In the reign of Edward I., Bracton was reduced into a compendium by Thornton, which shows, says Selden, how great the authority of Bracton was in the time of Edward I. He continued to be the repository of ancient English jurisprudence, and the principal source of legal authority, down to the time of the publication of the institutes of Lord Coke.
Staunforde, in his Pleas of the Crown, published about the time of Philip and Mary, bears strong testimony to the merits and to the authority of Bracton. It is stated in Plowden, that neither Glanville nor Bracton were to be cited as authorities, but rather as ornaments to the discourse, and in several other books the same thing was said. But Mr. Reeve, in his history of the English law, justly yindicates
a 4 Reeves' History of the English Law, 570. 6 Dis rtation annered to Flela, ch. 2. ε. 1. c P. 357, 358. di Show. 118. 11 St. Tri. 143. e Vol. 4. p. 570, 571.
the character of Bracton from such unmerited aspersion ; and, what is as much, and perhaps more to the purpose, the learned Selden, whose knowledge of English legal antiquities was unrivalled, declares, that this notion is founded in
Glanville and Bracton are authors of great service to all who apply themselves to the study of the law, and are desirous of knowing its origin and progress from the very foundation. They contain numberless things, said Selden, which in his day either remained entire, or were only partially abrogated; and they contain such information on ancient customs and laws, as to carry with them authority, as well as illustration. Lord Holt, in the great case of Coggs v. Bernard, made free use of Bracton, and spoke of him as an old author, but one full of reason and good
Britton and Fleta, two treatises in the reign of Edw. I., Britton and were nothing more than appendages to Bracton, and from which they drew largely. Lord Coke says, that Britton was Bishop of Hereford, and of profound judgment in the common law, and that Fleta was written by some learned lawyer, while in confinement in the Fleet prison. The dissertation which Selden annexed to the edition of Fleta, printed in his time, is evidence of the high estimation in which the work was then held; and it is a little singular, that President Henault, in his chronological abridgment of the History of France, should refer to this ancient English treatise of Fleta as an historical authority.
Sir John Fortescue's treatise De Laudibus Legum Anglia, was written in the reign of Henry VI., under whom he forde.com was Chief Justice, and afterwards Chancellor. It is in the form of a dialogue between him and the young prince, and he undertakes to show, that the common law was the most
c Tom. 1. 258.
a Selden's Dissertation, ch, 1. sec. 3. b Prof. to 10 Co.
reasonable, and the most ancient in Europe, and superior to the civil law. It displays sentiments of liberty, and a sense of a limited monarchy, remarkable, in the fierce and barbarous period of the Lancastrian civil wars, and an air of probity and piety runs through the work. He insisted, for instance, that the conviction of criminals by juries, and without torture, was much more just and humane than the method of the continental nations; and that the privilege of challenging jurors, and of bringing writs of attaint upon corrupt verdicts, and the usual wealth of jurors, afforded that security to the lives and property of English subjects, which no other country was capable of affording. He run a parallel, in many instances, between the common and the civil law, in order to show the superior equity of the former, and that the proceedings in courts of justice were not so dilatory as in other nations. Though some of the instances of that superiority which he adduces, such as the illegitimacy of ante-nuptial children, and the doctrine of feudal wardships, are of no consequence, yet the security arising from trial by jury, and the security of life and property by means of the mixed government of England, and the limitations of the royal prerogative, were solid and preeminent marks of superiority.
This interesting work of Fortescue has been translated from the Latin into English, and illustrated with the notes of the learned Selden ; and it was strongly recommended, in a subsequent age, by such writers as Sir Walter Raleigh, and St. Germain. And while upon this author, we cannot but pause and admire a system of jurisprudence, which, in so uncultivated a period of society, contained such singular and invaluable provisions in favour of life, liberty, and property, as those to which Fortescue referred. They were unprecedented in all Greek and Roman antiquity, and, being preserved in some tolerable degree of freshness and vigour, amidst the profound ignorance and licentious spirit of the feudal ages, they justly entitle the common law to a share of that constant and vivid eulogy which the English law
yers have always liberally bestowed upon their municipal institutions.
Littleton's Book of Tenures was composed in the reign Littleton. of Edward IV., and it is confined entirely to the doctrines of the old English law, concerning the tenure of real estates, and the incidents and services relating thereto. In the first book, Littleton treats of the quantity of interest in estates, under the head of fee simple, fee tail, tenant in dower, tenant by the curtesy, tenant for life, for years, and at will. In the second book he treats of the several tenures and services by which lands were then held, such as homage, fealty, villenage, and knight service. In the third book he treats of divers subjects relative to estates, and their tenures, under the heads of parceners, joint tenants, estates on condition, releases, warranty, &c. He explained the learning of that period on the subject of tenures and estates, with a felicity of arrangement, and perspicuity and precision of style, that placed him above all other writers on the law. No one ever attained a more decided and permanent reputation for accuracy and authority. Lord Coke says, that Littleton's Tenures was the most perfect and absolute work, and as free from error as any book that ever was written on any buman science; and he is justly indignant at the presumptuous and absurd censures which the celebrated civilian Hotman was pleased to bestow on Littleton's clear and accurate view of English feudal tenures. He said, he had known many of his cases drawn in question, but never could find any judgment given against any of them, which could not be affirmed of any other book in our law. The great excellence of Littleton is his full knowledge of the subject, and the neatness and simplicity of his manner.
He cites but very few cases, but he holds no opinion, says his great commentator, but what is supported by authority and
A great part of Littleton is not now law, or is en
a Preface to Coke Lilllelon, and to 10 Co.