5. Interesting Character of Reports. I have now finished a succinct detail of the principal reporters; and when the student has been thoroughly initiated in the elements of legal science, I would strongly recommend them to his notice. The old cases, prior to the year 1688, need only be occasionally consulted, and the leading decisions in them examined. Some of them, however, are to be deeply explored and studied, and particularly those cases and decisions which have spread their influence far and wide, and established principles which lie at the foundations of English jurisprudence. Such cases have stood the scrutiny of contemporary judges, and been illustrated by succeeding artists, and are destined to guide and control the most distant posterity. The reports of cases since the middle of the last century ought, in most instances, to be read in course, and they will conduct the student over an immense field of forensic discussion. They contain that great body of the commercial law, and of the law of contracts, and of trusts, which governs at this day. They are worthy of being studied even by scholars of taste and general literature, as being authentic memorials of the business and manners of the age in which they were composed. Law reports are dramatic in their plan and structure. They abound in pathetic incident, and displays of deep feeling. They are faithful records of those "little competitions, factions, and debates of mankind” that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, and the machinations of fraud. They give us the skilful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true por

traits of the talents and learning of the sages of the law. * 497 *We should have known but very little of the great mind and varied accomplishments of Lord Mansfield, if we had not been possessed of the faithful reports of his decisions. It is there that his title to the character of "founder of the commercial law of England" is verified. A like value may be attributed to the reports of the decisions of Holt, Hardwicke, Willes, Wilmot, DeGrey, Camden, Thurlow, Buller, Kenyon, Sir William Scott, Grant, and many other illustrious names, which will be immortal as the English law. Nor is it to be overlooked as a

matter of minor importance, that the judicial tribunals have been almost uniformly distinguished for their immaculate purity. Every person well acquainted with the contents of the English reports must have been struck with the unbending integrity and lofty morals with which the courts were inspired. I do not know where we could resort, among all the volumes of human composition, to find more constant, more tranquil, and more sublime manifestations of the intrepidity of conscious rectitude. If we were to go back to the iron times of the Tudors, and follow judicial history down from the first page in Dyer to the last page of the last reporter, we should find the higher courts of civil judicature, generally, and with rare exceptions, presenting the image of the sanctity of a temple, where truth and justice seem to be enthroned, and to be personified in their decrees.

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LECTURE XXII.

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 labor of the student. These 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 Tractatus de Legibus Angliæ, composed in the reign of Henry II., in which he was chief justiciary, and presided in the aula regis. 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. (a) 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

(a) In the History of the Boroughs and Municipal Corporations of the United Kingdom, by Messrs. Merewether & Stephens (i. Int. 18), all that is contained in the earlier Saxon laws, and in those of William I. and Henry I., and the charters of those periods, is said to be in a great degree repeated in Glanville, and again in Britton. Ib. i. 476. Dr. Irving, in his Introduction to the Study of the Civil Law, 93, says that Glanville's Treatise is under considerable obligation to the civil law.

* 500

Angliæ, in the reign of Henry II., 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, (a) 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 copious and accurate details 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, clear, expressive, and sometimes polished, has been ascribed to the influence of the civil and canon law, which he had studied 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. (b) In the reign of Edward I., Bracton was reduced into a compendium by Thornton, which shows, says Selden, (c) 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

(a) Reeves's History of the English Law, iv. 570.

(b) Mr. Spence, in his Equitable Jurisdiction of the Court of Chancery, i. 118132, considers that Bracton drew the learning of his treatise, not from the AngloSaxon or Anglo-Norman jurisprudence, but essentially from the Roman law.

(c) Dissertation annexed to Fleta, c. ii. sec. 1.

1 See the very interesting treatise on Bracton and his Relation to the Roman Law, by Professor Carl Guterbock, translated by Brinton Coxe. Philadelphia: Lippincott & Co., 1866.

A new and critical edition of Britton, by Mr. F. M. Nichols, with variorum readings and a translation, has been published from the Clarendon Press.

Mr. Finlason, the editor of the last edition of Reeves's History of the English Law, in his notes to that work, makes very large use of the Mirror of Justices, post, 501, n. (e), which, he says, "though

66

in its present form as recent as the reign of Edward I., incorporates an earlier work of the age of Alfred." Vol. i. introduction, lxiii, n. 2. See also p. 24, n. (b), and especially ii. 232, n. (a). On the whole there is no book on the law of greater use and value to a legal historian." But we have the much greater authority of Palgrave (2 English Commonwealth, cxiv) that "we are compelled to reject it as evidence concerning the early jurisprudence of Anglo-Saxon England;" and he calls it "a very curious specimen of the apocrypha of the law," ib. note.

of Philip and Mary, bears strong testimony to the merits and to the authority of Bracton. It is stated in Plowden, (d) 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. (e) But Mr. Reeves, in his His* 501 tory of the English Law, (f) justly* vindicates 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 error. 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. (a) 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 full of reason and good sense.

Britton and Fleta, two treatises in the reign of Edward I., were nothing more than appendages to Bracton, and from whom they drew largely. Lord Coke says (b) 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. (c) 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, (d) should refer to this ancient English treatise of Fleta as an historical authority. (e)

(d) P. 357, 358.

(f) Vol. iv. 570, 571.

(a) Selden's Dissertations, c. 1, sec. 3.

(b) Pref. to 10 Co.

(e) 1 Show. 118; 11 State Trials, 143.

(c) Lord Campbell, in his very interesting Lives of the Lord Chancellors, says that Britton set the example of writing law books in French, which was followed for some centuries.

(d) Tom. i. 258.

(e) The Mirror of Justices was said, recently, by Ch. J. Tindal (6 Bing. N. C. 237), to be a book of great authority, and of the earliest, though uncertain date. Lord Coke spoke of its authority and antiquity in high terms, and that most of it was written before the conquest. Pref. to 9 Co. and Pref. to 10 Co. Mr. Reeves,