« iepriekšējāTurpināt »
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 Sir John 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
a Selden's Dissertation, ch. 1. sec. 3. b Prof. to 10 Co.
c Tom. 1. 258.
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 human 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. cites but very few cases, but he holds no opinion, says his great commentator, but what is supported by authority and reason. A great part of Littleton is not now law, or is en
a Preface to Coke Littleton, and to 10 Co.
tirely obsolete with us; and particularly much of the matter in the chapters on estates in fee tail, copyholds, feudal services, discontinuance, attornment, remitter, confirmation, and warranty. But, even at this day, what remains concerning tenures, cannot be well understood without a general knowledge of what is abolished; and even the obsolete parts of Littleton can be studied with pleasure and profit, by all who are desirous to trace the history and grounds of the law. It has been supposed by Mr. Butler, that Littleton's treatise would still be a proper introduction to the institutes of the English law on the subject of real estates.
Perkins' Treatise of the Laws of England, written in the reign of Henry VIII., has always been deemed a valuable book for the learning and ingenuity displayed in it relating to the title and conveyance of real property. Coke said it was wittily and learnedly composed; and Lord Mansfield held it to be a good authority in point of law. It treats of grants, deeds, feoffments, exchange, dower, curtesy, devises, surrenders, reservations, and conditions; and it abounds with citations, and supports the positions laid down by a reference to the Year Books, or Fitzherbert's Abridg
The Dialogue between a Doctor of Divinity and a Student in Law, was written by St. Germain, in the reign of Henry VIII., and discusses in a popular manner many principles and points of the common law. The seventeenth edition of this work was published in 1787, and dedicated to the younger students and professors of law. It has always been considered by the courts, and the best of the juridical writers, as a book of merit and authority. The form of writing by dialogue was much in use among the ancients, and some of the finest treatises of the Greeks and Romans were written in that form, and particularly the remains of the Socratic school in the writings of Xenophon and Plato, and the rhetorical and philosophical treatises of Cicero. The three most interesting productions, in the form of dialogue, on the English law, are Fortescue, already mention
ed, this work of St. Germain, and the elegant and classical work entitled Eunomus, or Dialogues concerning the Law and Constitution of England, by Mr. Wynne.
But the legal productions of the preceding ages were all Lord Bacon. surpassed in value and extent in the reigns of Elizabeth and James, by the results of the splendid talents and immense erudition of Bacon and Coke. The writings of Lord Bacon on the municipal law of England are not to be compared in reputation to his productions in metaphysical and moral science; but it is, nevertheless, true, that he shed light and learning, and left the impression of profound and original thought, on every subject which he touched. It was the course of his life to connect law with other studies, and, therefore, he admitted, that his arguments might have the more variety, and perhaps the greater depth of reason. His principal law tracts are, his Elements of the Common Law, containing an illustration of the most important maxims of the common law, and of the use of the law in its application to the protection of person, property, and character, and his Reading upon the Statute of Uses. Lord Bacon seems to have disdained to cite authorities in his law treatises; and in that respect he approved of the method of Littleton and Fitzherbert, and condemned that of Perkins and Staunforde." He admits, however, that in his own private copy, he had all his authorities quoted, and that he did sometimes "weigh down authorities by evidence of reason ;" and that he intended rather to correct the law than sooth received error, or endeavour to reconcile contradictions by unprofitable subtlety. He made a proposal to King James, for a digest of the whole body of the common and statute law of England; and if he had been encouraged and enabled to employ the resources of his great mind on such a noble work, he would have done infinite service to mankind, and have settled in his favour the ques