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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 22
Of the Principal Publications on the Common Law

THE reports of adjudged cases are admitted to contain the highest and moat 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. 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 Tractatus de Legibus Angliae, 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 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 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,1 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 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. In the reign of Edward I, Bracton was reduced into a compendium by Thornton, which shows, says Selden,2 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,3 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.4 But Mr. Reeve, in his history of the English law,5 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 unrivaled, 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.6 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 sense.

Britton and Fleta, two treatises in the reign of Edw. I were nothing more than appendages to Bracton, and from which they drew largely. 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 Renault, in his chronological abridgment of the History of France,7 should refer to this ancient English treaties 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 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 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 ran 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 antenuptial 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 favor 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 vigor, 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 lawyers have always liberally bestowed upon their municipal institutions.

Littleton’s Book of Tenures was composed in the reign 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 heads of fee simple, fee tail, tenant in dower, tenant by the curtsey, 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 diverse subjects relative to estates, and their tenures, under the heads of parceners, joint tenants, estates on condition, releases, warranty, etc. 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,8 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. 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 reason. A great part of Littleton is not now law, or is entirely obsolete with us; and particularly much of the matter in the chapters on estates in fee tail, copy holds, 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. Perkin’s 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. So great was. its popularity with the profession, that it had gone through thirteen editions when it was translated from the law French into English in 1757. It treats of grants, deeds, feofments, exchange, dower, courtesy, 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 Abridgment.

The Dialogue between a Doctor of Divinity and a Student in Law, was also written 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 mentioned, this work of St. German, 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 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.9 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 endeavor 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 favor the question, which he said would be made with posterity, whether he or Coke was the greater Lawyer. The writings of Lord Bacon are distinguished for the perspicuity and simplicity with which every subject is treated.

Lord Coke’s Institutes have had a most extensive and permanent influence on the common law of England. The first volume is a commentary upon Littleton’s Tenures; and notwithstanding the magnitude of the work, it has reached seventeen editions. Many of the doctrines which his writings explain and illustrate, have become obsolete, or have been swept away by the current of events. The influence of two centuries must inevitably work a great revolution in the laws and usages, as well as in the manners and taste of a nation. Perhaps every thing useful in the institutes of Coke may be found more methodically arranged, and more interestingly taught, in the modern compilations and digests; yet his authority on all subjects connected with the ancient law, is too great and too venerable to be neglected. The writings of Coke as Butler has observed,10 stand between and connect the ancient and the modern law — the old and the new jurisprudence. He explains the ancient system of law as it stood in his day, and he points out the leading circumstances of the innovation which was begun. We have in his works the beginning of the disuse of real actions; the tendency of the nation to abolish the military tenures; the rise of a system of equity jurisdiction; and the outlines of every point of modern law.

The second part of the Institutes of Coke is a commentary upon the ancient statutes, beginning with magna charta, and proceeding down to the reign of Henry VIII; and his commentaries upon the ancient statutes consisted, as he himself declared, of the authentic resolutions of the courts of justice, and were not like the glosses of the civilians upon the text of the civil law, which contain so many diversities of opinion as to increase rather than to resolve doubts and uncertainties. His commentary upon magna charta, and particularly on the celebrated 29th chapter, is deeply interesting to the lawyers of the present age, as well from the value and dignity of the text, as the spirit of justice and of civil liberty which pervades and animates the work. In this respect Lord Coke eclipses his contemporary and great rival, Lord Bacon, who was as inferior to Coke in a just sense and manly vindication of the freedom and privileges of the subject, as he was superior in general science and philosophy. Lord Coke, in a very advanced age, took a principal share in proposing and framing the celebrated Petition of Bight, containing a parliamentary sanction. of those constitutional limitations upon the royal prerogative, which were deemed essential to the liberties of the nation.

The third and fourth parts of the Institutes treat of high treason and the other pleas of the crown, and the history and antiquities of the English courts. The harshness and severity of the ancient criminal code of England is ill suited to the taste and moral sense of the present age; and those parts of the institutes are of very inconsiderable value and use, except it be to enlighten the researches of the legal antiquary. In this respect, Coke’s Pleas of the Crown are inferior to the work under that title by Staunforde, who wrote in the age of Philip and Mary, and was the earliest writer who treated didactically on that subject. Staunforde wrote in law French; but Lord Coke, more wisely and benevolently, wrote in English, because, he said, the matter of which he treated concerned all the subjects of the realm.

Before we quit the period of the old law, we must not omit to notice the grand abridgments of Statham, Fitzherbert, and Brooke. Statham was a baron of the Exchequer in the time of Edward IV. His abridgment of the law was a digest of most titles of the law, and comprising under each head adjudged cases from the Year Books, given in a concise manner. The cases were strung together without regard to connection of matter. It is doubtful whether it was printed before or after Fitzherbert’s work, but the latter entirely superseded it. Fitzherbert was published in the reign of Henry VIII. and came out in 1514, and was a work for that period of singular learning and utility. Brooke was published in 1573, and in a great degree superseded the others. These two last abridgments contain the substance of the Year Books regularly digested; and by the form and order which they gave to the rude materials before them, and the great facility which they afforded to the acquisition of knowledge, they must have contributed very greatly and rapidly to the improvement of legal science. Even those exceedingly laborious abridgments were in their turn to be superseded by the abridgments of Rolle, and his successors. Dr. Cowell, who was contemporary to Coke, published in Latin an Institute of the laws of England, after the manner of Justinian’s Institutes. His work was founded upon the old feudal tenures, such as the law of wards and liveries, tenures in capite, and knight service. While the writings of Lord Coke have descended with fame and honor to posterity, it was the fate of the learned labors of Dr. Cowell, to pass unheeded and unknown, into irreclaimable oblivion. And, with respect to all the preceding periods, Reeves’ History of the English Law contains the best account that we have of the progress of the law, from the time of the Saxons to the reign of Elizabeth. It covers the whole ground of the law included in the old abridgments, and it is a work deserving of the highest commendation. I am at a loss which most to admire, the full and accurate learning which it contains, or the neat, perspicuous and sometimes elegant style in which that learning is conveyed.

The treatise of Sir Henry Finch, being a discourse in four books on the maxims and positive grounds of the law, was first published in French, in 1613, and we have the authority of Sir William Blackstone for saying, that his method was greatly superior to all the treatises that were then extant. His text was weighty, concise, and nervous, and his illustrations apposite, clear, and authentic. But the abolition of the feudal tenures, and the disuse of real actions, have rendered half of his work obsolete.

Shepherd’s Touchstone of Common Assurances was the production of Mr. Justice Dodderidge in the reign of James I. It is a work of great value and authority, touching the common law modes of conveyance, and those derived from the statute of uses. It treats also copiously of the law of uses and devises; but the great defect of the book is the want of that lucid order and perspicuous method which are essential to the cheerful perusal and ready perception of the merits of such a work. The second volume of Collectanea Juridica has an analysis of the theory and practice of conveyancing, which is only a compendious abridgment of the Touchstone; and there is a very improved edition of it by Mr. Preston, who has favored the profession with several excellent tracts on the law of real property.

Rolle’s Abridgment of the Law was published soon after the restoration, with an interesting preface by Sir Matthew Hale. It brings down the law to the end of the reign of Charles I., and though it be an excellent work, and, in point of method, succinctness, and legal precision, a model of a good abridgment, Sir Matthew Hale considered it an unequal monument of the fame of Rolle, and that it fell short of what might have been expected from his abilities and great merit. It is also deemed, by Mr. Hargrave, a great defect in Viner’s very extensive abridgment, that he should have attempted to engraft it on such a narrow foundation as that of Rolle’s work. Rolle was chief justice of England under the protectorate of Cromwell, and under the preceding commonwealth; but as his abridgment was printed in the reign of Charles II, he has no other title annexed to his name than that of Sergeant Rolle, and his republican dignity was not recognized.

Since the period of the English revolution, the new digests have superseded the use of the former ones; and Bacon, Viner, Comyns, and Cruise, contain such a vast accession of modern law learning, that their predecessors have fallen into oblivion. Viner’s abridgment, with all its defects and inaccuracies, is a convenient part of every lawyer’s library. We obtain by it an easy and prompt access to the learning of the Year Books, and the old abridgments, and the work is enriched with many reports of adjudged cases not to be found elsewhere; but, after all that can be said in its favor, it is an enormous mass of crude undigested matter, and not worth the labor of the compilation. The digest of Lord Chief Baron Comyns is a production of a vastly higher order and reputation, and it is the best digest extant upon the entire body of the English law. Lord Kenyon held his opinion alone to be of great authority, for he was considered by his contemporaries as the most able lawyer in Westminster Hall.11 The title Pleader has often been considered as the most elaborate and useful head of the work, but the whole is distinguished for the variety of the matter, its lucid order, the precision and brevity of the expression, and the accuracy and felicity of the execution. Bacon’s Abridgment was composed chiefly from materials left by Lord Chief Baron Gilbert. It has more of the character of an elementary work than Comyn’s Digest. The first edition appeared in 1736, and was much admired, and the abridgment has maintained its great influence down to the present time, as being a very convenient and valuable collection of principles, arising under the various titles in the immense system of the English law. And in connection with this branch of the subject, it will be convenient. though a little out of the order of time, to take notice of Cruise’s recent and very valuable Digest of the laws of England respecting real property. It is by far the most perfect elementary work of the kind which we have on the doctrine of real property, and it is distinguished for its methodical, accurate, perspicuous, and comprehensive view of the subject. All his principles arc supported and illustrated by the most judicious selection of adjudged cases. They are arranged with great skill, and applied in confirmation of his doctrines with the utmost pertinency and force.

The various treatises of Lord Chief Baron Gilbert are of high value and character, and they contributed much to advance the science of law in the former part of the last century. His Treatise on Tenures deserves particular notice, as having explained upon feudal principles several of the leading doctrines in Littleton and Coke; and it is a very elementary and instructive essay upon that abstruse branch of learning, His essay on the Law of Evidence is an excellent performance, and the groundwork of all the subsequent collections on that subject, and it still maintains its character, notwithstanding the law of evidence, like most other branches of the law, and particularly the law of commercial Contracts, has expanded with the progress and the exigencies of society. His treatise on the law of Uses and Trusts is another work of high authority, and it has been rendered peculiarly valuable by the revision and copious notes of Mr. Sugden.

The treatises on the Pleas of the Crown, by Sir Matthew Hale and Sergeant Hawkins, appeared early in the last century, and they. contributed to give precision and certainty to that most deeply interesting part of jurisprudence. They are both of them works of authority, and have bad great sanction, and been uniformly and strongly recommended to the profession. Sir Martin Wright’s Introduction to the Law of Tenures is an excellent work, and the value of it cannot be better recommended than by the fact, that Sir William Blackstone has interwoven the substance of the treatise into the second volume of his commentaries. Dr. Wood published in 1722 his Institute of the Laws of England. His object was to digest the law, and to bring it into better order and system. By the year 1754, his work had passed through eight folio editions, and thereby afforded a decisive proof of its value and popularity. It was greatly esteemed by the lawyers of that age; and an American judge,12 (himself a learned lawyer of the old school,) has spoken of Wood as a great authority, and of weight and respect in Westminster Hall.

But it was the fate of Wood’s Institutes to be entirely superseded by more enlarged, more critical, and more attractive publications, and especially by the commentaries of Sir William Blackstone, who is justly placed at the head of all the modern writers who treat of the general elementary principles of the law. By the excellence of his arrangement, the variety of his learning, the justness of his taste, and the purity and elegance of his style, he communicated to those subjects which were harsh and forbidding in the pages of Coke, the attractions of a liberal science, and the embellishment of polite literature. The second and third volumes of the commentaries are to be thoroughly studied and accurately understood. What is obsolete is necessary to illustrate that which remains in use, and the greater part of the matter in those volumes is law at this day, and on this side of the Atlantic.

I have necessarily been obliged to omit the mention of many valuable works upon law, as my object in the present lecture was merely to select those which were the most useful or distinguished. With respect to the modern didactic treatises on various heads of the law, and which have multiplied exceedingly within the period of the present generation, I can only take notice of a few of those which relate to the law of real property, and are deemed the most important. The numerous works, both foreign and domestic, on various branches of the law of personal rights and commercial contracts, I may have occasion to refer to hereafter, as the subjects of which they treat pass under consideration in the course of these lectures. Any critical notice of them at present would lead us too far from the general purpose of this inquiry, and many of them are not sufficiently matured by time to become of much authority.

Sanders’ Essay on Uses and Trusts is a comprehensive and systematic treatise, but it wants the fulness of illustration, and neat and orderly arrangement, requisite in the discussion of so abstruse and complicated a branch of the law. The learned Mr. Butler has given a very elaborate note on the same subject;13 and there is an excellent summary of the law of uses and trusts in Cruise’s Digest, arranged with his customary skill, and supported by an accurate analysis of adjudged cases, which are apposite and pertinent to the inquiry.

Sugden’s Practical Treatise on Powers is the best book we have on that very abstruse title in the law. It was regarded by the author as his favorite performance, and he is entitled to the gratitude of the student for his masterly execution of the work. It is perspicuous, methodical, and accurate. Mr. Sugden’s Treatise on the Law of Vendors and Purchasers, is also a correct and useful collection of equity principles on a subject extremely interesting, and of constant forensic discussion. Roberts on Fraudulent Conveyances covers a very important head in the jurisprudence of the courts of equity. He has collected the cases arising under the statutes of 13 and 27 Elizabeth, respecting conveyances that are deemed fraudulent in respect to creditors and purchasers; and though the treatise is written in bad taste, it is a useful digest of the law on that subject. Powell’s essay upon the learning of devises contains a systematical and valuable view of an important branch of the law concerning title to real property, and it is enlivened with some spirited discussions; but neither that essay, nor the one of his upon mortgages, are to be compared to the clear, succinct, and masterly analysis of the cases under similar titles in the great work of Mr. Cruise. Fearne’s Essay on Contingent Remainders and Executory Devises is a performance of very superior character. It is eminently distinguished for the ability and perspicuity with which it unfolds and explains the principles of the most intricate parts of the law. Mr. Preston’s recent essays on Estates and Abstracts of Title are so well executed, and contain such sound and clear views of the law of real property, that they have already attained the distinction and authority of works of established reputation.

I have thus attempted, for the assistance of the student, to unfold, in this and the preceding lecture, the principal sources from which we derive the evidence and rules of the common law. There is another source still untouched, from which a great accession of sound principles, particularly on the subject of personal contracts, has been received, to enlarge, improve, and adorn our municipal codes. I allude to the body of the civil law, contained in the Institutes, Digest, and Code of Justinian; and our attention will be directed to that subject in the next lecture.


NOTES

     1.    Reeve’s History of the English Law, 570.
     2.    Dissertation annexed to Fleta, ch. 2. s. 1.
     3.    P. 357, 358.
     4.    1 Show. 118. 11 St. Trt. 143.
     5.    Vol. 4. p. 570, 571.
     6.    Selden’s Dissertation, ch. 1. sec. 3.
     7.    Tom. 1. 258.
     8.    Preface to Coke Littleton.
     9.    Preface to his Law Tracts.
   10.    Pref. to Co. Litt.
   11.    3 Term, 64. 631.
   12.    McKean, Ch. J. 1 Dallas, p. 357.
   13.    Note 231, to lib. 3. Co. Litt.