Page images

distinguishes the faws and constitutions which existed in Saxon times from those which existed in later times, and mentions the ordinances by which they were altered. This, however, was lost on Mr. Reeves, and hence, his history of our law, however accurate in its different parts, failed to show its growth and progression. t showed, with great accuracy, what it was at different periods, but it did not show the connection between them. It gave the whole of Granville at one time and the whole of Bracton at another, but failed to show why the latter differed from the former, or why he ceased to influence the formation of our law. He described very accurately the system of Ecclesiastical Courts as it existed in the 15th century, but it never occurred to him to trace its influence in the Courts of Equity, or the influence of equitable jurisdiction upon the legal law, nor to trace the channels through which the influence of reason, embodied in the Roman law, by degrees reached, permeated, and improved, the barbarous traditions and institutions of the Common Law.

It is obvious that the great object of any new edition of Reeves' History must be to supply, as far as possible, this deficiency in it, to throw more light on the original sources and elements of our law, and to trace its progress and its growth A good illustration of the fatal defect in Mr. Reeves' character as a writer of legal history is afforded by the way in which he deals with the important subject of trial by jury. Utterly unaware, on account of his neglect to study the Saxon laws and the Mirror, of the origin and growth of that mode of trial, and evidently unaware that the jurors, until later times, were mere witnesses, he says that the earliest mention of a trial by jury is in the Constitutions of Clarendon in the reign of Henry II., which direct that the sheriff shall swear twelve men who should make the truth appear faciet jurare duodecim legales homnes, quod veritatem secundum conscientiam suam manifestabunt.Yet this was exactly what was directed by the early Saxon law, and the very term legales homines was the Latin version of the Saxon

phrase lahmen, which was originally synonymous with compurgators, just as compurgators were identical with jurors. And it was not until ages after the time of Henry II., that jurors exercised the functions of modern juries in hearing and deciding upon the evidence of witnesses. The progress of institutions Reeves could not understand, and so he set down the first formal mention of twelve men he happened to find, which happened to be some centuries after the original institution arose, as the origin of trial by jury.

When Mr. Finlason, on account of his known familiarity with the sources and history of our law, which had been his constant study for a quarter of a century, was invited to edit Reeves's History of the Law, he proposed to work upon that principle, and by the light of his own study of the original sources and authorities of our early law. The learned editor of Glanville had introduced his work with a passage which appeared to present the true idea of legal history :

“The law of modern times is intimately connected with that of our forefathers, and the decisions of the present day are not unfrequently built upon principles that are enveloped in the mists of far distant ages. But to these principles the student must ascend if he would merit the name of a la vyer, and if the labour be severe, he must reconcile it to himself, by reflecting that it was submitted to by Coke, Hale, and Blackstone. Led by the soundness of their judgments to investigate the earlier ages of our jurisprudence, these great men considered nothing useless, though it might possibly happen to be obsolete, which tended to enlighten their minds, and show them the fundamental principles of those laws which they so admirably illustrated.”

And this learned writer well carried out his own idea by bringing ancient Saxon, Roman, and Norman authorities to the illustration of the work he edited, and among these were the Saxon Law, and the Roman Law; and those interesting records of our law which show the influence of both, the Mirror of Justice ; Britton, Fleta, and Bracton. Nor was it only English authorities which Mr. Finlason followed in his edition of Reeves's. He followed the example of Savigny, and the principle laid down by the German jurist, Guterboch, who has given us a valuable work on Bracton :

“ The historian must follow through the Saxon and first Norman periods the traces of what was left behind by the Romans; he must study the return of the Roman law, and the growths and effects of the new school of civilians; he must investigate the penetration of the Roman elements into practical usage, and the influence upon the different branches of the English law, just then developing. He must then show, how the full development of the national law, and the confidence felt in the strength and capacity to stand alone, produced an antagonism between it and the Roman law, which drove the latter from Westminster Hall; and how the Roman law, nevertheless, gained ground in the Ecclesiastical Courts, and in the system of equity." Which was just what Reeves had failed to do, and what his Editor strove to achieve.

The passage, copied from Gutterbock's work, exactly expresses Mr. Finlason's view of the history of English law, and the view upon which he edited Reeves. It is manifest that it is equally applicable to the administration of law in the courts as to the development of law which was carried on in those courts. And he applied the same view to our system of judicature and procedure, and especially to trial by jury. Mr. Finlason, therefore, executed his work upon these principles, and by the light of these authorities. For more than a quarter of a century, he had been familiar with the original sources and authorities of our early law, and he used his own knowledge of them with such casual light or illustration as might be gained from works such as those of Kemble and Palgrave, as to Saxon law, and Savigny or Guizot as to Roman; but working chiefly on the original authorities themselves. His own knowledge of these sources and authorities had enabled him to test their value by comparison, and he had long known the peculiar value, for the purposes of legal history, of the Mirror of Justice. So far as regarded the Saxon period of our history, there were the Saxon chronicles and the Saxon laws, by which to test it, and, tested by these authorities, as well as by internal evidence, its authenticity was undoubted. Thus as to the administration of justice, it represented the trial of criminals as tried by twelve sworn witnesses called jurors, or compur

gators, and the same usages are found described in the early Saxon laws, and in the documents published by Kemble or Palgrave. Again, it represented these trials as presided over by local judges,“ reeves” or bailiffs, and such judges are mentioned in the same sources of Saxon history. Again, its definition of crimes, especially such as to mayhem or burning, tallied exactly with the terms of the Saxon laws and the incidents of Saxon histories. Lastly, it mentioned that Alfred executed a great many local judges who had executed prisoners with wilful injustice or illegality, and it is stated by a contemporary writer that he was a severe enquirer into unjust sentences and his own laws, which sternly lay down the Mosaic principle of retaliatory justice, declare that those judges who wickedly put others to death, shall themselves suffer the same penalty. The Saxon portions of the work are thus abundantly confirmed, and the Norman parts of it are equally attested by their agreement with Glanville. Mr. Finlason, therefore, had, from long and careful study of the work found it well worthy of attention. There was no difficulty in discovering and distinguishing the later or Norman parts of it, for they were all expressly mentioned and pointed out. He gave copious and careful analyses of it, and copious extracts from it, and found it of excellent use in illustrating that important period of our legal history, which lies between the Saxon age of the era of the Great Charter; the confirmation of which in the reign of Edward I., forms a great epoch in the history of our law. That era he also illustrated by a similar use of the original sources and authorities; the Rolls of Parliament; the Charters; the works of Britton, Fleta, and Bracton; and the subsequent periods in the history of our law he also illustrated in like manner from the original sources, and in particular, by hundreds of citations from the Year books and later reports.

All this labour was cordially appreciated by English reviewers; for whose kind and handsome notices of his work Mr. Finlason will ever feel grateful ; and not the less so because they were accompanied with the frank and candid

notice of some symptoms of haste and consequent inaccuracy. These defects in the execution of his work, the editor cheerfully acknowledges, and would be ashamed of himself for feeling any annoyance at their being pointed out in a spirit so frank, so generous, and so kind. There has lately appeared, however, in a German organ of criticism, a review of Mr. Finlason's edition of Reeves, marked by a very different spirit and character, and equally characterised by ignorance, Aippancy, and untruth. It is extraordinary that such a production should have appeared in a German critical journal, and still more so that it should have been thought worthy of translation and insertion in such an able legal periodical as the American Law Review. To the frank and candid criticisms of the English journals the editor bowed because he saw that they were the productions of men of learning and ability, and were marked by justice and by candour. But for the critique of the German writer, he can entertain no other feeling than contempt, though he feels it a duty he owes to his own reputation and to legal journalism, to inflict upon it the chastisement of an exemplary exposure. It is manifest, at the outset, that the critic is quite incompetent to deal with such a work, for he says: “ Reeves has used the sources which were then accessible to him in the most thorough and comprehensive manner.” Which, as we have seen, was just what Reeves did not do, for he made little of the Saxon laws and nothing of the Roman; he made nothing even of the Leges Henrici Primi, and he made no comparative or historic use of Glanville or Bracton, and he did no more than simply copy them into his pages. And he did not, as has been shown, even take the trouble to read the Mirror, the most valuable monument of our early legal history. In truth, he had not an idea of what is meant by the history of law, and so could make nothing of its sources. The German critic has an idea of legal history, for he is able to perceive that Reeves had not. In this respect he agrees with Mr. Finlason, and says :-" Reeves did not fully understand the growth and development of legal

« PreviousContinue »