Page images

is which gives such essential importance in the study of legal history, to the introduction, the influence, and the advance, of the Roman elements in the laws and institutions of a nation. For, as Lord Holt said, as the laws of all nations were raised out of the ruins of the civil law, and all governments are sprung out of the ruins of the Roman empire—all the principles of our law are borrowed from the civil law, and, therefore grounded on the same reason in many things. That is, he might have added, and no doubt meant, all those parts of our laws and institutions which are grounded upon reason at all. For, the laws and institutions of the Romans being, as Sir Henry Maine has observed, those of a free and intelligent people, with the longest and largest experience any civilized nation has ever been known to attain, the laws and institutions of any other free, intelligent people, with similar experience, would naturally, though gradually, approach to that great model. The progress of its influence was slower in this country than others; from various causes, chiefly its insular position, but for that very reason, it is more important to trace its progress in our legal history, especially as it includes all that is of real value in our law, and all that has proved permanent in it, and all that is still existent and is destined to exist. It may be traced in the first dawn of restored civilization, when, as Bede tells us, of the first Christian king, he conferred this benefit on his subjects of framing his laws after the example of the Romans —“decreta illi judiciorum justa exemplum Romanorum, cum conislio sapentium, constituit.” The channel through which the Roman system exercised an influence on the formation of our laws and institutions was, as Sir J. Mackintosh pointed out, the ecclesiastical. The influence was exercised earliest, first in the ecclesiastical courts: the first which decided upon evidence, and afterwards in courts of equity, where for ages, the ecclesiastics sat as chancellors. It is to be traced in the Saxon laws, and especially in that valuable collection of them known, made in the reign of Henry I, and hence, called Leges Henrici Primi, in which Saxon usages are curiously blended with precepts and principles taken from the common law. It is to be traced again in the Treatise of Glanville, in the reign of Henry II., where it is stated that such challenges or exceptions were allowed against jurors, as the common law in the Ecclesiastical Courts allowed against witnesses: “Excipi possunt juratores eisdem modis quibus et testes in cuna christiamtatis juste repelluntur.” It is to be traced again in the greater work of Bracton, in the reign of Henry III., where it is stated in the same way: eisdem modis avoventur a sacramento quibus testes avoventur a testimono. It is to be traced again in that interesting and valuable monument of our ancient law, the Mirror of justice, which as Lord Coke says—though composed in the reign of Edward I., by a learned and sensible man, treats of the laws and the ministers thereof, long before the Conquest. This is shown by internal evidence, and it has this peculiar value, that while it states the law as it was when it was composed, that it also states the various ordinances by which the law had been altered from the Saxon times to the time of Edward I. It distinctly stated that it was compiled in the reign of that King—“the King that now is ”—and it stated the law as it then was, but it also stated how it had come to be so, and gave the date of every ordinance by which, after Saxon times, it had been altered. Hence, the Mirror is of peculiar value, as showing the progress of our laws and institutions, and the influence of the Roman element up to the time of Edward I., when, as Lord Hale says, the frame was substantially settled. And it very plainly shows the influence of that element, using as it does, many of the terms and phrases of civil or common law; as, for instance, in dividing judges into ordinary and delegated, and in showing how the barbarous Saxon and Norman usages were gradually giving way to the intelligent judgment of sworn judges or jurors, subject to challenge or exception for just cause—the

origin of our modern trial by jury-the basis of our judiciai system.

[ocr errors]

It will be obvious that in any history of English law the great object must be to trace the influence of the Roman system upon the barbarous usages. But this object, though often indicated, had never been carried out. Hale had no idea of its importance in legal history, and, therefore, in his fragment on the subject, he said that he could see no good in trying to find out this or that piece of law was derived from the Romans. Lord Holt had a glimpse of the true idea when he said that as all laws, that is all laws worthy of the name, were derived from the Roman—the reason of laws must be derived from that source. A quarter of a century later, Duck wrote his learned essay on the rise and influence of the Roman law in England, but it was only an essay, not a history. The learned Pettingall wrote an elaborate treatise to show the analogy between the Roman judices and the English jurors, but that was a fragment and nothing more. Before the close of the last century, however, Reeves wrote his history of the English Law. But in the most essential quality of his History of Law, Mr. Reeves' work was most remarkably deficient. He often failed to show the original reasons and causes of ancient laws or institutions, and still more failed to show the causes of their gradual growth and change. He stated accurately enough what the law was at different periods, at which any formal or authentic exposition of it exists, as, for instance, in the reign of Henry II., in the treatise of Granville, or in the reign of Henry III., in the treatise of Bracton; and, as in subsequent periods, by great statutes or ordinances. But he failed to show how the law had become what it was at those periods, and why it was different at one period from what it was at another. And, in particular, he failed to trace out the various sources of our law, and the different influences which had affected its foundation and its growth. He did not go far enough back to find all the original sources of our institutions, nor follow the channels through which they operated in later times. He gave little attention to the Saxon period of our history, and none at all to the Roman. He hardly noticed the collection of Saxon laws made in the reign of Henry I, and failed to observe how it illustrated the combination of Roman and Saxon elements in the formation of our law. He copied the whole of the works of Glanville and Bracton, but failed to observe how they illustrated the same process. As to the Mirror of justice, probably from its being written, not in Latin, like the others, but in the barbarous, obsolete Norman dialect, he evidently had not read it, and knew nothing at all about it. He had derived his only idea of it from Hickes, whom he often quotes, and who being not a lawyer, but only an antiquary, failed to understand it. Hence, he did not notice it at all in his hasty view of the Saxon period, and only noticed it thus in the reign of Edward II.

“The Mirror of justice is a book whose consideration may properly belong to this reign. This singular work has raised much doubt and difference of opinion concerning its antiquity. Some have pronounced it older than the Conquest, others have ascribed it to the time of Edward II. Both opinions may be partly right. There may, perhaps, have been a work by this name as early as the date supposed; but whoever judges from the internal evidence of the book, will be satisfied that great part of it is of a period much later, certainly after Fleta and Britton, for it states many points of law, as it were, in a state of progression, somewhat receding from those writers, and approaching nearer to those of later times. Andrew Horne, whose name it bears, might take up an ancient book and work it into the form we now see in the reign of the King, or at the end of the former, and if so, we should expect that whatever it propounds, was actually law in the reign of Edward II.”

Thus Reeves had taken so little notice of the book, that he had not observed that its author states it was written in the reign of Edward I. He goes on —“The book treats of all the branches of the law, whether civil or criminal. Besides this, it gives a cursory retrospect of some changes

ordained by some Kings.” Here again, it is obvious Reeves had not read the book, for it mentions under each head, every ordinance by which the law had been altered after Saxon times, that it is so more precise and specific, in an historic sense than any book in the law. Yet so little did Reeves know of it that he went

on to say:—“This book should be read with great caution, and some previous knowledge of the law as it stood about the same period, for the author certainly writes with very little precision.”

On the contrary, the author writes with more precision, and in particular historic precision, than any other. And, therefore, it is manifest that Reeves had not read the book with any care, or with any adequate knowledge of the law, as it stood about the same period; though what period this meant he evidently had no definite idea, as he had not found out when the book was compiled. “This, with his assertions about Alfred, and the extravagant punishments inflicted by that King on his judges, have brought the Treatise under some suspicion.”

Here, again, it is obvious that Reeves had never read the book, for it contains no assertions about Alfred, which do not quite accord with what is known of that King by everyone not grossly ignorant of his character, his history, and his laws; and the passages referred to are just those which bear the clearest marks of authenticity. . All this, however, had evidently escaped the attention of Mr. Reeves, who goes on to say:

“When read with these hints, the Mirror is certainly a curious, interesting, and in some degree, an authentic tract upon an old law; though, considering the anachronisms in which it abounds, that the antiquated law is promiscuously blended with that of the time in which it was revised; and that the date of such revision is very uncertain, it is to be wondered at that some great writers (Coke and N. Bacon) have relied so much upon the author as to pronounce on the antiquity of many articles of our law, merely on its authority.”

But the difference between them and Reeves was that they knew the work, and he did not. It is plain he had not studied it. The passage above cited plainly showed that Reeves knew nothing of the Mirror, and had never read it. For, upon the face of it, the author distinctly states that it was written in the reign of Edward I., whom he mentions “as the King that now is,” and so far from stating law “promiscucusly,” on the contrary, throughout, it carefully, and expressively

« PreviousContinue »