Reeves' History of the English Law: From the time of the Romans to the end of the reign of Henry III

THE History which I now presume to offer to the profession of the law, is an attempt to investigate and discover the first principles of that complicated system which we are daily discussing (a).

It has happened to the law, as to other productions of human invention, particularly those which are closely connected with the transactions of mankind, that a series of years has gradually wrought such changes as to render many parts of it obsolete; so that the jurisprudence of one age has become the object of mere historic remembrance in another. Of the numerous volumes that compose a lawyer's library, how many are consigned to oblivion by the revolutions in opinions and practice and what a small part of those which are still considered as in use, is necessary for the purposes of common business! Notwithstanding, therefore, the multitude of books, the researches of a lawyer are confined to writers of a certain period. According to the present course of study, very few indeed look further than Coke and Plowden. Upon the same scale of inquiry, the Year-Books are considered rather in the light of antiquities; and Glanville, Bracton, and Fleta as no longer a part of our law.

It is in such a state of our jurisprudence that a history of the causes and steps by which these revolutions in legal learning have been effected, becomes curious and useful. But, notwithstanding the inquisitive spirit of the present age has given birth to histories of various sciences, we have nothing of this kind upon our law, except Sir Matthew Hale's History of the Common Law, published from a posthumous manuscript at the beginning of the present century. There have not, however, been wanting historical discourses, which have incidentally, and in a popular way, examined the progress of certain branches of the law, and during certain

(a) The author, no doubt, meant the origin of those principles, his being a work, not on law, but legal history. It may be doubted, however, whether he was sufficiently alive to this distinction, and whether he did, to his mind it did not appear that the statement of the law, as it stood at successive periods in our history-was not all that was involved in a history of our law. But it is conceived that, to satisfy the requirements of legal history, it is necessary to trace the whole course and progress of our laws, so as to show their gradual development, and the causes which led to the changes to be observed in them. And further, that the history must be traced back to the earliest period at which civilised law can have had its origin.

periods; such as those of Bacon, Sullivan, Dalrymple, Henry, and others.

Sir Matthew Hale, as a writer upon English law, possesses a reputation which can neither be increased nor diminished by anything that may be said of his History. We may therefore freely observe, that it is only an imperfect sketch, containing nothing very important nor very new. What seemed most to be expected, namely, an account of the changes made in the rules and maxims of the law, is very lightly touched (a). In short, the early period to which this work is confined, and the cursory way in which that period is treated, scarcely serve to give a taste of what a history of the law might be.

Sir William Blackstone, though in a smaller compass, has given a plan of a much better history than the former; and if the one excited a wish for something more complete, the other seems to have traced out a scheme upon which it might be executed. It was the chapter at the end of the Commentaries which persuaded me of the utility of such a work, if filled up with some minuteness upon the outline there drawn. It seemed, that after a perusal of that excellent performance, the student's curiosity is naturally led to inquire further into the origin of the law, with its progress to the state at which it is now arrived.

The plan on which I have pursued this attempt at a History of our Law is wholly new. I found that modern writers, in discoursing of the ancient law, were too apt to speak in modern terms, and generally with a reference to some modern usage. Hence it followed, that what they adduced was too often distorted and misrepresented, with a view of displaying, and accounting for, certain coincidences in the law at different periods. As this had a tendency to produce very great mistakes, it appeared to me that, in order to have a right conception of our old jurisprudence, it would be necessary to forget, for a while, every alteration which had been made since, to enter upon it with a mind wholly unprejudiced, and to peruse it with the same attention that is bestowed on a system of modern law. The law of the time would then be learned in the language of the time, untinctured with new opinions; and when that was clearly understood, the alterations made therein in subsequent periods might be deduced, and exhi

(a) It is conceived that the author very much undervalued Lord Hale's history, and that, so far as it went, it far more resembled a real history of law than his own. It exhibits far more of the cause and progress of our laws, and gives a more just and comprehensive view of the materials whence our laws were derived. Hale's account, for instance, of the true measure and nature of the effect of the Conquest upon our laws and institutions, is infinitely more complete and more correct than our author's, and therefore is embodied in the notes to the text. So Hale distinguishes the reigns between the Conquest and the Great Charter, especially the important reigns of Henry I. and Henry II., each of which makes an era in the history of our law; whereas the author treats the whole of that period together, and hence fails to give a clear idea of the course of our legal history during that important period. The present Editor has made Lord Hale his model of what a legal history should be.

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Reeves' History of the English Law: From the time of the Romans to the end ...