4537. LAWS OF ENGLAND, History.—
The laws of England, in their progress from
the earliest to the present times, may be
likened to the road of a traveller, divided into
distinct stages or resting places, at each of
which a review is to be taken of the ground
passed over so far. The first of these was
Bracton's De Legibus Angliæ; the second
Coke's Institutes; the third the Abridgment
of the Law by Matthew Bacon; and the
fourth, Blackstone's Commentaries. Doubtless
there were others before Bracton which have
not reached us. Alfred, in the preface to his
laws, says they were compiled from those of
Ina, Offa, and æthelbert, into which, or
rather preceding them, the clergy have interpolated
the 20th, 21st, 22d, 23d and 24th chapters
of Exodus, so as to place Alfred's preface
to what was really his, awkwardly
enough in the body of the work. An interpolation,
the more glaring, as containing laws
expressly contradicted by those of Alfred.
This pious fraud seems to have been first
noted by Howard, in his Coutumes Anglo
Normandes, and the pious judges of England
have had no inclination to question it. * * *
This digest of Alfred of the laws of the
Heptarchy into a single code, common to the
whole Kingdom, by him first reduced into
one, was probably the birth of what is called
the Common law. He has been styled, “ Magnus
Juris Anglicani Conditor”; and his code,
the Dom-Dec, or Doom-Book. That which
was afterwards under Edward the Confessor,
was but a restoration of Alfred's with some
intervening alterations. And this was the code
which the English so often, under the Norman
princes, petitioned to have restored to
them. But, all records previous to the Magna
Charta, having been early lost, Bracton's is
the first digest of the whole body of law
which has come down to us entire. What
materials existed for it in his time we know
not, except the unauthoritative collections of
Lambard and Wilkins, and the treatise of
Glanville, tempore H. 2. Bracton's is the
more valuable, because being written a very
few years after the Magna Charta, which
commences what is called the statute law, it
gives us the state of the common law in its
ultimate form, and exactly at the point of
division between the Common and Statute
law. It is a most able work, complete in its
matter and luminous in its method. The statutes
which introduced changes began now to
be preserved; applications of the law to new
cases by the courts, began soon after to be
reported in the Year-Books, these to be
methodized and abridged by Fitzherbert,
Broke, Rolle, and others; individuals continued
the business of reporting; particular
treatises were written by able men, and all
these, by the time of Lord Coke, had formed
so large a mass of matter as to call for a
new digest, to bring it within reasonable compass.
This he undertook in his Institutes,
harmonizing all the decisions and opinions
which were reconcilable, and rejecting those
not so. This work is executed with so much
learning and judgment, that I do not recollect
that a single position in it has ever been judicially
denied. And although the work loses
much of its value by its chaotic form it May
still be considered as the fundamental code of
the English law. The same processes recommencing
of statutory changes, new divisions,
multiplied reports, and special treatises, a new
accumulation had formed, calling for new reduction,
by the time of Matthew Bacon. His
work, therefore, although not pretending to
the textual merit of Bracton's, or Coke's, was
very acceptable. His alphabetical arrangement,
indeed, although better than Coke's
jumble, was far inferior to Bracton's. But
it was a sound digest of the materials existing
on the several alphabetical heads under
which he arranged them. His work was not
admitted in Westminster Hall; yet it was the
manual of every judge and lawyer, and, what
better proves its worth, has been its daily
growth in the general estimation. A succeeding
interval of changes and additions of
matter produced Blackstone's Commentaries,
the most lucid in arrangement which had yet
been written, correct in its matter, classical
in style, and rightfully taking its place by
the side of the Justinian Institutes. But, like
them, it was only an elementary book. It did
not present all the subjects of the law in all
their details. It still left it necessary to recur
to the original works of which it was the summary.
The great mass of law books from
which it was extracted, was still to be consulted
on minute investigations. It wanted,
therefore, a species of merit which entered
deeply into the value of those of Bracton,
Coke and Bacon. They had in effect swept
the shelves of all the materials preceding
them. To give Blackstone, therefore, a full
measure of value, another work is still wanting,
to wit: to incorporate with his principles
a compend of the particular cases subsequent
to Bacon, of which they are the essence. This
might be done by printing under his text a
digest like Bacon's, continued to Blackstone's
time. It would * * * increase its value
peculiarly to us, because just here we break
off from the parent stem of the English
law, unconcerned in any of its subsequent
changes or decisions.—
To Dr. Thomas Cooper. Washington ed. vi, 291.
(M.
1814)
