THE ^oiiiffs' Dt t^f linto of (^itglant!. AN HISTORICAL INTRODUCTIO/Y TO THE STUDY OF ENGLISH LAW. BY Dr. U, BRUNNER. WITH A BIBLIOGRAPHICAL APPENDIX, HO Q^tft of George 31- Slljnmpaott imfpaanr. OfatneU Haui Scljaol, 1326-1957 Ebuiin H. Uooiiruff JPrnfEaaor of ICmit, 1951-1957 Digitized by Microsoft® Cornell University Library KD 392.B89 The sources of the law of England :an hi 3 1924 021 687 227 ^nJ^^*^-^^-^— -. Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® THE SOURCES OF THE LAW OF ENGLAND. Digitized by Microsoft® PRINTED BY MORRISON' AND GIBE, FOB T. & T. CLARK, EDINBURGH. ION, . . , . . . STEVENS AXD SONS. . . . . STEVENS AND HATNE 30W, . . , J. SMITH AND SON. Digitized by Microsoft® THE SOURCES OF THE LAW OF ENGLAND. AN HISTORICAL INTRODUCTION TO THE STUDY OF ENGLISH LAW. Dr. H. BRUNNEE, PKOFE6S0E IN THE 'BNIVER8ITT OF BERLIN. SCransIattt) from tlie ffierman, toitlj a !6f6Itograpi&tcaI appmbii, W. HASTIE, M.A., TRANSLATOR OF KANT'S ' PHILOSOPHY OF LAW ; ' OUTLINES OF THE SCIENCE OF JURISPRUDENCE,' BY PUCHTA, EDINBUEGH: T. & T. CLAEK, 38 GEORGE STEEET. 1888. Digitized by Microsoft® B //^a//y ' In England, as in Rome, the development of law has been unbroken in continuity, and has extended over a number of centuries. Based originally upon great and durable institutions, it has spontaneously expanded as the material and moral necessities of the growing nation required, till it presents at the present day the appearance of a vast, uniform, organic structure.' — Sheldon Amos. Digitized by Microsoft® TRANSLATOR'S PREFATORY NOTE. ' Peofessoe Brtjnner's admirable outline of the Juristic Literature of England will be found to form an attractive and instructive means of passing from the study of General Jurisprudence to that of the special System of the English Law.' In these words the Translator has already indicated his estimate of the value of Dr. Brunner's Sketch of the Literary History of the Law of England, and his view of the position which it seems fitted to take in a course of legal study.^ The Sketch has been translated with the sanction of the learned Author ; an occasional Note ■ — consisting when possible of an illustrative quotation — and a Bibliographical Appendix have been added; and it is hoped and believed that the matter comprised in these few pages will prove an acceptable and useful 1 Outlines of ihe Science of Juriiprudence. An Introduction to the Systematic Study of Law. Translated and Edited from the Juristic EncyclopEedias of Puchta, Friedlander, Falck, and Ahrens. Edinburgh 1887 (p. 37, note). Digitized by Microsoft® vi tkanslator's prefatoey note. guide to Students in approaching the living forms of the vast and varied system of the Law of England. It seems undesirable and unnecessary to detain the Student by any prefatory detail. The scope and cha- racter of Dr. Brunner's Sketch will be at once apparent. Its clearness, its erudition, its comprehensiveness, cannot fail to be recognised. It embodies matter which might easily have been expanded into a considerable volume, but it is presented in such a succinct and perspicuous form that the Student may rapidly master it; and in doing so he cannot but gain definite direction and insight, whatever be the School of Law in which he may have been trained, or to which he may be giving his allegiance. The little work presents an application of the Historical Method to the liter.ary material of English Law. The late lamented Sir Henry Sumner Maine has done great service in familiarizing the English mind with the Historical Method, and his brilliant applications of it to the elucidation of early Custom and Law — Hindu, Eoman, and Irish — have resulted in some of the most valuable contributions to the Juristic Literature of this generation. But the prosecution of the Method within the domain of ancient and modern English Law is still rather a desideratum than a realized fact. It is, however, generally acknowledged that there is no depart- ment of English Law that at present more clamantly Digitized by Microsoft® translator's prefatory note. vii demands or will better repay careful cultivation. The distinguished Constitutional Historians have been leading the way by excellent works in their closely related sphere. Nor are there wanting practical evidences of a reviving and deepening interest in the jural develop- ment. Among these may be specially mentioned the founding last year of the Selden Society, which has for its object ' to encourage the study and advance the knowledge of the History of English Law,' and which has already given earnest of important and valuable work. In connection with the earlier periods of the Juristic Literature much has been accomplished by the persevering and laborious researches of such German scholars as Konrad Maurer, Eeinhold Schmid, Phillips, Biener, Gundermaun, Gneist, Liebermann, and the Author of this Sketch ; and their efforts and products cannot be too highly praised. This little synopsis will be found well fitted to set the Student upon the line of these more elaborate investigations, as well as to quicken the interest of the general reader in the English juridical movement as a whole. W. H. May 1, 1888. Digitized by Microsoft® ADDENDA. Select Fleas ot the Crown. "Vol. I., A.D. 1200-1225. Edited for the Selden Society. By F. "W. Maitland. London, 1888. Publication of the Selden Society for 1887.— (Add to p. 23.) Bracton's Note Book : A Collection of Cases decided in the King's Court. Annotated by a. Lawyer of that name, seemingly by Henry of Bratton. Edited by F. W. Maitland, Reader of English Law in the University of Cambridge. 3 vols. London and Cambridge. — (Add to p. 25.) Digitized by Microsoft® CONTENTS. Section Jtrst. THE ANGLO-SAXON LAW. Importance of the Anglo-Saxon Legislation, . 1. The Old Kent Legislation, 2. The Laws of Ine, .... 3. The Consolidated Kingdom. Alfred to ^thebed, 4. The Laws of Cnut, 5. Pseudo-leges Canuti. Leges Henrici Primi, Leges Edwardi Confessoris, 6. Gersednes betweox Dunsetan. Eectitudines, etc. Literature — Editions of the Anglo-Saxon Laws, Charters and other Documents, Histories of Anglo-Saxon Law, The Laws of the Ancient Britons — 1. The Ancient Laws of Wales, 2. The Ancient Laws of Ireland, 3. The Ancient Laws of Scotland, . Section SeconU. THE ANGLO-NOEMAN LAW. 1. From William I. to Henry II., 1066-1154, Domesday Book, .... EoUs of the Pipe, etc., . Placita Anglo-normannica, 2. From Henry II. to 1300— Constitutions of Clarendon and Northampton, Kecognition by Jury, Justices of Eyre, .... Capitula Itineris, Exchequer. Court of Common Pleas. King's Court, . A. Statutes of the Period, Editions of the Statutes, ■ B. Judicial Sources, PAQE 1 3 3 3 5 5 6 6 7 9 10 11 14 14 16 16 16 16 17 17 18 19 21 Digitized by Microsoft® CONTENTS. PAGE 1. "Writs (Brevia), .... . 21 2. Records, . . . . 23 3. Reports. Year Books, . 23 C. Treatises on Law and Juristic Writers— 1. Dialogus de Scaccario, . 24 2. Glanvill, ..... . 25 3. Bracton, ..... . 2.5 4. TheFleta, .... . 28 5. Thorton, ..... . 28 6. Brittoi), ..... . 28 7. Hengham, .... . 29 8. Fet assevoir, .... . 29 Literature relating to the Sources of this Period, . 30 Dictionaries of Norman French. Mediseval Terms, . .31 Setttan Wiiit'O. THE LAW OF ENGLAND FROM THE FOURTEENTH CENTURY TO BLACKSTONE. A. The Modern Statutes, .... Editions of the Statutes, B. Judicial Sources — Writs. Records. Reports, Modern Law Reports : Editions, Digests, C. The Juristic Literature— Mirrour aux Justices, .... Fortescue, ..... Littleton, ..... Doctor and Student, .... Fitz-Herbert, ..... Staunforde, ..... Sir Thomas Smith, Sir Edward Coke, .... Hale, Comyns, Hawkins, Blackstone, ..... Local Customs and Laws, .... Courts of Chivalry. Admiralty Court. University Courts, Ouriffi Christianitatis, .... Wales and Ireland, .... Historical Works on this Period, Bibliographical Appendix, .... 32 34 35 37 38 39 40 40 40 41 41 42 43 46 47 47 47 47 49 Digitized by Microsoft® THE SOURCES OF THE LAW OF ENGLAND. AN HISTORICAL INTRODUCTION TO THE STUDY OF ENGLISH LAW. De. h. beunnee, PKOFESSOB IN THE UNIVEESIIY OF BEELIN. 3Eran0lateli itam tiie ffinman. Digitized by Microsoft® Digitized by Microsoft® THE ANGLO-SAXON LAW.i The Institutions of the Anglo-Saxons occupy in the History of English Law the same position as is held by the popular Laws in the legal history of the other German races. The independent development of the Anglo- Saxon system was interrupted by the Norman Conquest, but it has maintained itself in part along with the Norman innovations, and entered with them into the historical foundations of the present political and legal constitution of England. The riches of the Anglo-Saxon legislation in the five centuries from ^thelbirht to William the Conqueror, and the purely Germanic character of the Law,^ which was not at all influenced by the Eoman Law,^ and ' [A reference to the Sources of the Laws of the Ancient Britons is appended to this Section.— Tr.] '^ ['The constitutional history of Germany is the hardest, as that of France is the easiest, subject of historical study. . . . England, although less homogeneous in blood and character, is more so in uniform and pro- gressive growth. ... If its history is not the perfectly pure development of Germanic principles, it is the nearest existing approach to such a development. ' — Stubbs, Constitutional History, i. 6. ] ' [The question of the influence of the Roman Law in the early British period, and of the survival of traces of that influence, is an interesting his- torical problem. Selden discussed the question with his characteristic erudition and ingenuity in his Preface to the Fleta {infra, p. 28), and A Digitized by Microsoft® 2 SOUECES OF THE LAW OF ENGLAND. only in a very slight measure by the Canon Law, make it worthy of special study. At the same time, the Anglo- Saxon Legislation is of prime importance as a Source ' of Law, in its relation to the Germanic system generally, from its being expressed in the original language of the Anglo-Saxon peoples,^ which in Germany did not begin to supersede the Latin till the Thirteenth Centuiy. And finally, it is of special value from its presenting an unin- terrupted series of legal Sources, whereas in the Germanic system elsewhere there is a gulf which it is difficult to fill in the legal history between the Ninth and the Thir- teenth Centuries. All these circumstances indicate the importance, both practically and theoretically, of the Anglo-Saxon system of Laws. Among the Anglo-Saxons, the institution of the law took place at the national Councils called Witenagemotesi^ maintained that the Roman Law had left no trace in England, and only leappeared in the 12th century after the scientific revolution of the School of Bologna. Savigny (in his Geschichte des S. Eeehts im Mittelalter, ii. 159) examines the question with his usual thoroughness and care. After referring to Selden's view, he shows that there are traces in the National Laws from the time of the Normans that betray some knowledge of the Roman Law, and that some indications of its study are found in the 8th century. (Cf. Lerminier, Histoiredti Droit, p. 237 et seq.,and Gatheart's Introduction to his translation of Savigny's History of the Roman Law, vol, i.) Stubbe is more cautious in his negative than Prof. Brunner, summing up thus : ' The vestiges of Komano-British Law which have filtered through' local custom into the common law of England, as distinct from those which were imported in the Middle Ages through the scientific study of law or the insensible infection of cosmopolitan civilisation, are infinitesimal.'-!— Co?!."!*. Hist. i. 62. — Tb.] ' [' The English of Alfred's time is, except where the common terms of ecclesiastical language come in, purely Germanic. ' — Stubbs, Const. History, i. 62.] 2 [Witenagemot, from THtana, ' sapientes,' wise, and gemot, a meeting. ' It is not a collection of representatives ; its members are the principes, the sapientes, the comites and counsellors of royalty, the bishops, the Digitized by Microsoft® THE ANGLO-SAXON LAW. 3 at which the King took counsel with the nobles and wise men of the country, called the Witan, regarding the maintenance and strengthening of peace. As in the case of the national laws of the Germans, the laws of the Anglo-Saxons (Domas) partly fixed the already existing customary law and partly created new law. The Sources of the Anglo-Saxon Law may be indicated most succinctly by following the groups into which they have been arranged by Gneist. 1. The Old Kent Legislation. — This embraces the Laws of ^Ethelbirht (560-616) regarding Wergeld ^ and ' com- pensations ' or ' amends,' ^ and especially those relating to members of the body ; the so-called Laws of Klother and Cadric (after 673) of a criminal and process nature ; and lastly, the Laws of Wihtrted (696) regarding matters of ecclesiastical and criminal Law and manumissions. 2. The Laws of Ine. — Ine was king of Wessex or of the "West Saxons (688-727), and his Laws are note- worthy from their greater range, as well as the circum- stance that Wessex afterwards became the ' caput regni et legum ' (Leges Henr. i. c. 70). This relation also explains the consideration which was given to their deter- minations, especially those relating to infringements of peace, in the later legislation. 3. The Laws belonging to the period of the consolidated Kingdom.— The Laws of Alfred of Wessex (871-901) belong to this period. They probably took their rise towards the end of his government, when, after his long wars with the Danes, he could think of re-establishing ealdonnen, and the King's tliegns. The Witenagemot can never have been a large assembly.' — Stubbs.] ^ [' Wergild, the payment for the slaying of a man.' — Stubbs.] ' [' Bot, amends, reparation. Lat. Emendalio.' — Stubbs.] Digitized by Microsoft® 4 SOURCES OF THE LAW OF ENGLAND. the condition of law that had been overturned. They contain in part a repetition of the Laws of ^^thelbirht, Offa, and Ine. Legal regulations regarding 'Wergeld,' oaths, guarantees, and other matters, are also found in Alfred's Compact of Peace with the Danish chief Guthrum (880-890). — The Laws of Edward the Elder (901-924) conlain two laws. The older one treats of purchase, legal denial, and perjury ; and the later con- tains determinations of different kinds with a view to the preservation of peace. — The so-called Laws of Edward and Guthrum relate mainly to ecclesiastical relations. — The Laws of ^thelstan (924-940) arose in different Councils, the chronology of which cannot be exactly determined. They include the Constitutio de decimis ; the Concilium, Grcat-Angleagense, ..Ethelstan's most im- portant law; the Concilium Exoniense ; the Concilium Fefreshamcnse (decisions of a Witenagemote under reser- vation of the royal sanction) ; the Concilium Thunresfel- dense, an enlarged confirmation of the decisions of Exeter and Fevresham ; and lastly, the Judicia civitatis Londonia:, an interesting legal monument, which among other things contains the statutes of the peace-guilds of London relat- ing to the whole corporation. — The Laws of Edmund (940-946) consist of the Concilium Zondinense on spiritual and temporal matters, and the Concilium Culin- tunense relating to theft. — The Laws of Edgar (959-975), among which are to be reckoned with great probability the Constitutio de Sundredis, and certainly the Concilium Wihthordestanense and the Concilium Andeferanense. — The Laws of ^Ethelred (978-1016) close the series of the laws of the Anglo-Saxons that were established by national rulers. Out of the great number of these laws, the most important are the Concilium Wudestockiense, a Digitized by Microsoft® THE ANGLO-SAXON LAW. 5 compact of peace with the Danes, the Concilium Wanetun- gense, the Constitutiones of 1008 and 1014, the Concilium, uEnhamcnse, and the Concilium apud Habam. 4. The Laws of Cnut (1016-1035) are those that were passed at the Concilium Wintoniense. They are divided into leges ecclesiasticce and leges civiles, and for the most part tliey repeat older Anglo-Saxon laws. The genuine- ness of the Constitutiones cle forcsta is disputed on good grounds, for although they are ascribed to Cnut, they already contain traces of the terminology of the Eoman Law. 5. There are also several private compilations, which are to be regarded as sources of the Anglo-Saxon Law, although they were composed under the first Norman kings, partly from the intention of maintaining the con- tinued existence of the old law in opposition to that of the conquerors. The Pseudo-leges Canuti are of subordinate importance, being a somewhat planless digest of Anglo- Saxon laws, part of which was taken from a source that is unknown to us. It is supposed that this collection originated in the time of Henry L The so-called Leges Henrici Primi possess a far higher value. The designation of this law-book is derived from the first two chapters, which contain Henry's Charter of 1101, and a privilegium or Charter granted by him to London ; and these have been placed by the author, after a short introduction, at the head of his work. The. remaining part of the work has in many respects a compilatory character. Among other things, the author has made use of the Decree of Burchard of Worms, the Lex Salica, the Lex Eibuariorum and Frank Capitularies, but he has drawn most liberally from the Anglo-Saxon Laws, which were taken as the basis for his work in the Latin translation known as the ' vetus versio.' Digitized by Microsoft® 6 SOURCES OF THE LA.W OF ENGLAND. Some of his positions contain Norman and not Anglo- Saxon law, and the author does not seem to be conscious of the fact. In the terminology many Norman expres- sions are already involved. The style is stilted ; the text is frequently corrupt ; and hence it is less appreciated as a law-book on account of its obscurities which defy all interpretation. The utilization of the sources of the Canon Law, the scholastic culture, and the want of a juristic method of thinking betrayed by the work, are grounds for supposing that it had a clerical author, while his preference for the Anglo-Saxon Law as the old tradi- tional system, indicates that he was a born Anglo-Saxon. The date of its composition is disputed. It was formerly attributed to the reign of Stephen or of Henry II. ; but Liebermann has lately made it extremely probable that the book as a whole was composed between the years 1108 and 111 8, — The so-called Leges Edwardi Confessoris profess at their outset to be the result of an Enquite (in- quisitio) which William the Conqueror caused to be made into the Anglo-Saxon Law by twelve sworn representatives in the fourth year of his reign. But the contents of the book show that it is a private compilation, undertaken from a learned interest, in the Twelfth Century prior to 1135, and that it gives a summary of the determinations fouad in the older Anglo-Saxon Sources. 6. There are also certain isolated Eegulations and Directions of an uncertain date regarding 'Wergeld,' oaths, exorcism by ordeals, judicial formulae, and other matters. Of these mention may specially be made of the so-called Senatus-ConsuUum de Monteculis Waliice (Ger- sednes betweox Duns^tan), a Law which regulated the intercourse on the frontier between the "West Saxons and the Westphalian race of the Dunsetes ; and also the Digitized by Microsoft® THE ANGLO-SAXON LAW. 7 Bectitudines singularum personarum, a private composition regarding the burdens attaching to different kinds of goods. 7. Lastly, there are many other Documents which have heen handed down from the Anglo-Saxon period, written partly in Latin and partly in Anglo-Saxon, and which contain without doubt many falsifications ; but the testing of them is made difficult by the fact that the Anglo- Saxons were not guided by any fixed diplomatic rules in composition. Special importance is assigned to the documentary source called the B6c, which relates to the possession of the soil. Wlien the soil was acquired as property by hoe, it was called hoc-land, and it was again alienated and taken over into possession by transfer or delivery of the documentary record (hok or hdc) of the original acquisition.^ LITEEATUEE. The Anglo-Sa-zon laws. — Wilkius' Edition, Legos Anglo-Saxonicse, cnm notis versione et glossario, Lond. 1721 (Reprinted in Houard's Trait& sur les coutiimes Anglonormandes, II.). But Wilkins is now superseded by the Edition of the Record Comminsion : ' Ancient Laws and Institutes of England, comprising Laws enacted under the Anglo- Saxon Kings from iEthelbirht to Cnut, with an English Translation of ' [' Boc-land, land the possession of which was secured by book, i.e. charter. ' Bocland ' can produce the charter or book by which it is created,' or it is ' an estate created by legal process out of the public land. All the land that is not so accounted for is folcland or public land.' ' The different explanations of folkland and bookland, given at different periods, are col- lected by Schmid, Gesetze, p. 538. ' — Stubbs' Const. Hist. i. 76, note (giving a summary statement of these explanations). — ' From the beginning of the Tenth Century the expi-essions " b8c-land " and "folc-land" appear as the invariable equivalents of the ager privatus and the ager publicus,' — Gneist, History, p. 3. — Tk.] Digitized by Microsoft® 8 SOUKCES OF THE LAW OF ENGLAND. the Saxon, the Laws called Edward the Confessor's, the Laws of William the Conqueror and those ascribed to Henry the First, with a com- pendious Glossary, etc. . . . printed under the direction of the Commis- sioners on the Public Records of the Kingdom, Lond. 1840.' (Begun by R. Price, and after his death completed by Thorpe in Fol. and also in 2 vols. Oct. ) — On the basis of the Record Commission Edition is founded the German Ed. by Reinhold Schmid : Gesetze der Angelsachsen (2 Ed. 1858), with German Translation, excellent Introduction on the history of the Sources, and valuable Glossary. — Selections from the English Translation of the Anglo-Saxon Laws are given in Stubbs' ' Select Charters and other Illustrations of English Constitutional History, 3 EJ. 1876.' Charters and other Documents. — The most complete Collection of Anglo-Saxon documentary Sources is given by Kemble, Codex diplo- matious sevi Saxonici, 6 vols. 1839-46 ; with Facsimiles of Ancient Charters in the British Museum, published by order of the Trustees, 1873. (The best account of the Sources of the Anglo-Saxon Laws is that of Schmid, from which the preceding sketch is takeu. ) See also Stobbe, Rechisrjuellen, I. 194, and Gneist's History, I. 5. HISTORY OF ANGLO-SAXOX LAW. Kemble, The Anglo-Saxons in England, 2 vols. 1849. New ed. by Birch, 1876. Sir Francis Palgrave, The Rise and Progress of the English Common- wealth, 2 vols. 1831-32. Professor W. Stubbs, The Constitutional History of England in its Origin and Development, 3 vols. 2 Ed. 1875. (This work is based upon thorough historical inquiry, and incorporates the results of the German historical literature on the subject. The first chapters of vol. I. are devoted to the Anglo-Saxon Law.) Essays in Anglo-Saxon Law, Bcston 1876. Containing The Courts of Law, by H. Adams ; The Land Law, by Cabot Lodge ; Tlie Family Law, by E. Young ; The Legal Procedure, by L. Laughlin. Dr. Eudolph Gneist, The History of the English Constitution. Translated by P. A. Ashworth, Barr. -at-Law. 2 vols. Lond. 1886. Konrad Maurer, Krilische Ueherschau, I. II. III. Phillips, Geschichte des Angelsachsichen Rechts, 1825. H. Brunner, Zur Rechtsgeschichte der Rbmischen und Germanischen Urkunde, 1880 (Das Angelsachsiche Landbuoh, I. 149 et seq.). [G. Crabb, History of the English Law, 1829.] [Sharon Turner, History of the Anglo-Saxons, 3 vols. 1799-1835.] [C. J. Elton, Origins of English History, 1882.] Digitized by Microsoft® THE ANGLO-SAXON LAW. ? THE LAWS OF THE ANCIENT BRITONS. [It did not fall within the scope of Dr. Brunner's Article to deal with the sources of the Laws of the Ancient Britons, but the recent and increasing historical and comparative interest in the primitive system necessitates a reference to the available means of studying its various forms. [1. The Ancient Laws of Wales were published by the Record Com- mission in 1841, the year after the appearance of the' Ancient Laws and Institutes of England, etc. (ut supra), under the title ' The Ancient Laios and Institutes of Wales, comprising Laws enacted by Howell the Good, modified by subsequent regulations under native priuces prior to the Conquest, etc., with an English Translation, Indexes, and Glossary,' 1 vol, fol. or 2 vols. oct. 1841. This critical and complete edition (by Aneurin Owen) supersedes the older edition by Wotton {Leges Walliai, 1730), being founded critically upon the Latin recension of the 13tli century and the three Welsh recensions. Howel Dda is said to have drawn up these Laws about 943. They are very extensive in their range, embracing Criminal, Private, and Process Law. No certain traces of Roman Law are found in them, but they have points of affinity to the old Anglo-Saxon Laws. — The fragments of Laws traditionally attributed to King Dyvnal Moelmud, and referred to the fourth century B.C., are spurious. [2. The Ancient Laws of Ireland have been similarly published as ' The Ancient Laws and Institutes of Ireland,' 4 vols. 1865-80. The significance and value of the ancient Laws of Ireland, called the Brehon Laws, have been pointed out and illustrated in a singularly interesting and suggestive way by Sir H. S. Maine, whose account of them, as thus published, is as follows : ' The ancient Laws of Ireland have come down to us in an assemblage of law-tracts, each treating of some one subject or of a group of subjects. The volumes officially translated and published contain the two largest of these tracts, tlie Senchus Mor, or Great Book of the Ancient Law, and the Book of Aicill. While the comparison of the Senchus Mor and of the Book of Aicill with other extant bodies of archaic rules leaves no doubt of the great antiquity of much of their contents, the actual period at which they assumed their present shape ■ is extremely uncertain. Mr. Whitely Stokes, one of the most eminent of living Celtic scholars, believes upon consideration of its verbal forms that the Senchus Mor was compiled in or perhaps slightly before the eleventh century ; and there appears to be internal evidence that allows us to attribute the Book of Aicill to the century preceding. The Senchus Mor expressly claims for itself a far earlier origin ... it is far from impossible that the writing of the ancient Irish laws began soon after the Christianization of Ireland. , . . The tracts are of very unequal size, Digitized by Microsoft® 10 SOUEQES OF THE LAW OF ENGLAND. and the subjects they embrace are of very unequal importance. . . . We, who are able here to examine coolly the ancient Irish law in an authentic form, can see that it is a very remarkable body of archaic law, unusually pure from its origin. It has some analogies with the Roman Law of the earliest times, some with Scandinavian Law, some with the law of the Sclavonic races, so far as it is known, some (and these particularly strong) with the Hindoo law, and quite enough with Old Germanic law of all kinds, to render valueless for scientific purposes the comparison which the English observers so constantly institute with the laws of England. It is manifestly the same system in origin and prin- ciple with that which has descended to us as the Laws of Wales ; but these last have somehow undergone the important modifications which arise from the establishment of comparatively strong central government.' {Early Hist, of Institutions, sect. I.) (See also the Article ' Brehon Law' in the new Ed. of the Encyclop. Britann.) [3. The ancient Celtio inhabitants of Scotland have not transmitted any body of Laws in the Gaelic language like those of the Welsh and Irish, and there are only a few later traces of such laws. The Picts and Scots, however, made considerable progress in civilisation, and their system of justice was undoubtedly the same in essentials as that of" ancient Wales and Ireland. A Latin fragment, entitled Ltges inter Brettos et Scotos, of later date, preserves a representation of a part of the early system of pecuniary mulcts or penalties, ' cro,' but in a meagre form. If what we possess of the 'Leges inter Brettos et Scotos' 'be all that ever existed, that code must have had a very limited range. The only thing dealt with is the pecuniary retribution for slaughter or personal injury.' J. Hill Burton, II. 62-3. 'In all Southern Scotland, we find hardly any traces remaining of a peculiar Scotch or Celtic Law dis- tinguished from the customs of our Teutonic, our Saxon forefathers.' Cosmo Innes, Legal Antiq. 96. ' When all is told, Scotland has nothing to compare with the Irish Annals or the Welsh Triads. ... It has no equivalent to the collection of laws contained in the Senchus Mor or Kain Patrick of Ireland and the Dimetian and Venedotiau Codes of Wales.' jEneas J. G. Mackay (Art. Scotland in Encyc. Britann. XXI. 474). The Leges inter Brettos et Scotos are printed in Appendix III. to vol. I. of ' The Acts of the Parliament of Scotland ' (Eeeord Ed. 1844), in Latin, French, and A.-S. —On the ancient institutions of Celtic Scotland reference may be made to Chalmers' Caledonia ; E. W. Robert- son's Scotland under her Early Kings, 2 vols. 1862 ; AV. F. Skene's Chronicles of the Picts, Chronicles of the Scots, aud other early Memorials of Scottish History, 1867 ; and his Highlanders of Scotland, their origin, history, and antiquities, 2 vols. 1837 ; and J. Hill Burton's History of Scotland, vols. I. II.— Tr.,] Digitized by Microsoft® Section ^fcontr* THE ANGLO-NOKMAN LAW. 1. From William I. to Henry II., 1066-1154. The Conquest of England showed the superiority of the political order of the Normans, with its feudal elements, to the political system of the Anglo-Saxons, that had fallen into decay from its being unable either to maintain the old federal foundations or to develop into the form of a feudal State.^ The conflict of the two systems of Law began in consequence of the Conquest ; and here, too, the Norman system proved itself in many respects the stronger. The principles of the Franko-Norman Law in the consti- tution and administration of the State, as well as in the private, criminal, and process law, obtained full authority in England. They were here developed as the ' Feudal System,' and in part to an extreme and pointed form such as they did not assume in the region where they had originated. ' [ ' The effect of the Norman Conquest on the character and constitution of the English was threefold. The Norman rule invigorated the whole national system ; it stimulated the growth of freedom and the sense of unity ; and it supplied, partly from its own stock of jurisprudence and partly under the pressure of the circumstances in which the conquerors found themselves, a formative power which helped to develop and concen- trate the wasted energies of the native race.' — Stubbs, Const. Hist. i. 247.] Digitized by Microsoft® 12 SOURCES OF THE LAW OF ENGLAND. The Normans applied the Norman system of Law to their own mutual relations to each other in England. The relationships between Normans and Anglo-Saxons were, however, regulated by special legal determinations. The Anglo-Saxons were indeed guaranteed the unmodified con- tinuance of their law in principle, but the result was what commonly happens in the case of mere concessions in principle. In practice, little attention was paid to the guarantee, for the movement of the actual relationships was stronger than the principle laid down. Normans formed almost exclusively the higher grade of society, and they possessed the greater part of the soil. They pressed into the Court of the King, while the Anglo- Saxons after fruitless revolts kept away in a discontented mood from the new order of things. The spiritual and secular offices were held by Normans. They formed the ' Curia Eegis,'^ and the highest court was thus given up to ' [' The Curia Regis, the supreme tribunal of judicature, of which the Exchequer was the finaucial department or session, was the court of the King, sitting to administer justice with the advice of his counsellors.' — Stubbs. In elucidation of this term and subsequent references, the follow- ing explanation may also be quoted : ' The orgauization of the justiciar's administration dates from the reign of Henry I., the chief ^ystematizer of it being Roger, Bishop of Salisbury, whose family retained the direction of the machinery for nearly a century. The staff of the justiciar is a. selection from the barons or vassals of the Crown who are more nearly connected with the royal household, or qualified by their knowledge of the law for the position of judges. These are formed into a supreme court attendant on the King, the Curia Regis, which, when employed upon finance, sits in the chamber and is known by the name of the Exchequer. The several members are called, in the Curia, justices, their head being the capitalis juistitiarius, or chief justice ; in the Exchequer, barones or harojies scaccarii. . . . Henry II. found it necessary in 1178 to restrict the number of those who exercised their functions in the Curia to five. This limited tribunal is the lineal predecessor of the existing Courts of King's Bench and Common Pleas.' — Stubbs, Select Charters, ii. 23.] Digitized by Microsoft® THE AKGLO-KOUMAN LAW. 13 the influence of the Norman Law, a fact which was of the greater importance as in England the practice of the royal tribunals, by an unexampled centralization of the adminis- tration of law, completely controlled the development of the legal system. This process did not show itself in all its extent im- mediately after the Conquest. The Normanizing of the country and of its law went on gradually. Under William the Conqueror the legislation still moved on the lines of the Anglo-Saxon period. But the Latin then came in partially as the language of the law, till it com- pletely supplanted the Anglo-Saxon. The Latin again began to be exchanged for the Prench from the time of Edward L, and from the reign of Eichard II. it completely gave way to it. Of "William the Conqueror (1066-1087) we possess four laws. 1. The Leges et consuetudines quas Willelmus rex post adquisitionem Angliae omni populo Anglorum con- cessit tenendas. To these laws may perhaps be referred the statement prefixed to the Leges Udwardi, that the Anglo-Saxon Law was established by an inquisitio ordained by William I. The determinations of these laws are for the greater part Anglo-Saxon, and only a few of them are new and bear upon the relationship between the JSTormans and the Anglo-Saxons. 2. Willelmes Cyninges Asetnusse (King William's Ordinances), a Law in the Anglo-Saxon language which regulates the procedure in legal processes between Normans and Anglo-Saxons. 3. Carta Willelmi da quibusdam Statutis, which we possess only in a revised form. 4. An Ordinance regarding the separation of the spiritual and temporal judicatory, regulating this point by the Continental principles in opposition to the Anglo-Saxon custom. Digitized by Microsoft® 14 SOUECES OF THE LAW OF ENGLAND, The Domesday Book originated towards the end of the reign of "William as the result of an official Enquete. It is the ' Book of the Land of the Kingdom,' and it contains a specialization of the proprietory relations of the land for fiscal purposes. It was officially published in 1783 in two vols, folio ; and in the year 1816 the Eecord Com- mission added two supplementary volumes.^ To the Financial Administration of the Normans in England we owe another important source of law, in which, although the fiscal point of view predominates, we find important points connected with the existence of legal institutions and principles, as it embraces the whole political and legal arrangement of the jSTormans. "We refer to the Accounts of the E.xcheqvier, which in England go farther back than those in Normandy, although they give less detail with regard to the Accounts of particular im- posts. — The oldest English Treasury EoU dates from the thirty-first year of the reign of Henry I. The Eolls of the Pipe (Rotuli pipte) have been published separately by the Record Commission. (Editions : Magnus Eotulus Scaccarii vel Magnus Eotulus pipse, de anno 31 ; regni Henrici I. (ut videtur) 1130-1131, ed. Josepli Hunter, 1833. Tlie Great Eolls of the Pipe for 2, 3,4 Henr. II., 1155-1158, ed. Hunter, 1844. The Great Eolls of the Pipe for 1 Eichard I. 1189-1190, ed. Hunter, 1844. Eotulus Cancellarii vel Antigraphum Magni Eotuli Pipte de tertio anno regis Johannis (1201, 1202), London 1833. Eotuli de Liberate ac de Missis et Prsstitis, regnante Johanne, cura Th. Duffus Hardy, 1844. Eotuli 1 [' Next to the laws and charters of the early Kings, the record of local customs in Domesday Book (1086) is the source of the most certain infor- mation as to the common law of England before the Conquest.' — Stuhbs. Cf. Sir H. Ellis, A general introduction to Domesday Book, 2 vols. 1833.] Digitized by Microsoft® THE ANGLO-NORMAN LAW. 15 de Oblatis et Finibus in turri Londinensi asservati tem- pore regis Johannis, accurante Tli. Duffus Hardy, 1835.) The entries of the Liberate EoUs, referring to the borrow- ings of the English kings from tlae Italian merchants in the Thirteenth and Fourteenth Centuries, are explained and collected in a treatise by Edward A. Bond, entitled ' Extracts from the Liberate EoUs relative to Loans sup- plied by Italian merchants to the Kings of England in the 13. and 14. Centuries.' This treatise is contained in the 28th Volume of the Archseologia (1840), published by the Society of Antiquaries of London. The essay supplies excellent accounts of the credit system of the English king- dom, and valuable material for a history of bills of credit. During the reign of Henry I.^ (1100-1135) a Trac- tate was composed on the English Law, of which unfor- tunately only the Preface and a part of the First Book have been preserved. The author himself gives the following statement regarding the contents of this law-, book : ' Primus liber continet leges Anglicanas in Latinum translatas (a Latin translation of the laws of Knut, Cone. Winton.) ; Secundus habet quasdam scripta temporis nostri necessaria ; Tertius ■ est de statu et agendis causarum ;. Qiiartus est de furto et partibus ejus.' The last three books, the second of which promised important informa- tion regarding the Anglo-Norman Law, have disappeared. Hopes of finding them were entertained by Cooper, as stated in his work, ' An account of the most important Public Eecords of Great Britain and the Publications of the Eecord Commissioners, 1832, vol. ii. 412,' where we have a reprint of the Preface and a detailed account of tliis lost Tractate. 1 [On the Laws of King Henry I. see an interesting discussion in Eobert- sou's ' Scotland under her early Kings,' vol. ii. Append. T. — Tk.] Digitized by Microsoft® 16 SOUECES OF THE LAW OF ENGLAND. A useful compilation of the older Anglo-Norman docu- ments relating to the administration of justice in the Courts, and forming a corpus placitorum for the period from William the Conqueror down to 6 Eichard I., has been published by Bigelow. It is entitled ' Placita Anglo- uormannica, Law Cases from William I. to Eichard I., preserved in historical records, 1879.' The collection is- drawn only from printed sources. It is mainly compos.ed of process reports of the English Scrvptores, of royal pro- cess mandates or writs of procedure, and passages of the Domesday Book and of the Exchequer Eolls. 2. From Henry II. to about 1300. The formation of Law received an enduring impulse during the reign of Henry II. (1154-89), who had been from 1150 Duke of Normandy, and the ' Capitalis Justitiarius Anglite ' under Stephen. The Constitutions of Clarendon (1164) and of Northampton (1176), of his time, are of epoch - making importance. It was Henry II. who, first in Normandy and then in England, introduced Eecognition by Jury as an ordinary means of proving cases of a civil kind. Before this time, trial by jury had been only applied in exceptional cases ; and by this step Henry II. laid the foundation for a development not only of the English process law, but also of the private law that had become intimately connected with it.^ Founding upon isolated attempts of an older time, he further created the institution of Itinerant Justices (Justitiarii itinerantes, 'Justices of Eyre,' i.e. in itinere). 1 [' Henry IL, if not the inventor, was the great improver of the system of recognitions by jury. . . . Out of these recognitions arose the system of trial by jury.' — Stubbs.] Digitized by Microsoft® THE ANGLO-NOKMAN LAW, 17 For the purpose of commissary exercise of the jurisdiction reserved for the King's Court, he divided the kingdom into great circuits, a measure which had its historical analogue in the organization of the ordinary Missi of Charlemagne. From the time of Eichard I. (1189-99) there have been preserved the Capitula Itineris, or the instructions which were communicated to the Itinerant Justices, and in their form and contents they recall the Carolingian Capitulare Missorum. In connection with this innovation, a coUegial administration of justice, called the Bancum, was separated from the time of Henry II., from the Exchequer ; and during the reign of Eichard I. a standing Court for common civil suits branched off from this Bancum in the ' Court of Common Pleas ' {Gommunia Placita). ' The formation of Law in England,' says Gneist, 'thus came much earlier into the hands of technically-trained judges than on the Continent, and the customary Law became more definitely restricted than was ever the case in Germany.' .Under Henry II. there also begins in England the literary cultivation of the Anglo-Norman Law, with the exception of the lost tractate belonging to the time of Henry I. This literary cultivation of the Law, by its dealing with the financial administration of the Scaccarium, and the procedure of the King's Court (Curia Eegis), shows whence it received its impulse. Following Gundermann, to whom we owe an excellent survey of the sources of English Law down to Henry VIII., the material coming into consideration for this period may be grouped under the following points of view : — Statutes ; Judicial Sources ; and Treatises on 'Law. B Digitized by Microsoft® 18 SOURCES OF THE LAW OF ENGLAND. A. STATUTES. The English Jurists divide the whole mass of their legal matter into Statute Law and Common Law, accord- ing as its origin is to be found in legislation or custom. This distinction, however, is not strictly adhered to, and the notion of the Common Law has other contrasts. The early institutions of the Norman Kings are reckoned among the sources of the Common Law. They are either Constitutiones (Assiste'), promulgated by the King after consultation with the nobles, or they are called Chartce (charters), which are special royal concessions granted in order to remedy certain complaints. The ofiBcial edition of the Statutes arranges under the rubric of Charters, the Charters of Henry L of 1101, those of Stephen, 'De libertatibus ecclesie Anglicane et regni' of 1136, and some without date, those of Henry II. without date, those of John, ' Ut libere sint electionis totius Anglie ' of 1214, the 'Articuli Magne Charte libertatum' of 1214, the ' Magna Charta' of John of the 15th June 1215, the 'Magna Charta' of Henry IIL of 1216, 1217, 1224-25, the 'Charta de foresta' of 1217, 1224-25, and the further confirmations of the last two laws. The Statutes proper begin with the ' Provisiones de Merton' of the 20 th year of the reign of Henry III. (1235-36), to which there is regularly prefixed the Magna Charta and the Charta de foresta in the Statute collection of the Charters. The ' Statutum de Marleberge ' (Statute of Marlebridge), 1 2 6 7, is further to be mentioned on account of its importance, and as belonging to the time ' [' Assisa, an Assize: (1) an assessment; (2) a law or edict ; (3) a mode of trial prescribed by such a. law ; (4) the select body emjiloyed to carry out the trial ; (5) the trial itself.' — Stubbs.] Digitized by Microsoft® THE ANGLO-NOKMAN LAW. 19 of Henry III. Under Edward I. (1272-1307), 'the English Justinian,' the number of Statutes increased in such a measure that an enumeration of even the most important of them must be passed over here.^ The reign of Edward I. was fruitful in reforms. England then laid the essential foundations of its subsequent constitu- tion, and therewith the constitutional organism of its legislation. 'As the centre of the political government, there was then formed the Continual Council (afterwards the Privy Council), consisting of the spiritual and secular holders of the highest offices in the State. In conse- quence of special royal invitation, prelates and barons came periodically to join this Council, and they formed with it the Magnum Concilium, or Great Council of the Kingdom. Under Edward I. it further became the custom to summon deputies of the Communitates, or Eepresentatives of the Counties and Cities, to hold a discussion regarding extraordinary contributions, and soon thereafter also for the confirmation of the laws, and for aid in connection with the troubles of the country ; and from the time of Edward III. they were constituted as a special body. Thus was the external framework of an Upper and Lower House formed, and under their counsel and assent the kingdom formed the organic legislation of the current century.' (Gneist.) Editions of the Statutes. — The Laws of William I. are embodied in the official English Edition. They are also given by Schmid, with the ' Laws of the Anglo-Saxons.' From William I. to the beginning of the collections of the English Statutes proper, the successive laws are ' [See Blackstone's clear and vigorous summary, Book IV. Chap. XXIII, § iii.-TK.] Digitized by Microsoft® 20 SOURCES OF THE LAW OF ENGLAND. embodied in the Codex legum, veterum statutoriim regni Anglice ab ingressu Guilelmi I. usque ad A. 9 Henriei III., published by Sir Henry Spelman. This Codex is a compilation of fragments of the scriptores, of royal ordinances, privileges, constitutions, and such like, which Wilkins has printed from the posthumous papers of the author in his ' Leges Anglo-Saxonicse ; ' and Houard, following him, has also reprinted them in the second volume of his Aneiennes Loix. Better 'texts, although unfortunately without critical apparatus along with them, are presented in the more accessible collection drawn up from similar points of view by Professor Stubbs in his 'Select Charters,' 3rd ed. 1874. Valuable as this very useful collection is, it is, however, only to be regarded as a preparatory work, and a critical edition of the older Anglo-Norman Assises still remains an urgent want. — The whole body of the English Statutes, down to 1714, appears in the official edition from 1810-28, entitled ' The Statutes of the Eealm, from original Eecords and authentic MSS., printed by. command of His Majesty King George the Third, in pursuance of an address of the House of Commons of Great Britain, from the earliest times to the end of the reign of Queen Anne,' 11 vols, in fol.^ The first volume comes down to 50 Edward III. The most important of the older Statutes have been the subject of a celebrated Commentary by Sir Edward Coke in his ' Institutes of the Laws of England,' Part II. — Among the numerous Editions which have been published from the practical point of view, and which therefore leave out the antiquated Statutes, we may only mention ' [See C. P. Cooper's Account of the most important Puljlic Records of Great Britain, and tlie Publications of the Record Commissioners, etc., 2 vols. 1832.— Te.] Digitized by Microsoft® THE ANGLO-NORMAN LAW. 2 1 the ' Statutes at large from Magna Charta to the Union of the kingdom of Great Britain and Ireland,' by T. E. Tomlins and J. Eaitby, London 1811, 4to, 10 vols. B. JUDICIAL SOURCES. 1. Writs (Brevia). — There arose in the Eoyal Court of Justice in England, as in Normandy, an of&cial mode of procedure which was able to supplant the formal popular processes of duel and oath. It was limited in principle to the Curia Regis and was introduced by royal mandates (writs, brevia), and in part it was also extended further. At first such writs were a favour dispensed by the King for money in special cases. From the time of Henry II. they became a generally accessible means of law, as the royal Chancery was directed in all cases to furnish such Writs according to established formularies, to parties desiring them under certain conditions. The legal significance of the "Writ was different according to its purpose. It either turned upon bringing the process to the King's Court, and then the accused was summoned by a Breve, which commissioned the Vicecomes ^ to enjoin on the accused restitution of the object of the plaint ; and in case of this not being done, he had to answer for himself before the royal Court. Such a Breve was called a Writ of Prcecife, and it had its antecedent and model in a Frank Indiculus commonitorius. Or again, the Vice- comes was commissioned by the Breve to institute a proof by jury (recognitio), and to summon those who had thus to take cognizance of the question submitted for proof (Breve recognitiOnis). Brevia could also be issued I [' Vicecomes, a Sheriff. The word used after the Conquest to describe the Scyr-gerefa.' — Stubbs.] Digitized by Microsoft® 22 SOURCES OF THE LAW OF ENGLAND, on numerous other occasions. It is peculiar to the English Law, that even the procedure in accordance with the popular right, when it turned on possession of the soil, required to be introduced by a royal Breve. From the time of Henry II. it became a principle of law, that an accused person did not need to answer in the courts of the feudal lords in matters of controversy regarding possession of the soil unless a royal Breve were presented, which commissioned the lord of the court to administer the law ; and in the case of such a Breve not being produced, the Vicecomes had to under- take the matter {Brew de recto, corresponding to a Frank indiculus de justitia). In so far as the Brevia served to introduce the process, there was developed in England a procedure that is comparable to the Eoman formulary process. By the formulee of the Writs, the actions under the English Law were individualized so that Bracton could say ' tot formulae Brevium, quot sunt genera actionum.' The Brevia were divided into Brevia formata and Brevia Magistralia. The former were those for which the formulary was settled by law, the latter were attested by Chancery ' in consimili casu,' that is, in cases akin to those that had already been reviewed as actiones utiles, and this attestation was given to the plaintiff ' quia in novo casu novum remedium est appon- endum,' a process which was expressly regulated by the Second Westminster Statute, 13 Ed. I. c. 24. A dis- tinction was further made between Brevia origindLia, which introduced the process, and Brevia judieialia, which came in during its further course. Numerous forms of Writs are found in Glanvill, and in the text-books of the Thirteenth Century. The Statidum Wallim of 1284, which introduced the English process into Wales, is Digitized by Microsoft® THE ANGLO-NOEMAN LAW. 23 particularly rich in these forms. In the following period there arose collections and editions of the Writs which will be afterwards referred to. 2. Records. — The Eecords are minutes regarding the transactions and decisions of the royal Tribunals which were officially taken and preserved in the several Courts for the purpose of definitely establishing the judicial acts. There is a great number of these from a very early period of English history. The following have been published : (1) ' Placitorum in domo capitulari West- monasteriensi asservatorum abbreviatio temporibus regum Eic. I., Job., Henr. III., Edw. I., Edw. II.' This is an extract from the Court Eecords which was made in the time of Queen Elizabeth and published in 1811 by Eoyal Commission. (2) Further we have the 'Eotuli curiae regis, or the Eolls and Eecords of the Court held before the King's Justiciars,' published by Palgrave in 1835 (2 vols. 8vo), and ' containing the complete Eecords which have been preserved of the transactions before the Curia Eegis and the Itinerant Judges from Eichard I. to 1 John inclusive (vol. i. from the sixth year of King Eichard I. to the accession of King John; vol. ii the first year of King John).' 3. Reports. — The Eeports are literary summaries or sketches which were not composed, like the Eecords, for the purpose of of&cially fixing the judicial acts, but as incidental indications of the actual facts that occurred, so that the points of view relevant for legal practice in a judicial transaction are thus made a matter of public knowledge. They accordingly contain only a short narrative of the facts upon which the chief importance is laid in the Eecords, while the argument of the parties and the grounds of judgment are given in more detail. Digitized by Microsoft® 24 SOURCES OF THE LAW OF ENGLAND. From the end of the reign of Edward I. to the close of the reign of Henry VIII., paid reporters were appointed by the State for the preparation of these Eeports. From the time of Edward II. to that of Henry VIII., the Eeports have been printed under the name of Yenr- hooTcs, with a few blanks here and there. The first com- plete Edition appeared in 1610. The defects of the existing Editions have been pointed out by Cooper in his 'Account of the most important Public Eecords, etc.,' vol. ii. 391. The older Eeports belonging to the reign of Edward I. have been lately published with an English translation of the old French text: 'Year-books of the King Edward the First, edited and translated by Alfred J. Harwood, 30, 31 Edw. I., 1863 ; 32, 33 Edw. I., 1864; 20, 21 Edw. I., 1866,' in the Berum Britannicarum Medii -^vi Scriptores. C. TREATISES ON LAW (JURISTIC LITERATURE). 1. Dialogus de Scaccario. — The Dialogus de Scaccario is a Dialogue containing a treatise on the composition and administration of the Eoyal Exchequer, in which material is also found relating to private and process Law. ' It gives evidence of the early matured development of the art of administration in the Norman Commonwealth. It is a remarkable document, as showing the spirit of centralization and the official view of the State ; and it is hardly possible to find anything else like it in the Middle Ages ' (Gneist). The Dialogus was composed in 1178, or in the beginning of 1179, by Eichard Fitz- Nigel, Archdeacon of Ely and afterwards Bishop of London. The son of one of the higher officials of the Exchequer, the author had grown up in the atmosphere Digitized by Microsoft® THE ANGLO-NOEMAN LAW. 25 of the office in which he held the position of treasurer for forty years.^ His communications rest upon tlie exactest knowledge of the usual practice of the Scaccarium, and they were meant to' serve as a gviide for the Exchequer officials. The ' Dialogus ' has been printed as an appendix to the work of Madox on ' The History and Antiquities of the Exchequer of the Kings of England (London 1711 and 1769).' A similarly complete and somewhat purified text is given by Stubbs in his 'Select Charters,' pp. 168-248. A careful inquiry regarding the author and the origin and character of the work, along with a concise summary of its contents, has been published by E. Liebermann.^ 2. Glanvill. — Tractatus de Legih'us et Consuetudinibus regni Anglice tempore B. Henrici Secundi composilus justitice gubernacula tenente Ranulpho de Glanvilla. This work was ' the first attempt in the "way of a scientific elaboration of the legal material peculiar to any country in modern Europe ' (Gundermann). The author, Eanulph of Glanvilla, was ' Capitalis Justitiarius Angliae ' (Great Justiciar) from 1180 to 1189. This tractate is limited to a precise exposition of the procedure in the Eoyal Court, and it was written between 1187 and 1189. It is to be found in Houard's Trait^s I. Separate editions have appeared in England in 1554 (by Staunforde), in 1604, in 1780, and in 1812 by J. Beajnes (translated with Notes). 3. Bracton. — Henrici de Bracton, De legihus et con- suetudinihus Anglice, libri quinque. Bracton was an 1 [' This very important treatise is the work of Richard, Bishop of London, Treasurer of the Exchec^uer, son of Nigel, Bishop of Ely, his predecessor in the office, and great-nephew of Bishop Roger of Salisbury, the original organizer of the administration of that Court.' — Stubbs.] ^ Einleitung in den Dialorjvs de, Scaccario, 1875. Digitized by Microsoft® 26 SOURCES OF THE LAW OF ENGLAND. English Judge under Henry III. (1216-1272), and it is the standpoint of the practically trained jurist that appears everywhere in his extensive work. His name has been frequently distorted by copyists into ' Brycton,' ' Briton,' and such like, although he himself occasionally refers to incorrectly written forms of it as an exainjle of the grounds that may be advanced for the invalidity of a writ. Horwood, in his preface to the ' Year-books, 2 and 2 1 Edw. I.,' remarks that the correct form of the name must have been ' Bratton.' According to Giiter- bock, the book was written between the years 1256 and 1259. Like Glanvill's work, it expounds only the law and procedure of the King's Court and of the Missatic Courts. It gives the most extensive exposition of the English Law that the Middle Ages have to show ; and it is distinguished by rich casuistic details, and by the careful reproduction of the judicial decisions on individual cases of law. An English writer has counted that there are not less than 484 such cases referred to. In both of the relations indicated, the English jurisprudence has found its first typical expression in Bracton. In another connection Bracton stands alone in the literature of English Law, namely, in relation to the influence which he allows the Eoman Law to have upon his exposition. In the Twelfth Century tlie Eoman Law had obtained a transitory but careful cultivation in the University of Oxford, where it was taught by Vacarius. The doctrines of the Eoman Law have unquestionably influenced the older English Law-books, especially .as to the precision of their juristic ideas and their method of treatment ; but' in no English jurist does the first freshness of this impulse make itself so distinctly seen as in Bracton. The defini- tions of the general legal ideas, the divisions of the Digitized by Microsoft® THE ANGLO-NOEMAN LAW. 27 Science, and the terminology of the subject, as found in Bracton, are related in many respects to the Eoman and Canon Law, and he must have drawn his knowledge of them either directly from the Corpus juris civilis, the Decretum, and the Decretals, or from Azo's Summa of the Codex and the Institutions.^ On the other hand, the cases are extremely rare, in which Bracton leaves the ground of the law that was practically valid in England, in consequence of the Eoman point of view. Bracton's book on the Laws first appeared in 1569 in folio. The quarto edition of 1640 is an unchanged reprint of the folio edition. A new critical edition, with an account of sources and an English translation, based upon the oldest manuscripts, and the fifst printed edition of 1569, has been published by Sir Travers Twiss (1878-80). See also C. Giiter- bock's ' Bracton and his Eelation to the Eoman Law,' translated by B. Coxe (American transl), 1866.^ 1 [The influence of the Roman Law in determining or guiding the earliest products of the Juristic literature of England, is a subject of interest as well as of difficulty. It may be held that some knowledge of the Roman Law accompanied the application of the Canon Law in England in the llth Century. Savigny refers to the knowledge possessed by William of Malmesbury (t ilil) of the Visigothic Lex Momana, early in the 12th Century. Magister Vacarius, a contemporary of the first Glossators, taught the Roman Law at Oxford in 1149, and published his Summa Pmiperum in Legibus as an aid to poor students in studying it. Stephen, moved by the complaints of the practical lawyers, forbade the teaching of the Roman Law in the kingdom, but Vacarius is again found teaching it in .1170. (Cf. Savigny, GescMchte d. R. E. im Mittel. B. ii. 61, iii. 476, 'iv.' 422-430, 436.) — On the Study and Influence of the Roman LaW in England, Warnkonig also refers to two instructive Articles by Phillips and Kiener in the Zeitschri/t fur Gesetzgebung und Eechtswii- senscha/t dee Auslands, B. i. 400,and xix, 157. — Tr.] ' Giiterbock, Henrious de Bracton und sein Verhiiltniss zum Romischen Rechte, 1862. [Cf. two Articles on Bracton in the Law Quart. Rev. vol. i. 1885.] Digitized by Microsoft® 28 SOUECES- OF THE LAW OF ENGLAND. 4. Fleta. — Fleta seu commentarius Juris Anglicani. This is the work of an unknown jurist, and it owes its name to having been composed in the Fleet prison (Tractatus . . . Fleta merito appellari poterit quia in Fleta . . . fuit compositus). It was written about the year 1290, or, as Gtiterbock believes, somewhat after 1292. For the most part it consists of an Extract from Eracton, which is often in the same words, while it reduces Bracton's work to about a third of its extent. But it also makes use of Laws passed after Bracton's time ; and it completes his exposition otherwise in essential points. The Fleta was printed in 1647 and in 1685. Selden's \al\x.d,\A& Dissertatio Mstorica ad Fletam has been appended to both editions.^ An incomplete reprint is given in Houard's Traitis sur les coutumes Anglonormandes III. 5. Thorton. — The law - book of Gilbert of Thorton, entitled Siomnia de legibus et consuetudiniius Anglice, etc., belongs to the year 1292. The author was ' Capitalis Justitiarius Anglite ' under Edward I., and, as he states himself, his wish was to produce a compendium of Bracton's extensive work. At the outset Thorton promises to give an account of the post-Bractonian legislation, but this is not found in the work. Thorton's Summa has not yet been printed, but accounts of it are given by Selden in his Dissertatio ad Fletam. 6. Britten. — A law-book on the Laws and Customs of England current under the name of Britton, takes a more independent relation to Bracton than the two last- mentioned works, yet it has sometimes been groundlessly represented as an excerpt from Bracton, or as a revision of his exposition. According to the investigations of the ^ [Seidell's Dissertation, translated by R. Kelham, 1771.] Digitized by Microsoft® THE ANGLO-NOEMAN LAW. 29 latest editor, it owes its origin to the project of Edward I. to produce a digest of the English Law somewhat after the manner of the Institutes of Justinian. The work is not composed in the manner of a law-book, but introduces its legal propositions as by authority of the legislator in such phrases as nous voloms, nous grauntoms, etc. The author, Britton, is supposed to have been a clerk employed in the service of the Crown.^ As the statute Quia anptores terrarum, 18 Ed. I., is cited as une novels constitution, Britton must have written soon after 1290. In the form in which it appears it must have been composed later than the Eleta. It is the oldest English law-book in the French language. The earlier editions of 1540 and 1640 have now been superseded by the careful edition of Nichols, with English translation, references to the parallel passages of Bracton, the Fleta, and the Statutes, and with glossary and index. [Bretton : The French Text carefully Eevised, with an English Translation and Notes. By F. N. Nichols. 2 vols. Oxford 1865.] 7. Hengham. — Ealph of Hengham's Summa magna et parva is a tractate of smaller compass than Britton's work, and dating likewise from the time of Edward I. Its object was to complete Bracton's work in connection with the doctrine of Defautes and Ussonies. It is printed as an appendix to Fortescue's Works in the edition of 1737, foUo. 8. ret assevoir. — The editions of the Fleta have as an appendix a small old French treatise which begins with the words Fet assevoir. Its contents relate to the form of legal process or procedure. ' [The work has also been attributed to John de Bretton, Bishop of Hereford.— Tk.] Digitized by Microsoft® 30 SOUBCES OF THE LAW OF ENGLAND. LITEEATUEE RELATING TO THE SOURCES OF THIS PERIOD. Sir Matthew Hale, History of the Common Law. 2 Vols. An unfinished work, edited from the Author's manuscripts, by Eunnington, 6 Ed. 1820. J. Eeeves, History of the English Law from the time of the Saxons to the end of Philip and Mary. 4 Vols., 3 Ed. 1814 ; and Vol. V., contain- ing the reign of Elizabeth, 1829.— New Ed. under the Title : History of the English Law from the time of the Romans to the end of the reign of Elizabeth, by "W. F. Finlayson, 3 Vols. 1869. This is the most complete and thorough work on the History of the English Law ; but Finlayson's Notes and alterations of the Text are not commendable. G. Crabb, History of the English Law. 8vo, 1829. Somewhat superficial. W. Stubbs, Constitutional History of England, 8 Vols., 2 Ed. 1877. The third Vol. comes down to the death of Richard III, Phillips, Englische Reichs- und Rechtsgeschichte, seit der Ankunft der Normannen. 2 B. 1829. Down to 1789.— Cans, Das Erbrecht in weltgeschichtlicher Entwicklung, IV. 250 et seq, — Savigny, Geschichte des R. R. IV. Anhang 24. — Biener's Das Englische Geschwornengericht (1852) gives a survey of sources, and is an important work on the History of the English Jury. — Gundermann's Englisches Privatrecht, I. (1864), treats at considerable length of the Sources of the Common Law, especially with reference to Private Law and Procedure. — Gneist's History also arranges the sources of the Law in groups at the beginning of the principal chapters. The History of the Law of Immoveables is given in Kenelm E. Digby's Introduction to the History of the Law of Real Property, with original Authorities, 1875. The History of the Process Law is given so far by Bigelow in his History of Procedure in England from' the Norman Conquest ; The Norman Period 1066-1204 (1880) ; and by Brunner (Eutstehung der Schwurgerichte, 1872). Useful notices are found in the Bibliotheca Legiim Anglioe, Part II., containing a general account of the Laws and Law-Writers of England, from the earliest times to the Reign of Edw. III. Compiled by Ed. Brooke, Lond. 1788. Valuable later material is supplied by Cooper in his 'Account of the most important Public Records,' etc., above referred to (2 Vols. 1832). A Summary Survey is given by Blackstone, I. Introd. Sect. 3, which is reproduced with additions and improvements in Stephen's 'New Commentaries,' p. 41 et seq. Digitized by Microsoft® THE ANGLO-NOEMAN LAW. 31 [Dictionaries of iToimau French. — R. Kelham, ITorman Law Dictionary, collected from the Parliament Rolls, etc. , to render more easy the Reading of Ancient Records, Books, Manuscripts, etc. 8vo, 1779. G. Metivier, Dictionnaire Franco-Normand. 8vo, Jena 1870. [MedisBval Latin Terms, etc. — Sir H. Spelman, Glossarium Archaio- logieum, continens Latino - tarbara, Peregrina, Obsoleta et Novatic Significationis Vocabnla, etc. 3 Ed. Fol. 1687. See also for Du Cange, etc., the Note at p. 204 of the Outlines of Jurisprudence. — Te.] Digitized by Microsoft® THE LAW OF ENGLAND FEOM THE FOUETEENTH CENTUEY TO BLACKSTONE, 1327-1765. A. THE MODERN STATUTES. Statutes. — The series of the modern English Statutes begins at a time when the principles of the English system of Eight regarding the constitutional establish- ment of the Laws, were not yet fully formed. By refer- ence to this fact the Statutes are divided into the Statuia Vetera and the Statuta -nova. The boundary line between them is formed by the accession of Edward IIL (1327), on the assumption that from this date the modern conception of the Statute was essentially established. This assumption is not quite correct as a matter of fact, for the parliamentary constitution was already established in its main features under Edward I., while the Eights of Parliament in regard to legislation were not expressly recognised till after Edward III. On the other hand, there emerges after the time of Edward III. a distinct separation of Statutes and Ordinances resting on the fact that the decrees of Parliament, which were meant to be of permanent validity, were received into the officially recorded Statute Bolls. Where a Eecord was not em- Digitized by Microsoft® FROM THE FOURTEENTH CENTURY TO BLACKSTONE. 33 bodied in the Statute EoUs, a decision was called an Ordinance in the special sense. As a matter of fact, the term ' Ordinance ' is uncertain and unsettled, some regarding it as an imperfect Statute, and others as a temporary Law. The correct view seems to be that the relation between Law and Ordinance was from the outset concurrent. From 4 Hen. VIL (1485-1509), the language of the Law became again exclusively English. The Statutes of the Eealm from this period are completed by the addition of those of the time of the Commonwealth as contained in the Acts and Ordinances during the Usurpation, from 1640 to 1656, Sy Henry Scohell, London 1650,/o;. The transactions of the Privy Council, which have been already referred to, have been edited by Sir Harris Nicolas as Proceedings and Ordinances of the Privy Council of England, commencing 10 Ric. TI. (1386) wealth r 1649, Jan. 30 11) Edward I. 1272, Nov. 20 36 Charles IH . 1660, May 29 37 Edward II. . 1307, July 8 20 James II. 1686, Feb. 6 4 Edward III. 1326, Jan. 25 61 William and 1 1689, Feb. 13 14 Richard II. 1377, June 22 23 Mary . ) Henry IV. 1399, Sept. 30 14 Anne 1702, March 8 13 Henry V. 1413, March 21 10 George I. . 1714, Aug. 1 13 Henry VI. 1422, Sept. 1 39 George II. 1727, June 11 34 Edward IV. 1461, March 4 23 George III. 1760, Oct. 25 60 Edward V. 1463, April 9 George IV. . 1820, Jan. 29 11 Richard III. . 1483, June 26 8 William IV. . 1830, June 26 7 Heniy VII. . 1485, Aug. 22 24 Victoria 1837,2 June 20 1 Charles II. ascended the throne 29th May 1660, "but the years of his reign are computed from the death of Charles I., January 30, 1649, so that 1660, the year of the Restoration, is styled in the statutes the 12th of Charles 11. (12 Cha. 2, 1660). 2 1837 is reckoned in the statutes as Will. IV. and 1 Vict. ; 1838 is 1 and 2 Vict. So whenever the session of Parliament continues beyond the year of reign current at its opening into the next current year of reign, its statutes are dated by two regnal years. For Editions of Statutes, see p. 34. For law Reports, see pp. 36, 37. Digitized by Microsoft® BIBLIOGEAPHICAL APPENDIX. 63 ABBEEVIATIONS USED IN LAW KEPOB.TS AND TEXT-BOOKS. A. (a.), B. (b.) A., An., Anon. Ata. Ca. Eq. A. C. App. Cas. B. or B. 0. B. C. K. B. R. Banc. Slip. C. Cod. C. B. C. C. C. C. A. C. C. R. C. L. R. C. P. Ca. C. L. Ca. temp. Cam. Scacc. Ch. Ca. Oh. R. Ch. Pre. Co. Co. P. C. D. Dig. B. E. & A. Eq. Cas. Abr. Eq. Hep. F. Ff. Gl. H. Hil. H. L. H. P. C. I. R. C. L. InF. InPr. 1, 2. Inst. I. Ctus. Jur. K. B. L. J. L. Mag. L. Rev. L. T. Law Rec. L. R. Law Rep. Ad. &Eq. Law Rep. C. C. Law Rep. Ch. LawEep. C. P. LawRep.H.L. LawEep.P.C.f-J,, Law Rep. P. Leg. Int. Leg. O. A, front, B. back of a leaf. Anonymous, (Abridgment of Cases in \ Equity. Appeal Court, Chancery. ( Appeal Cases, Law Re- ( ports. Common Bench. Bail Court Reports. King's Bench Reports. Upper Bench. (Coitus or Codex Juris \ avilis. Common Bench Reports. Chancery or Crown Cases. County Courts Appeal. Crown Cases Reserved. Common Law Reports. Common Pleas. Cases in Crown Law. Case in time of. Exchequer Chamber. , (Cases in Chancery (Ch. = \ Choice). (Reports in Chancery. Pre- l cedents do. Coke's Reports. Coke's Pleas of the Crown. Digest or Pandects. fEaster. Eccles. and Ad- t miralty Reports. Equity Cases Abridged. Equity Reports. Consuetudines Feudorum. Pandectse Juris Civilis. (Glossa. A Gloss. Inter- 1 pretation. Hilary Term. House of Lords. Hales' Pleas of the Crown. Urish Reports, Common t Law Series. Injme. In prindpio. (Justinian's Institutes, \ Lib. i. tit. 2. sec. 3. 1, 2. Coke's Institutes. Jui-isconsultns. Jurist Reports. King's Bench. (Law Journal. Law Maga- 1 zine. . jLaw Review. Law Times. \ Law Recorder. Lavv^ Reports. , (Admiralty and Ecclesiasti- i cal Reports. Crown Cases Reserved. Chancery Appeal Cases. Common Pleas Gases. (English and Irish Appeal ( Cases, House of Lords, ?Privy Council Appeal Probate and Divorce Cases. ;. \ Legal Intelligence. > Observer. Legal Lib. Ass. Lib. Feudo. (Liber Assisarum, Year ( Book, pt. 5. (Liber Feudorum (at end of \ Corpus J. C). Lib. Int. Liber Intrationum. Lib. Plac. Liber Placitandi. Lib. Reg. Register Book. Lit. Littleton's Reports C. P. Long Quinto. Year Book, pt. 10, K. B. M. Mich. Michaelmas Term. Tur^A r<« (Modern Cases in Law and Mod. ca. -^ flquity. Mod. Int. Modus Intrandi. Mod. Rep. Modem Repoi-ts K. B. N. C. Notes of Cases. N. R. Not Reported. N. S. New Series, N. Nov. Novella (Juris Civilis). No. N. Novse Narrationes. N. P. C. Nisi Prius Cases. Ord. Ch. Orders in Chancery. P. C. Pleas of the Crown. P. C, Act. Probate Court Act. P. D. Probate Division. P. Pas. Easter Term. P., p., PI. pla. Placita. ■D T> n V (Practical Register in Com- if. K. C. f . -J j^Qn Pleas. Pr. Ch. Precedents in Chancery. Pr. Reg. Ch. JP^'^^tical Registry in Chan- Q. Quorum. (Queen's Bench Reports, 1 N. S. (Queen's Bench Division, ( L. R. N. S. Quo Warranto. Year Book, 5 Hen. V. Resolved . Repealed. Reading Statute Law. Coke's Reports. Rep. (Reports in Chancery. Re- l ports temp. Queen Anno. Roll. (RoUe's Reports. RoUe's ( Abridgment. Rymer's Fcedera. §. Section. Upper Bench. Same Case. Same Point or Principle. (Scaccaria Curia — Court of \ Exchequer. Semble (Fr.), Seems. State Trials. (Teste Rogo— Term Reports t K. B. Q. B. Q. B. D. Q. War. Quinti Quinto. R. R. S. L. Rep. (1.2, etc.). Rep. Ch, ■" Q. A. Roll. R. Abr. Ry. F. S., Sec, S. B. S. C. S. C. C Ca. S. P. Scac. Sem. St. Tri. T. R. T. E. R., T. R. E. Tempore Edwardi Regis. Trin. U. K. Vet. Entr. W. 1. W. 2. W.N. Y. B. W. R. Trinity Term. United Kingdom. Old Entries. Westminster Statutes. (Weekly Notes. Weekly Re- { porter. Year Book. Digitized by Microsoft® MORRISON AND GIBE, EDINBURGH, PRJNTEKS TO HER MAJESTY'S STATIONERY OFFICE, Digitized by Microsoft® T. and T. Clark's Publications. BY THE SAME TRANSLATOR. In crown 8vo, price 6s., OUTLINES OF THE SCIENCE OF JURISPRUDENCE. AN INTRODUCTION TO THE STST?EMATIO STUDY OP LAW. SEtanslateU anU fiStifteti from tl)e Sutfsttc ffincgclojj^tiias OF PUCHTA, rPJEDLANDEE, FALCK, and AHEENS. 'Paehta is universally recognised as one of the greatest exponents of the modern scientific jurisprudence, and he takes rank only next to Savigny himself as a representative of the historical school. Indeed, the more vital pbilosophical culture of Puehta, and the wider range of liis juristic teaching, as well as his mature art and carefulness in detail, make his exposition a safer and easier guide for the young student than he would find in the bold originality and enterprise of "the greatest of modern jurists."' — From Translator's Preface. ' Thank you very much for the " Outlines," which ought to be useful, and which I shall have much pleasure in recommeudiner. The translator has a wonderful talent for rendering the foreign idea in English of the best class. With "Puehta" he has been extraordinarily successtul.' — Professor James Mt;iEHEAD, LL.D., University of Edinburgh. * We welcome these excellent translations and selections of Mr. Kastie. No one can read a dozen pages without feeling satisfied that the work could not have been in better hands. They are prefaced by a most intelligent and instructive Introduction, and those who have hitherto known little more than the names of Ahrens and Fulck and Prif dlauder will doubtless be glad of this opportunity of obtaining in such small compass the cream of their thought.' — Scottish News. ' Thesp treatises are of recognised authority in Germany, and, taken together as they are given here, they cannot but serve to stimulate original reidectiou upon their subject by presenting it in the varied light shed upon it by independent thinkers, and thus serve the best purpose of a text-book. The work of translation has been exceedingly well done. Mr. Hastie's pre- face is an able plea for a more thorough application of scientific methods to the study of jurisprudence.' — Scotsman. * Mr. Hastie has conferred a benefit not merely on students of law in ti-ans- lating and editing this work, but on others as well. His preface is masterly, and his criticism of Austin and other jurists of the modern English school is most stringent and telling. He also sets forth the problem in a way which makes it intelligible to the minds of others than lawyers. The treatises which he has translated are not only able as bearing on jurisprudence, but we have found them exceedingly suggestive in their bearing on problems in philosophy and theology. Prom the pen of Mr. Hastie we have had transla- tions of many works from the German in various departments of science, and the present work is fitted to be exceedingly ■aseivX.''— Aberdeen Free Press. ' We are indebted to Mr. Hastie for good work done in a field of great extent, but which has hitherto proved so little attractive that even the works of Savigny have only been partially translated.' — Load Quarterly Review. [Continued on next page. Digitized by Microsoft® T. and T. Cla/rk's Publications. OUTLINES OF THE SCIENCE OF JURISPRUDENCE-continued. 'Mr. Hastie is obviously an admirer of the German as opposed to the English school, but his selection of such diverse authors prevents any narrowness arising from the study of the book, and he has certainly chosen distinguished examples of Continental writers on jurisprudence. The transla- tion is well done, and the occasional explanatory footnotes are clear and succinct.' — Aberdeen Jowmal. ' This volume ought to be welcomed by the earnest students of juris- prudence in this country. It should be acceptable to such persons, as' it presents able expositions of the fundamental principles of juridical science from the pens of several of the most distinguished writers connected with the German school of jurisprudence. ... It must be added that Mr. Hastie has executed the difficult task of translation, on the whole, with conspicuous ability, and has revealed extensive knowledge, not only of the sometimes ponderous idioms and constructions of the writers, but also of the subject they treat. His version reads like an original composition; his preface is exceedingly valuable ; he enriches the work with numerous notes that will be of material assistance in the study of the text.' — Scottish Leader. '■ We had occasion some time ago to notice favourably Mr. Hastie's excellent translation of Kant's "Philosophy of Law," an epoch-making book in the history of Continental jurisprudence. He has now followed this np by a companion volume, entitled "Outlines of the Science of Jurisprudence," and made up of translations from the works of the chief German sciontilic jurists since the time of Kant. These two books are likely to exercise a considerable influence on the study of jurisprudence in England. Our jm-is- prudence, like our law, is insular, and differs fundamentally from that which finds favour on the Continent. The merit of these two translations is that they enlarge the student's horizon by putting before him the Continental system, and enabling him to form an estimate of its merits, without depend- ing, as hitherto, almost entirely on hostile expositions of its tenets. ... It contains translations from the works of such eminent jurists as Puchta, Falck, Friedlander, and Ahrens, to which is prefixed a very valuable preface by the translator, in which he reviews the conditions of the science at home and on the Continent, and the inadequacy of the notions prevailing in England. Every English student of jurisprudence ought to read this preface carefully, for it is calculated to exercise a profound influence in enlarging and modify- ing his views.' — Lite/ra/ry World. ' A translator of rare competence, Mr. Hastie is also so indefatigable as appai'ently to have determined not to rest till he has turned the fertilizing stream of German thought upon every field of philosophical inquiry which his countrymen have been cultivating with modest means and but moderate success. . . . One may have a less ardent belief than the translator in the theoretic validity or practical virtue of German Natur-recht, and yet give a wainn welcome to this well-considered effort to broaden the intellectual view of students reared upon little more than Austin's Lectures. The editorial work of annotation— designed to bring the text into relation vrith the litera- ture accesible to English students — is done throughout with intelligence and also impartiality; nor should the fluent argumentation of the translator's preface fail of recognition.' — Mind. ' We can heartily congratulate Mr. Hastie on his success in his translation. His style is clear and pointed, and his equivalents for the compendious German legal terms are well chosen and adequate. . . . We are quite at one with Mr. Hastie in thinking that this defective training and theory have seriously impeded the progress of jm-isprudence in England. . . . Mr. Hastie has undoubtedly done good service to the study of the law by the production of this book.' — Journal of Jurisprvdentx. Digitized by Microsoft® T. and T. Clark's Publications. KANT'S PHILOSOPHY OF LAW. * Recently published, in crown 8vo, price 5s., THE PHILOSOPHY OF LAW. AN EXPOSITION OF THE FUNDAMENTAL PEINOIPLES OF JUBISPRtTDENOB AS THE SCIENCE OF RIGHT. By IMMANUEL KANT. TRANSLATED FROM THE GERMAN BY W. HASTIE, B.D. 'I have read the Preface with great interest and entire concurrence. I anticipate the best results from turning the thoughts of our young men back to the fountainhead of all sound speculation since the French Revolution. * — Professor Lobimek, LL.D., University of Edinburgh. ' I have examined one or two important passages, and think it an excellent translation. I shall have much pleasure in recommending it to my Students.' — Professor Caird, LL.D., Glasgow. ' The book will be helpful to us in Philosophy Classes, specially Ethical, as well as to Law Students.' — Professor Galderwood, LL.D., University of Edinburgh. 'I do not see how the translation could well be better.'— J. Hotchison Stirling, LL.D. 'Bellissima ed opportuna traduzione che fara conosoere all'Inghilten-a maggioramente il piu potente pensatore della Germania.' — Professor Caele, Professor of the Philosophy of Law in the University of Turin. ' Treffliche Uebersetzung.'— Dr. J. Von Holtzendokfp, University of Munich. ' A valuable translation of Kant's Philosophy of Law.'— Professor Diodato LioY, University of Naples. 'An excellent translation of this great work in its complete form . . . with an appreciative preface.'— Journa? of Jurisprudence. ' Mr. Hastie has done a valuable service to the study of jurisprudence by the production of this work. His translation is admirably done, and his intro- ductory chapter gives all the information necessaa-y to enable a student to approach the main body of the work with sympathy and intelligence. The work supplies a defect hitherto regretted in the literature of jurisprudence in this country.' — Scotsman. ..„ . [Continued on next page. Digitized by Microsoft® T. and T. Clark's Fublications. THE PHILOSOPHY OF LAW-continued. • ' On the whole, taking into account the intelligible and admirable trans- lation, the clear and scholarly preface, the high opinion of Kant, and tlio importance of the work, particularly in the present day, we heartily recom- mend the book to the thoughtful public as well as to the student of law.' — Glasgow Serald. *]Vfr. Hastie has dune his work in a very satisfactory manner.' — Academy. ' Mr. Hastie has given us here a really good and competent translation of Kant's "Philosophy of Law," a treatise of great interest, not only to those who seek a knowledge of the ground and bearing of law, but even more to students of philosophy. . . . The translator's preface is a bit of good work- manship, and sets vigorously forth in brief compass the scope, meaning, and influence of Kant's "Philosophy of Law," and its relation to Kant's philosophy in general. To us it shows that Mr. Hastie is capable of more original work than translation, and he ought to do that work. This preface proves that he has a deep insiglit into the organic movement of thought, and is competent to trace its progress from age to age. This bit of work is com- petently done.' — Aberdeen Free Press. ' By his rendering of the Philosophy of Law, the Rev. "W. Hastie, B.D., has deserved well, for he has succeeded in making Kant intelligible in English, and it would not be easy to find tougher work for a translator to do. The treatise, too, is one that will well repay the attention of English jurists by n*ason of its suggestiveness on many most important points.' — Literary World. 'Kant in this work comes close to the "business and bosoms" of men, and is both clear and interesting.' — Ifew York Evangelist. ' We commend this treatise to persons infected with the later socialism of the German universities. Kant's doctrine of rights will prove a wholesome )-egimen for minds enfeebled with the socialistic infection.' — N'ew York Independent. 'We can strongly commend the book to the attention of all who are interested in the subject.' — The Englishman, Calcutta. In the Press and to be published soon, KANT'S PRINCIPLES OF POLITICS. Translated and Edited with an Introduction. Edinburgh : T. & T. CLARK, 38 George Street. 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