Imagens das páginas
PDF
ePub

sendi gratiâ, cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum, sed perpetuis humeris, sustinendam, excidit, fateor, animus, blandioribusque subridens musis, rigidam hanc minervam, ferreis amplexibus coercendam leni molimine delibari.' To be sure, the discouragements of that day were not inconsiderable—the whole of the law was locked up in barbarous Latin and still more barbarous Norman French. The doctrines of special pleading were obscured by the shades of a dead language, and by the embarrassing subtilties of scholastick refinement. The great body of the law was to be principally extracted from the year books, and the elaborate, though immethodical abridgments of Statham, Fitzherbert, and Brooke. The only guides which could be said to illumine the way, were the brief but profound text of Littleton on Tenures, the authoritative and methodical sketch of Glanville, the comprehensive, exact, and learned treatise of Bracton (whom Sir William Jones has justly characterized as the best of our juridical classicks) and the perspicuous and compact work of Fleta, in which the unknown author follows with steady footsteps the path of his master. If to these we add the old Tenures, the old and the new Natura Brevium, the Register of original writs, the works of Britton and Staundford, the very able dialogues of St. German between a Doctor and Student, the acute and subtle notes of Perkins, and the diffuse but accurate and learned commentaries of Plowden,* we have the bulk of juridical authors, which were to be mastered by the student at the time to which Sir Henry Spelman refers. We do not mean to undervalue the labour which was necessary to accomplish this arduous task; and we well know that what works did not then supply, could be acquired only by the dry practice of a black letter office, and a constant and fatiguing attention upon courts of justice. But adding every thing, which the most strenuous advocate of the ancient law would ask, we may safely pronounce that the labours of a modern student, if he means to attain eminence, must be infinitely greater. To be a sound

* The other reporters of this period, Keilway, Anderson, Moore, &c. were not then published. The Mirror of Justices, though of an earlier time, did not appear until a half century afterwards. There are some few other works of this period, but they were not thought worth a distinct enumeration.

lawyer, he must not merely taste, but drink deep at the ancient fountains of the law. He must acquire an accurate knowledge of the feudal tenures and of the ancient doctrines connected therewith, because they constitute the rudiments of the law of real estates; and yet much of this learning is remote from common use, and lies deep in the dark and uncouth text of the primitive writers. He must be initiated into the mysteries of real actions, which will at once carry him back three centuries, for since the days of queen Elizabeth these actions have gradually sunk into neglect; and unless he thoroughly comprehends them, he can hardly be master of the modern actions of trespass and ejectment, not to speak of our own state, where real actions exist in their vigour and remain the great remedies for deciding titles. If we add to this the necessary learning of personal actions founded on torts or contracts, which in modern times have branched out into an almost endless variety, we shall have some notion of the extent of the labour which is now requisite to the attainment of the first rank in the profession.

This view of the subject may appear appalling to young gentlemen who are just quitting our universities with the intention of devoting their lives to the science of jurisprudence. It ought, however, to be a great consolation to them that the elementary writers are more faithful, more accurate, and more polished, than in former times. The paths may not always be well cleared, nor the prospects interesting; but in almost every direction there will be found learned guides, who cannot fail to diffuse a bright and steady cheerfulness during the most rugged journies.

The superiour advantages in this respect of our own times over the past, will be apparent upon the slightest reflection. If we look back to the termination of the century succeeding the period to which Sir Henry Spelman alluded, we shall find that the student had comparatively few additional elementary works to assist his progress. Lord Hale in his prèface to Rolle's Abridgment, (in 1668) gives us a list of those which were most useful, and he contents himself with adding to those already named by us, Rolle's Abridgment, Lord Coke's Institutes and the intermediate reporters between his own time and Plowden.* Not but that some other elementary

Lord Hale's preface to Rolle is well worth the diligent perusal of students.

works had in the mean time been published; but they were not deemed by him peculiarly useful to students. We have also yet remaining, a letter of Lord Chief Justice Reeve, addressed to his nephew about seventy years later, [9 Geo. 2.] on the study of the law, by which we find that in his opinion, (with which we do not coincide,) Finch's Law, Hale's History of the common Law, and Wood's Institutes, were the most material elementary works that had been added to the old stock during this whole period.* The publication of Blackstone's Commentaries [in 1765] constituted a new epoch in the annals of the common law. Previous to that period the learned author had published his analysis of the laws of England, which exhibited the outline, of the method and principal divisions which the Commentaries were intended to fill up, in pursuance, indeed, of the plan which had been previously sketched by the masterly pen of Lord Hale. Of a work, which has been so long before the publick as Blackstone's Commentaries, it cannot be necessary for us to utter one word of approbation. For luminous method, for profound research, for purity of diction, for comprehensive brevity and pregnancy of matter, for richness in classical allusions and for extent and variety of knowledge of foreign jurisprudence, whether introduced for illustration, or ornament, or instruction, it is not too much to say, that it stands unrivalled in ours and perhaps in every other language. There have not however been wanting of late years attempts to undervalue the importance of these Commentaries. It has been suggested, that in some parts the work is superficial, and in others too general and elementary; that it cannot be safely relied on as authority, and that it teaches the science so imperfectly, that it has almost as great a tendency to mislead as to instruct. These objections seem to us founded upon a total misconception of the design of the work. The author did not undertake to exhibit a full and perfect view of the common law, but merely a summary sketch of its most important doctrines and distinctions. That some errours may be found by a strict scrutiny cannot be denied; but from the vast extent and variety of the materials, such errours were to be expected.

* The letter of Lord Chief Justice Reeve is published in the Collectanea Juridica, vol. i. p. 79.

† The analysis was first published in 1756.

The only wonder is that so much should have been accomplished with so little intermixture of false doctrine and obscure and inaccurate statement. We cannot express our own sentiments better than in the language of that admirable ornament of juridical literature, Sir William Jones. His commentaries are the most correct and beautiful outline, that ever was exhibited of any human science; but they alone will no more form a lawyer, than a general map of the world, how accurately and elegantly soever it may be delineated, will make a geographer. If, indeed, all the titles, which he professed only to sketch in elementary discourses, were filled up with exactness and perspicuity, Englishmen might hope at length to possess a digest of their own laws which would leave but little room for controversy, except in cases depending on their particular circumstances.'-(Jones on Bailments, 3, 4.)

But the most incontestible proof of the excellence of the work is to be found in the striking effects which its publication produced in every department of the common law. By the elegance of its style and the novel dress in which it clothed the elements of law, it immediately attracted universal attention in England. It was soon considered as an indispensable part of the library of every statesman and private gentlemen. It invigorated the ambition of students and relieved them at once from many of the discouragements and difficulties which previously embarrassed every step of their progress. There are lawyers yet living, who can attest the prodigious change, which it once produced in our country. Law was no longer considered a dry and sterile study. It at once became fashionable; and this circumstance combining with the nature of our political institutions, (which make a legal education, if not a prerequisite, at least a very important qualification, for political distinction and publick office,) has contributed in a very high degree to that great increase of the bar, and that ascendency in society, which distinguish the profession, in this, more than in any other country.

It was almost impossible that such a strong excitement should not awaken the ardour of other gentlemen, of juridical learning and leisure, to follow out into its regular details, a design which had been so nobly conceived and executed by the illustrious commentator. Accordingly there has been a larger number of treatises on the leading topicks of the

common law produced within the last half century than in all preceding time. And these treatises are in general distinguished by a scientifick distribution, exact method, propriety of style, and clear exposition of principles and authorities, which is rarely to be found in any of our older juridical essays or dissertations. In fact, the bulk of former elementary works were little more than a collection of decisions under general heads, without any successful attempt to systematize the matter, or subject it to a critical analysis. Among the most striking exceptions to this remark (for some exceptions exist) on the civil side, are the law tracts of Lord Bacon, the profound but imperfect treatises of Lord Chief Baron Gilbert, the ingenious sketch of the Law of Tenures by Sir Martin Wright, and the brief but very exact treatise on Equity attributed to Mr. Ballow; and on the criminal side, the very learned and authoritative works of Lord Hale, the copious digest of Mr. Serjeant Hawkins, and the truly admirable discourses of Sir Michael Foster. We forbear to speak at present of Comyn's Digest, intending hereafter to notice it in another place.

Among the modern works, of which we have been speaking, there are not a few on subjects of the very first importance and of almost daily occurrence in practice, for exact information in which the student would have searched in vain in the abridgments and treatises of former ages. Where, for instance, shall we look for a work, like Mr. Fearne's Essay on Contingent Remainders and Executory Devises? This subject, which constituted one of the most obscure, and must forever remain one of the most intricate titles of the common law, had been already sketched out by the masterly hand of Lord Chief Baron Gilbert, but like all his other writings it was left in a detached and imperfect shape. It was reserved for Mr. Fearne to honour the profession by a treatise so profound and accurate, that it became the guide of the ablest lawyers, yet so luminous in method and explanations that it is level to the capacity of every attentive student. has in fact exhausted the subject; and this chef d'ouvre will forever remain a monument of his skill, acuteness and research. All that the most accomplished lawyer can reasonably hope is to add a commentary of new cases and principles, as they arise, without venturing to touch the sacred fabrick of

He

* See Bacon's abridgment, Guillim's Edition, title Remainder and Reversion.

« AnteriorContinuar »