however, of the text-books hitherto mentioned-more perhaps in the case of the others than in that of Bracton-we may judge that they were almost exclusively intended for practitioners already trained by some amount of oral instruction and attendance in Court or elsewhere". This is obviously the case with the short French Appendix (“Fet assavoir") printed at the end of Fleta, and with the two Latin treatises ("Summa Magna" and "Summa Parva") attributed to Hengham, one of Edward the First's disgraced Justices, who may indeed have been the author of Fleta himself. The scope of the Mirror of Justice, attributed to the reign of Edward II., is undoubtedly wider, though rather by way of suggesting reforms of alleged abuses than by generalising or drawing correct inferences from previous materials 48.

49

Coke is, according to Blackstone, among the last of the authors "whose treatises are cited as authority and are evidence that cases have formerly happened in which such and such points were determined which are now become settled and first principles "." The obscurities, conceits and uusystematic arrangement of this author are well known. Nor would he perhaps, in the present revived study of early English law, be considered so conclusive an authority as he formerly was. On the other hand he is our first writer of any importance who has treated of our law, with a distinct

46 The Scholae of the reign of Henry III. are considered by Selden (ad Fletam c. 8, p. 525) to have been exclusively for Roman law (see however Blackstone, Int. § 1, p. 24). The Inns of Court are dated from about the beginning of the reign of Edward II. But the tradition of each serjeant having his pillar in St Paul's, with his apprentices round him (Reeves, Hist. vol. 2, ch. 12, p. 360), points to an earlier time of students in English law with no common habitat.

47 Above p. 308.

48 See Reeves, Hist. vol. 2, ch. 12, p. 359.

49 Blackstone, Int. § 3, p. 73.

view to the general public, and in a historical as distinguished from a barely practical manner. Thus his book forms a new departure, and he is justly called by his editor, Butler, the "centre of ancient and modern law." Wherever the subject will allow it, he begins his enquiry into the grounds of our law with Glanville, Bracton, Fleta and Britton, whom he continually treats as, together with Littleton, ultimate authorities 51.

He carries on his enquiry through the modifications and alterations in that law, due to the judicial decisions recorded down to his time. Were it not for his writings, says Butler52, we should have to search for the legal learning of ancient times in the voluminous and chaotic compilation of cases contained in the year-books; or in the dry though valuable abridgements of Statham, Fitzherbert, Brooke and Rolle. That is, according to the view of his learned editor, Coke's abstractions and generalisations have superseded, at least in some instances, the extant judicial records upon which they are founded.

Finally, although Coke in several places professes to publish nothing but what "is grounded upon the authorities and reason of our books, rolls of parliament and other judicial records," yet it is obvious that this language may be extended to cover not only "illations upon existing law" but

50 See Coke's Preface to the Commentary on Littleton, under the headings "Wherefore called Institutes " and "wherefore published in English." His labours are "cunabula legis, the cradles of the law," for students in their beginning of their study, ib.

51 Reeves, Hist. vol. 2, ch. 11, p. 282. See also the last sentence of Coke's Prooem to the third part of his Institutes (Pleas of the Crown); and the repeated mention of "our books" in the marginal notes (by Coke) to the first part (Co. Litt.) 11 b. It is, however, possible that in the last instance he may mean the Year-books.

52 Preface to the 13th edition of Coke on Littleton (1 Instt.).

53 End of the Prooem to the 4th part of the Institutes (Jurisdiction of Courts).

"conclusions founded upon notions of general utility," both of which classes of matter are found in Coke and expressly attributed by him to Littleton 55.

Hale's Analysis of the Civil Part of the Law was apparently Institutional in its intention, and is certainly scientific rather than practical in its arrangement. This “tractate” is principally known through the larger work of Blackstone. The general exclusion, by the latter, of text-book writers after Coke, from the list of original authorities, finds certainly one exception in Hale's chief work-the Pleas of the Crown. But the tendency of our courts is undoubtedly to confine that list to those venerable sages of an earlier time in whose authoritative writings the older decisions have been, to quote the words of Blackstone, "digested for general use.” One important function of the modern text-book writer is to select and preserve such portions of these authorities as are adapted to the present state of things; a selection not, however, very easy to make, and therefore leaving recourse to the original authors still available".

Blackstone. A few words may be added here about Blackstone himself, although he belongs rather to the class of modern text-book writers, whose case is considered in the last chapter on this subject.

To Blackstone is specially due the working out of that new arrangement (or new application of an old arrangement) for our English Corpus Juris, which he derived from Hale's Analysis, as Hale had borrowed the main idea from the Institutes of Justinian. That arrangement, under its original form, still appears to me equal in theory to any other, and far superior to all others in convenience. Otherwise Black

54 Austin 30, p. 563.

55 See the interesting note on "Maxim," Co. Litt. 11 a.

56 See, as to Bracton, Spence, Equitable Jurisdiction, Pt. 1, Bk. 2, ch. 3, p. 121 and note e.

stone discharges the functions of a modern text writer indifferently well. He faithfully preserves the rules and general maxims of law which had been cast into that form by older writers, out of matter practically obsolete. He generalises, with a precision and clearness which has scarcely been enough appreciated, from the confused mass of statute, judiciary, and text-book law before him. His great fault is a somewhat servile optimism as to everything established, which was very common in his time. Hence he makes few suggestions of improvement, and those rather by way of reason and explanation (sometimes very absurd) of old rules, than by direct reference to the considerations which obviously prompted the suggestion. But the heaping together of cases, in all their particularity, without an attempt at generalisation, is a fault of many modern text-book writers, from which Blackstone is conspicuously free.

CHAPTER XI.

TEXT-BOOK LAW: ENGLISH CUSTOMARY LAW.

Theory. Believing that our so-called customary law is to a greater extent than the Roman derived from professional sources, I have reversed the order above adopted and spoken of our older prudentes first. In the theory, however, both of ancient and modern authorities, the existence of customary law amongst us is most definitely recognised on the independent ground of national, or at least lay, usage. And this fact has the more importance in regard to jurisprudence, because it is with us that judicial decisions - Austin's medium through which custom becomes law have the most admitted authority.

It is soon seen that the theory in question is not universally true, and a few instances may be cited in which it can be compared with fairly ascertained facts. Among the subjects of common, i. e. general' customary, law enumerated by Hale and Blackstone, many are at first sight referrible to court practice. The rules which would appear to have most connexion with national custom are perhaps those which regulate the descent of landed property. Yet these underwent, as to a large class of estates, a radical change between what we may roughly date as the times

1 See below p. 318 for the distinction of general and particular custom. 2 Hale, Hist. ch. 2, p. 24: Blackstone, Int. § 3, p. 68.