Page images
[ocr errors][merged small]

has been written on the subject by my predecessors in the field, though this possibly may lighten the labours of my successors.

The question is a very difficult one for three reasons. As to many of the critical periods in the growth of the English law, especially the centuries immediately following the Saxon invasion and the Norman Conquest, we have but slight evidence as to even the nature of our institutions and laws. In those periods on which we have more information, the growth of the law by judicial decisions is frequently influenced through personal, and as it were underground, channels, which leave but scanty traces of their existence to subsequent students. Lord Holt's borrowings from the Law of Rome are on the surface, but what can we say of the methods of his forerunners who made and moulded the Common Law of England? And thirdly, some of the principal sources of knowledge on the history of English law are still of such an inaccessible nature as to discourage and repel any but students most patient and prodigal in time. The Year-Books are still enveloped in the darkness in which their original editions enshroud them, though I learn with pleasure that there is prospect of a 'satisfactory edition of these treasure-houses of English Law, for which Mr Pike's recent volume affords an admirable pattern.

Part of the chapter on Bracton, in which I claim to have accomplished at least some original work, though much remains to be done in the same field), has already appeared, under a slightly altered form, as a separate article in the Law Quarterly Review for October, 1885. In that article I have criticized that wonderful production, the edition of Bracton by Sir T. Twiss in the Rolls Series, more freely than it was possible to do in this Essay. John Selden must have bad a prophet's pen when he wrote that Bracton has been “ basely handled by his editors.” But on this edition, or he foundation of its text, the corrupt edition by Tottell, the


[blocks in formation]
[ocr errors]

ordinary English student, who cannot collate all the Bracton MSS., has still to rely.

To these causes we perhaps owe it that the most startling divergences of opinion on particular parts of the subject exist. One writer ascribes everything to Roman influence; another finds Roman materials almost entirely wanting in our law.

Hic liber est, in quo quaerit sua dogmata quisque,

Invenit et pariter dogmata quisque sua. That patriotic maxim “An Englishman's house is his castle" is traced back to Justinian's Code, and the Twelve Tables of the Roman Law are discovered to be “plainly referred to” in the Sermon on the Mount.

But the interest of the subject to the student of our law is at least equal to its difficulty, and I only hope that I may have lessened in some degree the difficulties, for those who feel the interest. For the rest, the words of Sir Henry Spelman are still true and to the point : “I wish some worthy lawyer would read the law diligently, and show the several heads from which these laws of ours are taken. They beyond the seas are not only diligent, but very curious in this kind; but we are all for profit and Lucrando pane, taking what we find at market, without enquiring whence it comes.”

T. E. S.

« PreviousContinue »