Short Studies in the Early Common Law.
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SHORT STUDIES IN THE EARLY COMMON LAW. I. By Prof. William G. Hammond. I. PREFATORY. WHEN the writer first took an interest in the study of early English law, it . was hardly safe for a practising lawyer to own that he spent much time on authorities older than Blackstone. To acknowledge the reading of the Year Books would stamp him as recreant to the real work of the profession, and amusing himself only with its obsolete and therefore useless parts. The legal peri odicals of that day had no place for the re sults of such vagaries. Even if the " Green Bag" had then existed, with the same noble prospectus as now, admission would have been difficult. That half of its broad double portals marked " useless " might have swung open at once; but the other, intended only for the "entertaining," would surely have "grated hoarse thunder " first, lest its read ers should do so afterward! In the years since that remote pe riod there has been a great change. Many of the best minds of the profession are oc cupied in studying the history of the Com mon Law. Those who have done so most thoroughly, know best its practical value. Its literature has largely increased. Twenty years ago the student whose abnormal tastes made him inquire for Reeve's History must wait months before a second-hand copy of the dingy five volumes, could be found on the upper shelves; now there are several American reprints of it,— unfortunately all with Mr. Finlason's notes. The legal jour nals teem with historical essays of greater or less value. Best of all, the manuscript treasures of England are becoming accessi ble to us, as in Mr. Maitland's excellent edition of Bracton's Note Book. Still, in the great body of the profession the improve ment is less felt than it should be. The 34
busy lawyer and the inexperienced student alike are almost unaffected by it. To all arguments in favor of historical study their joint answer is that they have no time for it. The one has too many conflicting cases to master before his next argument in the Court of Appeals; the other has too much trouble in committing to memory the differ ence between sections 1199 and 1199 a of his text-book, and in satisfying himself which section the examiners are most likely to fol low. Overtasked as both are with conflicts of the day, how can they waste time on opinions held in the Long Quint, 5 Edw. IV.? To such a question it is useless to reply with the most elaborate and convincing statement of the true value of the historical method, — though it were one that would have carried conviction to Austin or Thibaut! Only the student who has himself tested the value of these studies upon prac tical questions of modern law, and has seen how large a portion of these modern dissen sions vanish when the primitive doctrine is distinctly stated can, answer such objections. The dissensions have arisen because some judge in the interval has overlooked the prin ciple or made a false application of it. Thus he has not changed the law, for his decision is not law (1 Bl. Comm. 70), but he has started a doubt that would disappear at once if his successors went back to the early law. Sometimes it is necessary to go back very far before the first fallacy is reached; as in "the gift made by the law to the husband of the wife's property," which will be the first illustration. But if a few attempts to trace the common law back to its primi tive form are not always convincing, they may entertain readers and encourage them to follow the same method with more success.
