BRACTON AND HIS RELATION TO THE ROMAN CIVIL LAW. I By W. W. Edwards. AMONG the earliest writers on the Com mon Law of England, and one of great authority, was Bracton, whose treatise "de Legibus et Consuetudinibus Anglia" is the subject of the present " screed." Henry de Bracton — or de Bretton, as he was sometimes called — was one of the Eng lish Justices Itinerant in the reign of King Henry III., and wrote about the year 1250. He was a doctor of the University of Ox ford, where he took the degree of J. U. D.; and although he wrote in " Middle Latin," his style is clear and even elegant, and his manner of giving definitions of law terms and reasons for laws bears a striking resem blance to the writers of the Pandects, in their definitions and reasons. In their zeal to prove an English origin for the common law, a very few writers have been disposed to deny the authority of Bracton; but they have wholly failed to prove the grounds of their dissent, or give any good reasons for their opinion, while nearly all subsequent judges and writers have adopted his exposi tions of the law without qualification or doubt; and no one at this day can doubt but that the law as laid down by Bracton was the then accepted law of England. Bracton antedated all the Reporters that are known to us. The Year Books were not then written. He antedated all the writers and commentators on the common law, whose works are known to us, except Glant'ille, and the "Minor of Justices." Glanville wrote his " de Legibus " in the preceding reign, and only a few years prior to Bracton; but Glanville's treatise con cerns the various kinds of writs and the courts, — in other words, was a work on jurisdiction and practice, and not a trea tise on the system of law administered by the courts, any comments on the legal prin ciples being rather incidental than other-
wise. The same may be said about the "Mirror of Justices; " thus Bracton becomes the earliest writer who ever compiled the general body of the common law into a system. Whence, then, was that system of laws derived? Where and when did they originate? Were they to any extent de rived from the Roman civil law, and the feudal law of Europe, or were they an underived and indigenous body of laws, grown up out of Acts of Parliament, councils, and the customs and practice of the courts "time out of mind "? This is not by any means a new question. A manifest reluc tance has been displayed by Coke, Blackstone, and a few other writers on the common law of England, to concede that the common law was derived from the Roman civil law, or that it even borrowed any material por tion from it. The continental civilians, on the other hand, always claimed that the common law judges and lawyers often quoted the civil law as law, but did not cite it. They seemed to take pride in the indigenous, rather than the exotic origin of their law. Has any one ever given a clear and satisfactory ac count of the rise and growth of the common law? Lord Coke, in the preface to his Eighth and Ninth Reports, attempts to give a short history of the rise of the common law; but the impartial reader must confess that this account is meagre, obscure, and unsatisfac tory, and unsupported by facts. It falls far short of establishing the existence of an in digenous body of laws by which a common wealth could be governed. At an early period in the history of the common law the English were a barbarous people, and land and cattle composed their chief wealth. Commerce and manufactures and the arts had not yet been transplanted into England to any great extent, and hence we would expect to find the laws chiefly concern per
