HISTORY AND NATURE OF LAWS. 



he may to this day in Scotland he could only 

 put a new vassal in his own place, as an imme- 

 diate dependent of the crown. There is a similar 

 law in the Scotch statutes of Robert the Bruce, but 

 it is doubtful whether it was ever enforced. The 

 disputes with the church were also not without 

 service. The attempts of the ecclesiastics to urge 

 the claims of the civil and canon law, caused the 

 common lawyers to resist their encroachment with 

 true professional hatred. It was in the universities 

 that the clergy had their chief influence ; and the 

 students of the common law formed themselves 

 into rival institutions the Inns of Court. Then 

 there was in the boroughs a separate interest, 

 possessed of an influence always increasing. The 

 tendency of all these circumstances seems to have 

 been to lead to a gradual return to Saxon freedom, 

 and a fixing of the common law in conformity with 

 the long-cherished feelings of the English people. 

 The repositories of the common law are the 

 treatises of eminent lawyers and the reports of 

 decisions. Of the former, there are several of the 

 thirteenth and fourteenth centuries Glanvil, Brae- 

 ton, Hengham, and the book called Fleta, by an 

 unknown author, Thornton, and Britton. Lyttle- 

 ton's treatise on Tenures, the work of the more 

 matured system of the close of the fifteenth cen- 

 tury, was long the text-book in the practice of the 

 feudal law. It was in the form of a comment on 

 this work that Chief-justice Coke issued in 1628 

 the vast treasury of legal learning known as 

 * Coke upon Lyttleton.' The next great name is 

 Blackstone, a man who wrote a book remarkable 

 for perspicuity, but with several defects, of which 

 the chief are unphilosophical arrangement, and 

 eulogy of bad as well as good parts of English 

 law ; nor is his reasoning always accurate, as 

 was shewn by Bentham in his essay on Govern- 

 ment With all its defects, Blackstone's work has 

 not been superseded by any better book, unless it 

 be the Commentaries of the American lawyer 

 Kent, which, of course, contain much that is only 

 applicable to the United States. The respect of 

 English lawyers for whatever is ancient in the 

 common law, is singularly apparent in the majority 

 of law-books. If any great authority, such as 

 Coke or Blackstone, has treated of a particular 

 subject, whoever afterwards writes upon it seems 

 to be held bound to incorporate all that he has 

 said, not only in spirit but in words. Of the 

 reports of cases, there is now a vast collection. 

 From the time of Edward I. to that of Henry VIII. 

 they were annually collected by officers appointed 

 for the purpose, and were called year-books. 

 They were latterly published by private reporters, 

 and are now superintended by a council of lawyers 

 chosen by the Inns of Court and the Society of 

 Solicitors. As they are all precedents in succeed- 

 ing cases, and therefore the source to which the 

 public look for the interpretation of the laws they 

 must obey, it may be questioned whether they 

 should not be officially recorded by persons 

 responsible for the accuracy of their reports, as is 

 the case to a certain extent in America. 



Equity Law. 



This second great division of English law was 

 originally a system by which relief was given in 

 cases where a strict interpretation of the common 

 law would have produced injustice. It could 

 look to the influence of accident, error, and fraud 



when common law could not. A deed, for in- 

 j stance, was lost. The common-law courts could 

 I hear nothing about what might have been its con- 

 tents, and as the deed could not be found, the party 

 j must suffer. Here the court of equity came to his 

 i relief, by compelling a ' discovery' of the terms of 

 i the agreement. When a trustee was put in pos- 

 session, common law could not look at him in any 

 other light but as holding for his own behoof ; 

 but equity compelled him to do his duty to his 

 employers. Where an obligation was to pay, 

 common law could exact performance ; but if it 

 was to perform any other act, the assistance of 

 equity was generally necessary to enforce it 

 Again, the courts of law might give a remedy for 

 a mischief, but they could not interfere to prevent 

 it. This necessary branch of legal administra- 

 tion came likewise within the jurisdiction of the 

 judge in equity, who, on cause shewn, could issue 

 his 'injunction.' 



The existence of equity, which in the technical 

 sense attached to it is peculiar to England, 

 though a similar distinction existed at an early 

 stage of Roman law, is a singular monument of 

 the imperfection of common law. The origin of 

 this system is as obscure as that of the common 

 law, though of more modern date. The earlier 

 law-books do not mention it, and it was probably 

 long in operation as a sort of exception to the 

 ordinary course of law, before lawyers would 

 acknowledge it as a system. It originated in 

 persons who had suffered manifest injustice, which 

 the ordinary courts could not remedy, applying for 

 redress to the sovereign in person. The king's 

 conscience-keeper, or chaplain, became referee on 

 these occasions, and what he did he sealed, by 

 way of testimony of the royal authority, with 

 the king's seal. Hence the origin of the lord 

 chancellor with his great seal, whose office, in 

 some form, has been traced so far back as the 

 days of Edward the Confessor. In early times, 

 the chancellors were ecclesiastics, and they thus 

 were in the habit of adjusting their equity, and 

 the form in which they administered it, to the 

 civil and canon law. Whatever may have been the 

 origin of equity, it became at last a fixed system of 

 law. It is a popular mistake that a judge in equity 

 gives his decision according to what is called ' the 

 general principles of equity and justice,' without 

 reference to strict rules. He is bound down by 

 precedents, and there are many acts of parliament 

 which regulate his proceedings ; so that in reality 

 equity has become a department of the general 

 system of law. It is a department, however, in 

 which recent legislative effort has been steadily, 

 though not as yet very successfully, directed to 

 the amalgamation of the two systems ; the law of 

 Scotland, in which they never were separated, 

 being in this, as in other instances, the real, though 

 seldom the acknowledged model of imitation. 



Statute Law. 



The third branch of the law consists of statutes, 

 or acts of parliament. The constitution of the legis- 

 lature by which they are passed does not belong 

 to the present subject ; it need only be observed, 

 that to be law, every word of an act requires to have 

 the consent of the three branches of the legis- 

 lature Sovereign, Lords, and Commons. In very 

 early times, acts seem to have been petitions by 

 the parliament acceded to by the sovereign. The 



