266 HISTORY OF LAW 



evidently furnished the material in the light of which the English 

 law was expounded by the author in his treatise, and they serve 

 to characterize Bracton as in a proper sense the first exponent of 

 a system of law founded upon judicial decisions and the records of 

 courts as distinct from the nature and form of the peculiar writs by 

 which actions in the English courts were instituted. From the time 

 of Edward I to the present the material resorted to by judges, 

 lawyers, and students consists of decisions in particular cases, pre- 

 served first in the Year-Books and subsequently in the various series 

 of English reports, and later made the subject of exposition by text- 

 writers. The effort of Bracton to introduce a scientific system of 

 general law by following civil law exposition, if there was any such 

 effort, was a complete failure; and after his time judges, lawyers, 

 authors, and students resorted to judicial decisions as found in the 

 reports, and collected by Fitzherbert, Brooke, and other digesters 

 under heads having no reference whatever to civil law arrangement, 

 but adapted strictly to the subjects under which the distinctively 

 English law naturally arranged itself. 



Blackstone's arrangement of the law under four headings, Rights 

 of Persons, Rights of Things, Private Wrongs, and Public Wrongs, is 

 notoriously unscientific, but it is based on civil law notions. The 

 fact is that the classification of the Corpus Juris Civilis was not the 

 result of any scientific conceptions, but was founded on custom, 

 which represented an effort to reach an arrangement intelligible and 

 convenient. Our present classification of the common law has been 

 worked out in the same way. 



For the present discussion it is immaterial to what extent judges 

 and authors resorted to the civil law after Bracton 's time to discover 

 Subsequent principles which might be applied in the decision of 

 Resort to cases not covered by English procedure. That such re- 

 Civil Law. gor j. wag k^ especially in equity and admiralty courts, 

 may be fully conceded. But this has little bearing on the proposition 

 that the common law as a scientific system of jurisprudence is dis- 

 tinctively English and does not owe its form or substance to any 

 learning derived from civil law sources. 



The effort to make use of the civil law in illustrating and expound- 

 ing the common law is apparent in both English and American 

 Citation of treatises on branches of the law. Blackstone not infre- 

 inText- W Quently refers to civil law doctrines, and Kent and 

 books. Story sometimes make such references at considerable 



length. But the practice has largely fallen into disuse, for the 

 evident reason that the decisions of the English and American 

 courts furnish better illustrations of the principles which have been 

 and will be applied in the decision of cases than the Corpus Juris 

 of Justinian or the voluminous expositions of the civil law to be 



