TO SAMUEL M. BURNSIDE, SECRETARY OF THE AMERICAN ANTIQUARIAN SOCIETY.
Monticello, January 9, 1814.
Sir,—I have duly received your favor of the 13th of December, informing me of the institution of the American Antiquarian Society, and expressing its disposition to honor me with an admission into it, and the request of my co-operation in the advancement of its objects. No one can be more sensible of the honor and the favor of these dispositions, and I pray you to have the goodness to testify to them all the gratitude I feel on receiving assurances of them. There has been a time of life when I should have entered into their views with zeal, and with a hope of not being altogether unuseful. But, now more than septuagenary, retired from the active scenes and business of life, I am sensible how little I can contribute to the advancement of the objects of their views; but I shall certainly, and with great pleasure, embrace any occasion which shall occur, of rendering them any services in my power. With these assurances, be so good as to accept for them and for yourself, those of my high respect and consideration.
TO DOCTOR THOMAS COOPER.
Monticello, January 16, 1814.
Dear Sir,—Your favor of November 8th, if it was rightly dated, did not come to hand till December 13th, and being absent on a long journey, it has remained unanswered till now. The copy of your introductory lecture was received and acknowledged in my letter of July 12, 1812, with which I sent you Tracy's first volume on Logic. Your Justinian came safely also, and I have been constantly meaning to acknowledge it, but I wished, at the same time, to say something more. I possessed Theopilus', Vinnius' and Harris' editions, but read over your notes and the addenda et corrifenda, and especially the parallels with the English law, with great satisfaction and edification. Your edition will be very useful to our lawyers, some of whom will need the translation as well as the notes. But what I had wanted to say to you on the subject, was that I much regret that instead of this work, useful as it may be, you had not bestowed the same time and research rather on a translation and notes on Bracton, a work which has never been performed for us, and which I have always considered as one of the greatest desiderata in the law. The laws of England, in their progress from the earliest to the present times, may be likened to the road of a traveller, divided into distinct stages or resting places, at each of which a review is taken of the road passed over so far. The first of these was Bracton's De legibus Angliæ; the second, Coke's Institutes; the third, the Abridgment of the law by Matthew Bacon; and the fourth, Blackstone's Commentaries. Doubtless there were others before Bracton which have not reached us. Alfred, in the preface to his laws, says they were compiled from those of Ina, Offa, and Aethelbert, into which, or rather preceding them, the clergy have interpolated the 20th, 21st, 22d, 23d and 24th chapters of Exodus, so as to place Alfred's preface to what was really his, awkwardly enough in the body of the work. An interpolation the more glaring, as containing laws expressly contradicted by those of Alfred. This pious fraud seems to have been first noted by Howard, in his Contumes Anglo Normandes (188), and the pious judges of England have had no inclination to question it; [of this disposition in these judges, I could give you a curious sample from a note in my common-place book, made while I was a student, but it is too long to be now copied. Perhaps I may give it to you with some future letter.] This digest of Alfred of the laws of the Heptarchy into a single code, common to the whole kingdom, by him first reduced into one, was probably the birth of what is called the common law. He has been styled, "Magnus Juris Anglicani Conditor;" and his code, the Dom-Dec, or doom-book. That which was made afterwards under Edward the Confessor, was but a restoration of Alfred's, with some intervening alterations. And this was the code which the English so often, under the Norman princes, petitioned to have restored to them. But, all records previous to the Magna Charta having been early lost, Bracton's is the first digest of the whole body of law which has come down to us entire. What materials for it existed in his time we know not, except the unauthoritative collections of Lambard & Wilkins, and the treatise of Glanville, tempore H. 2. Bracton's is the more valuable, because being written a very few years after the Magna Charta, which commences what is called the statute law, it gives us the state of the common law in its ultimate form, and exactly at the point of division between the common and statute law. It is a most able work, complete in its matter and luminous in its method.
2. The statutes which introduced changes began now to be preserved; applications of the law to new cases by the courts, began soon after to be reported in the year-books, these to be methodized and abridged by Fitzherbert, Broke, Rolle, and others; individuals continued the business of reporting; particular treatises were written by able men, and all these, by the time of Lord Coke, had formed so large a mass of matter as to call for a new digest, to bring it within reasonable compass. This he undertook in his Institutes, harmonizing all the decisions and opinions which were reconcilable, and rejecting those not so. This work is executed with so much learning and judgment, that I do not recollect that a single position in it has ever been judicially denied. And although the work loses much of its value by its chaotic form, it may still be considered as the fundamental code of the English law.
3. The same processes re-commencing of statutory changes, new divisions, multiplied reports, and special treatises, a new accumulation had formed, calling for new reduction, by the time of Matthew Bacon. His work, therefore, although not pretending to the textual merit of Bracton's, or Coke's, was very acceptable. His alphabetical arrangement, indeed, although better than Coke's jumble, was far inferior to Bracton's. But it was a sound digest of the materials existing on the several alphabetical heads under which he arranged them. His work was not admitted as authority in Westminster Hall; yet it was the manual of every judge and lawyer, and, what better proves its worth, has been its daily growth in the general estimation.
4. A succeeding interval of changes and additions of matter produced Blackstone's Commentaries, the most lucid in arrangement which had yet been written, correct in its matter, classical in style, and rightfully taking its place by the side of the Justinian Institutes. But, like them it was only an elementary book. It did not present all the subjects of the law in all their details. It still left it necessary to recur to the original works of which it was the summary. The great mass of law books from which it was extracted, was still to be consulted on minute investigations. It wanted, therefore, a species of merit which entered deeply into the value of those of Bracton, Coke and Bacon. They had in effect swept the shelves of all the materials preceding them. To give Blackstone, therefore, a full measure of value, another work is still wanting, to-wit: to incorporate with his principles a compend of the particular cases subsequent to Bacon, of which they are the essence. This might be done by printing under his text a digest like Bacon's continued to Blackstone's time. It would enlarge his work, and increase its value peculiarly to us, because just there we break off from the parent stem of the English law, unconcerned in any of its subsequent changes or decisions.
Of the four digests noted, the three last are possessed and understood by every one. But the first, the fountain of them all, remains in its technical Latin, abounding in terms antiquated, obsolete, and unintelligible but to the most learned of the body of lawyers. To give it to us then in English, with a glossary of its old terms, is a work for which I know nobody but yourself possessing the necessary learning and industry. The latter part of it would be furnished to your hand from the glossaries of Wilkins, Lambard, Spelman, Somner in the X. Scriptores, the index of Coke and the law dictionaries. Could not such an undertaking be conveniently associated with your new vocation of giving law lectures? I pray you to think of it.[8] A further operation indeed, would still be desirable. To take up the doctrines of Bracton, separatim et seriatim, to give their history through the periods of Lord Coke and Bacon, down to Blackstone, to show when and how some of them have become extinct, the successive alterations made in others, and their progress to the state in which Blackstone found them. But this might be a separate work, left for your greater leisure or for some future pen.[9]