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OF A GENERAL ABRIDGMENT AND DIGEST OF AMERICAN LAW, WITH OCCASIONAL NOTES AND COMMENTS, BY NATHAN DANE, LL. D., COUNSELLOR AT LAW.
(First published in the North American Review, 1826.]
The utility of abridgments, in all departments of learning, will scarcely be doubted by any person, who is accustomed to due reflection on the subject. The vast extent and intricacy of some branches of knowledge, the minute distinctions and details of others, and the perpetual accumulations of all, present obstacles to a thorough mastery of them, which are not easily overcome by the most powerful genius, or the most retentive memory. Those, who are to learn, must be assisted by steps, by general principles, by succinct elucidation, and by compendious abstracts, before they are able to engage in the task of comprehensive analogies; and those, who are themselves instructed, find that memory is often treacherous, and that the constant demand for knowledge compels them to use many helps, in order to facilitate their recurrence to exact principles, or exact facts. The details of a whole science, at least in our day, are probably beyond the immediate grasp of any single mind, however gigantic. Recollections must be constantly refreshed, and the obscure traces of past acquirements carefully retraced, if we aspire to any thing like a vigorous coinmand of that department of knowledge, to which we are most devoted. Dr. Priestley, whose various scientific, as well as general knowledge, will scarcely be questioned, has somewhere stated, that he made use of many mechanical aids in the course of his own studies, some of which might be thought so humble, as to excite a smile, or even a doubt of the abilities of the author. Indeed, the general auxiliary of most students used to be a common-place book, in which the various readings and accumulations of their learned hours were collected, sometimes with, and sometimes without method. In whatever shape these were preserved, they had the good effect of fixing the impressions of many important truths, and of saving many hours of fruitless research, to regain what was lost from the memory. Before the invention of printing, this labor must have been very great among the learned ; and it has been gradually lessening, only because the press has, in the principal departments of learning, by means of indexes, digests, compends, concordances, dictionaries, and other abridgments, supplied their place, and brought within a reasonable compass the mass of those references, which are most useful to the scholar, the professional gentleman, and the scientific student. It is true, therefore, what of old was said, Qui compendiariam alicujus artis sive scientia viam indicat, is gemino beneficio juvat studiosum ; primum, ut maturius quo tendit pertingat, deinde ut minori labore sumptuque quod sequitur assequatur.
But, whatever may be thought of other cases, it is certain, that in the department of law abridgments are indispensable. Before reports of adjudged cases were published, no other adequate means existed of acquiring the science of jurisprudence, except what were furnished by a faithful attendance upon the courts, and a diligent collection of the substance of their decisions. The early professors of the common law were compelled to resort to commonplace books, and personal reports of cases, falling under their own observation. Many manuscripts of this description are still extant, exhibiting a patient industry, care, and accuracy, worthy of all praise. The labor, indeed, of these venerable jurists almost transcends the belief of students of the present day. They noted every case, in all its points and principles. They abstracted from records, and general treatises, and private manuscripts, often obscure and crabbed, every thing, that could be found to aid them in study, or in practice. They gathered voluminous collections of special pleadings, and unusual writs and judgments, to suit the exigencies of their possible avocations; and thought no labor too great, which brought any solid addition to their knowledge, or any increased facilities to their clients.
The necessity was the more pressing in those days, from the subtilties, and quibbles, and scholastic logic, which characterized every department of learning. The law then dealt with forms, even more than with substances. The slightest variance from the Registrum Brerium, the neglect of any precise technical order, the most insignificant error in words, the smallest mistake in the description of persons or things, nay, the omission of a single letter, was perilous, and brought in its train an abatement of the suit, and sometimes, by consequence, an extinction of the remedy. The strictness observed in England, in the present times, to discourage the use of the writ of right, affords some feeble illustration of this misplaced ingenuity, in hunting up and sustaining objections. The curious refinements, the nice distinctions, the quaint conceits, the arbitrary formularies, and the stiff, unbending roughness of the bar, and bench in those days, made every thing important, from the first rudiment of principle, to the last ramification of practice. There were no public repositories, in which principles or practices could be ascertained by a glance of the eye. They were to be learned from the oral explanations of the ancient sages of the law, or the conversational debates of the judges, or the close lecture-rooms of the benchers, or the dry expositions of the titular readers of the Inns of Court.
When reports began to be published, the labor was not materially diminished. The decisions were not uniformly reported at stated times ; and many cases were not reported at all. The early reports contain no indexes. The Year-Books have not a single line to direct the student to their contents, and leave their bulky and abbreviated text without title or comment, so mixed up in one common mass, that it requires no small share of historical knowledge to ascertain, who, at any given period, speak as judges or as counsel. When tables of contents came subsequently into fashion, they were so incomplete and incorrect, that they were comparatively of little assistance. Ashe's Repertory, or Table to the Year-Books, large as it seems, in two ponderous folios, does nothing more than put one upon inquiry, and condescends not to select a single proposition asserted by the cases. Indeed, the original indexes to the old reporters are alınost useless, and, in some instances, serve only the bad purpose of misleading the inquirer, by holding out hopes, which vanish, when he touches the adjudication.
The practice of keeping common-place books, which was thus begun from absolute necessity by the old lawyers, was afterwards continued from a sense of its convenience. Nor was it generally discontinued by the profession until a late period ; and it is not, perhaps, without some examples, even in the present age. In America, the ante-revolutionary lawyers were in the habit of com
piling manuscript abridgments for their private use, some of which have reached our times. They also lest behind them many notes of adjudications, which are yet to be found in the hands of the curious and the learned. And probably, in most of the states, the practice of preserving short notes of new cases was common among the leaders at the bar, until the legislature provided for the regular publication of reports.
It is to sources like those already adverted to, that we owe the early, and perhaps all the abridgments hitherto made of the common law. What was introduced originally, from the mere scantiness of public materials, in process of time obtained a continued favor, from the unwieldy bulk of adjudications. Lord Coke poured the contents of his common-place book into his Commentary upon Littleton, and his superabundant Reports. Plowden may well be suspected of the same overlearned zeal; and Lord Hale has attested his own unwearied diligence and antiquarian researches, by manuscript collections, which yet surprise us by their variety and comprehensiveness.
The earliest printed abridgment of the law is that of Statham (Nicholas), who was appointed a baron of the exchequer in the eighth year of the reign of Edward the Fourth (1468). It is a very curious book, printed, as it would seem, before title-pages were in use, for it is without any title-page, or imprint, or date; and the only notice we have of the printer is the following brief and modest remark, at the end of a short table of contents : “Per me, R. Pynson.” It has been conjectured from the type, that it was printed at Rouen, by William Le Tailleur, who printed Littleton's Tenures, for Pynson. The latter was bred in the service of Caxton, the first printer with metal types in England, and he succeeded his master in the business. Statham's Abridgment was published between the years 1470 and 1490, and is a remarkable specimen of the typography of the age. It shows, that there has been little substantial improvement in the art, during the three last centuries. The art appears, indeed, to have reached perfection within the first half century after its invention. The copy now before us seems to have formerly belonged to Sir Heneage Finch, afterwards the celebrated Earl of Nottingham. The paper is of a very firm, silky texture, forming a strong contrast to the sleazy linen and cotton of our day ; the ink is of a bright jetty and unfaded black; the type, though small and partly composed of abbreviated characters, has a sharp and distinct face; and the mechanical execution is so exact, that scarcely a letter exhibits a blur, and the surface of every page presents a uniform appearance, putting to shame many of the standard volumes of our times. The work itself contains, under appropriate heads, brief abstracts of the cases in the Year-Books, to the end of the reign of Henry the Sixth, as well as some cases not elsewhere to be found. It has now very little value, except occasionally to verify a quotation, or to gratify the curiosity of a professed antiquary.
The next abridgment, in the order of time, is that of Sir Anthony Fitzherbert, first printed by Pynson about 1516, and afterwards reprinted in 1565 and 1577. The edition of 1565 is far the best, for size of type and general accuracy. Besides many cases not reported at large, it contains an abstract of all the cases in the Year-Books, down to the twenty-first year of the reign of Henry the Seventh. It has always been deemed of very high authority, where the author states cases solely on his own responsibility. The marginal titles and numbers, in the common editions of the Year-Books, refer to the titles and numbers of this abridgment. The learned author died in 1538, leaving behind him the reputation of a very laborious and upright judge.
At the distance of half a century afterwards, followed the Abridgment of Sir Robert Brooke, of which there have been several reprints; but the best is that on royal paper by Tottell, in 1573. It contains the substance of Fitzherbert, together with a collection of the later authorities, some of which are nowhere else extant.
The character of the Abridgments of Fitzherbert and Brooke may be summed up in a few words. They are mere indexes, under general heads, of the principal adjudged cases up to their own times, in which the points are accurately stated, but without any attention to order, or any attempt at classification. As repositories of the old law, they now maintain a very considerable value, and may be consulted with advantage. Whoever examines them (for a thorough perusal of them will be a mere waste of time) will probably feel inclined, when he can, to ascend to the original sources; but if these should not be within his reach, he may rely with confidence, that these learned judges have not indulged themselves in a careless transcription, or a loose statement, of the law. In our own practice we bave frequently found them the safest guides to the old law, and particularly to the contents of the YearBooks. At the times, when these Abridgments were originally