Kinnane, Charles H.

English

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Volume 36 Issue 3 Article 12 April 1930 A Concise History of the Common Law Charles H. Kinnane University of Wyoming Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Common Law Commons Recommended Citation Charles H. Kinnane, A Concise History of the Common Law, 36 W. Va. L. Rev. (1930). Available at: https://researchrepository.wvu.edu/wvlr/vol36/iss3/12 This Book Review is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. BOOK REVIEWSA CoNcm HISTORY OF THE COmmON LAw.-Theodore Pluck-nett, Rochester, N. Y. Lawyers Cooperative Publishing Co., 1929pp ii, 416.To those interested in the history of English law, ProfessorPlucknett's book will be a welcome addition to the literature onthe subject. Notwithstanding the monumental work of Holds-worth, the smaller work of Pollock and Maitland, the more modestbut valuable works of Jenks, and of M/faitland and Montague inA Sketch of English Legal History, the short Introduction toEnglish Legal History by Potter, the Select Essays on Anglo-American Legal History, and the recent vivid, although perhapsnot historical, Story of Law, by Zane, (I believe Professor Pluck-nett characterized this last as "one of the worst products of themovie age' ')-notwithstanding all of these, there was still room foranother history of English law.Professor Plucknett, however, did not cover the whole field. Theoriginal project was to write a Concise History of the entire Eng-lish law. Instead the book has been restricted quite narrowly tothe common law.As to general professional readers, it is felt that they will prob-ably let this book severely alone. There is little in it of interestto those who do not possess a serious interest in early English legalhistory.However, first attention probably should be devoted to an esti-mate of the suitability of this book for independent readers, andfor beginning law students, for Professor Plucknett states in hisintroduction that the book has been prepared "as an historicalintroduction to the study of law" and that "as the readers forwhom it was designed are not professional historians and are stillin the early stages of their legal education, it was obviously theauthor's duty to avoid unnecessary detail and technicality".In spite of this avowed purpose it is felt that the book in manyrespects is not suitable as an introduction to law, and that techni-cality has not been sufficiently avoided. It is felt that onlyadvanced law students can expect to follow and really understandall that the author has offered them, and that independent non-professional readers will be unable to use the book at all.For example, the elementary, or non-professional, reader willprobably not grasp the following on page 181, where speaking ofBracton and the use of cases, the author states, "He never givesus any discussion of the authority of cases and dearly would notunderstand the modem implications of stare decisis" without ex-plaining what "stare decisis" is. Again on page 212 the authorspeaks of the specific influence of Roman, on Anglo-Saxon, law1Kinnane: A Concise History of the Common LawPublished by The Research Repository @ WVU, 1930WESPT VIRGINIA LAW QUARTERLYbeing "traced principally in the law relating to bookland" with-out giving any idea of what bookland is, so that the whole pointof the statement is lost to the elementary reader. Again the dis-cussion on page 253 of the rule against perpetuities, will probablybe found by the elementary reader to be entirely incomprehensible.So with the reference on page 217 to the period of limitation onthe writ of right, and so with the referende on page 274 to thematter of death within the period of limitation in connection withthe assize of mort d'ancestor. Another example is the statementon page 343 that "the division of ownership in the case of theentail is certainly the origin of the common law system of estates'D ' 0 e ,,, which statement is certainly unintelligible to thebeginner, and even the student with some acquaintance with thelaw of real property will not begin to get the point of this state-ment until he is well into the following chapter-if he even getsit then. Another inadvisable use of technical terminology accursin the discussion on page 338 of alienation by subinfeudation wherethe terms "tenant of the land in demesne", and "tenant inservice", and "incorporeal hereditament" are used without pre-liminary explanation.The foregoing are only a few of numerous instances which in-dicate that the author'at times forgot his readers, if they were ex-pected to be beginnners in the field of law, or else was in factwriting for advanced readers with considerable knowledge of lawand of legal history.As to arrangement and treatment of material, it would be inter-esting if space were available to compare it in detail with the ShortHistory of English Law by Jenks. However, it is possible here tosay only that the two books are quite dissimilar. Professor Pluck-nett seems to lose interest in most things newer than the 16thcentury, while Jenks comes down into the 20th century. Jenks,although he is restricted by his title, to English history, coversmuch besides the Common law. Plucknett although he has thewhole scope of Common Law within his title rarely ventures intoany Anglo-American jurisdiction except England. The treatmentby Jenks of the 19th century reforms is quite full compared tothat of Plucknett to whom this period seems to hold little interest,although it is probably more important to our own times--if oneis writing for beginners-than the periods several centuries re-moved. As to modern procedural and substantive law, Jenks'range is much more broad, and seems better designed to connectour own time with the past.The effort to write too briefly on the Common Law has resultedin what is felt to be a misleading under-emphasis of other essential2West Virginia Law Review, Vol. 36, Iss. 3 [1930], Art. 12https://researchrepository.wvu.edu/wvlr/vol36/iss3/12BOOK REVIEWSparts of our legal history, if it was intended to write a book suit-able for beginners. Formal treatment of the Common Law con-sists of six pages, the influence of the Roman Civil Law gets aboutthree pages, the Law Merchant gets about eleven pages and theseare spent principally in introducing the idea of negotiability,there is hardly anything on the Admirality jurisdiction, equitygets a slightly more adequate treatment of approximately twenty-three pages, of which, however, eleven are devoted to biographiesof the early chancellors. Even a concise history of the common lawwould seem to require more extended treatment of these matters.There is, however, much material in Professor Plucknett's bookthat is not to be found in that of Jenks, such as the material onthe methods of progress, such as custom, the forms of action(regrettably brief), legislation and precedent. The biographicalmaterial from Braeton to Lord Eldon, scattered in various placesin the book, is also an interesting feature, as are the chapters onprofessional literature, and on the legal profession.As to mechanical features, there is a detailed table of contentswhich has to serve in lieu of section headings in the text. Thereis a table of some forty leading cases, and a table of some forty-four early statutes. The index, at first sight quite adequate, couldstand much improvement. For example, such important mattersas the names of the forms of action are not separately indexed, butcan finally be located under the head of "Writs," and the CommonLaw Procedure Acts and the Judicature Acts could not be foundin the index at all.As to possible errors in the text, the following are a few -amongother doubtful matters that seem illustrative. It is suspected thatProfessor Plucknett sees the origin of assumpsit about a centurysooner than most of us-but probably we are wrong. The state-ment on page 147 that below the House of Lords was the Courtof Appeals and that below it was the High Court of Justiceseems to be misleading as to the organization of the SupremeCourt of Judicature. The st tement on page 312 that "otheraspects of feudalism such as dependent tenure" "are presumed toexist still in some jurisdictions in this country" runs counter tothe reviewer's understanding that allodial ownership is everywhererecognized in the United States.In conclusion, it is felt that the book is probably not suitableas an introduction because it is too technical, that it is not asufficiently complete "concise history" for general use, because itstops in many instances, too many centuries from our own time,and that it is not a history of the whole Common Law, as it almostnever passes outside of England-it is rather a concise history of3Kinnane: A Concise History of the Common LawPublished by The Research Repository @ WVU, 1930WEST VIRGINIA LAW QUARTERLYearly English common law. However, even with this limitedscope, there are, as compared with other available works, suchdifferences in interest, in emphasis, and in treatment that no one,who pretends to be acquainted with the literature on this subject,can overlook this book.-CIIARLS H. KnMNANM,University of Wyoming.CASES AND MATERIALS ON fHE LAW OF SALES. By Karl N.Llewellyn, Chicago: Callaghan and Company, pp. xxxv, 1081(1930).For several years we have been conscious of stirrings at the Co-lumbia University School of Law. One of the first fruits, bywhich the outsider may judge of the nature and merit of the workthere being done, is now available in the form of a Sales casebookby Professor Llewellyn. It is safe to say that this book is themost stimulating casebook that has appeared in recent years. Inorder to discuss in any adequate manner the very importantproblems of legal education that are raised, a review would haveto be expanded far beyond the limits of space available. Anattempt will be made to touch on only a few of what appear tothe reviewer as outstanding points.The book differs from the usual Sales casebook in several respects.Introductory remarks by the author are found at the beginningof many of the chapters and sections. Comments and questionsfollow the cases. The facts of many eases and the decisions areprinted without opinions. There are variations in content andalignment of material.The comments of the author (and he is more than an editor)make this book of far more interest than the ordinary casebook.They give us an insight into Professor Llewellyn's classroommethods. The doctrine to be found in the cases is revealed notas a static thing but -as in the process of growth, moulded by theexigencies of the changing commercial world. The demands ofsocial policy and the promptings of commercial sense are ablypresented by way of explanation or criticism of judicial action.The patterns of commercial dealing and the reasons for them ardemphasized. Rules of law, statutory and judge-made, are dis-cussed in their relation to types of sales transactions now in use.Professor Llewellyn imparts a knowledge of the business worldand non-legal terminology that is exceedingly valuable for a lawyerto know. It will enable him better to understand the problems ofhis clients. It will make it easier to grasp the significance ofcomplicated transactions involving business devices that are well3104West Virginia Law Review, Vol. 36, Iss. 3 [1930], Art. 12https://researchrepository.wvu.edu/wvlr/vol36/iss3/12

A Concise History of the Common Law

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A Concise History of the Common Law

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