The Online Library of Liberty

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• Preface
• Select Essays In Anglo-american Legal History Volume I General Surveys
• A Table of British Regnal Years
• Part I.: Before the Norman Conquest
• 1.: Frederick William Maitland, a Prologue to a History of English Law 1
• 2.: Edward Jenks, the Development of Teutonic Law 1
• 3.: Sir Frederick Pollock, English Law Before the Norman Conquest 1
• Part II.: From the Norman Conquest to the Eighteenth Century
• 4.: Alice Stoppard Green, the Centralization of Norman Justice Under Henry Ii 1
• 5.: Edward Jenks, Edward I, the English Justinian 1
• 6.: Frederick William Maitland, English Law and the Renaissance 1
• 7.: Thomas Edward Scrutton, Roman Law Influence In Chancery, Church Courts, Admiralty, and Law Merchant 1
• 8.: William Stubbs, the History of the Canon Law In England 1
• 9.: William Searle Holdsworth, the Development of the Law Merchant and Its Courts 1
• 10.: James Bryce, a Comparison of the History of Legal Development At Rome and In England 1
• Part III.: The American Colonial Period
• 11.: Paul Samuel Reinsch, the English Common Law In the Early American Colonies 1
• 12.: St. George Leakin Sioussat, the Theory of the Extension of English Statutes to the Plantations 1
• 13.: Charles Mclean Andrews, the Influence of Colonial Conditions As Illustrated In the Connecticut Intestacy Law 1
• Part IV.: Expansion and Reform of the Law In the Nineteenth Century
• 14.: R. Robinson, Anticipations Under the Commonwealth of Changes In the Law 1
• 15.: John Forrest Dillon, Bentham’s Influence In the Reforms of the Nineteenth Century 1
• 16.: Charles Synge Christopher, Baron Bowen, Progress In the Administration of Justice During the Victorian Period 1
• 17.: Joseph Henry Beale, Jr., the Development of Jurisprudence During the Nineteenth Century 1
• 18.: James Bryce, the Extension of Roman and English Law Throughout the World 1
• Part V.: Bench and Bar From Norman Times to the Nineteenth Century
• 19.: John Maxcy Zane, the Five Ages of the Bench and Bar of England 1
• 20.: Van Vechten Veeder, a Century of English Judicature, 1800-1900 1
• 21.: James Kent, an American Law Student of a Hundred Years Ago 1

5.

EDWARD I, THE ENGLISH JUSTINIAN1

By Edward Jenks2

THE few years which followed the conquest of Wales have given Edward his title to immortal fame, a fame earned by that noblest of all royal virtues, a steadfast devotion to the happiness and prosperity of his subjects. Keeping a wary eye on the ominous prospects of the Scottish succession, never forgetting the possibility of a Welsh rising, taking a conspicuous part in the territorial and dynastic problems of the Continent,—the quarrels between France and Aragon in particular,—coquetting with successive Popes on the subject of the proposed Crusade, exacting from Philip of France a due fulfilment of the treaties of Paris and Amiens, his main strength was yet steadily spent in those great internal reforms which mark the change from feudal to industrial England, from the old divided England of the Barons’ War to the united England of the end of the century, from the Middle Ages to modern history. In the winter of 1290, he lost his faithful and beloved wife, Eleanor of Castile; and the event seemed to close the chapter of his prosperity. From that time till his lonely death in 1307, the King was involved in unhappy quarrels—the interminable quarrel of the Scottish succession, the quarrel with France, the quarrel with his own nobles, the quarrel with the Church. In all these, the country never lost its faith in the King; Edward never sank in public esteem as his father and grandfather had sunk. He never lost the power to recall the affections of his subjects by a frank appeal to old memories. “Except in opinion, not disagreeing,” might truly have been said, at any moment, of the King and his people. But that the firm trust of Englishmen in the nobleness of their ruler remained unshaken during those sixteen years of storm and stress, of taxation and war, of absence and seeming neglect, was surely due to the profound impression of justice, patience, honesty, wisdom, and self-denying toil, created by the two brilliant years of internal reform, whose course we now attempt to trace.

First in point of date comes the famous Statute of Merchants, or Acton Burnell. As we have formerly seen, the expansion of foreign commerce, brought about by the Crusades, had rendered the merchant a figure of new importance in the social system of the country. But he fitted badly into the established order of things. As often as not a “foreigner,”1 he had no native town in England, he was a member of no clan or blood-feud group, of no fief or monastery. He was a lost unit in a society which barely recognised individualism in its humbler ranks; which had a profound distrust of strangers; which looked on commerce mainly as an opportunity of cheating, and commercial profit as something nearly akin to usury. The safety of the stranger merchant, at first secured by placing him under the “mainpast,” or guarantee, of his host, subsequently strengthened by his own spontaneous association into gilds or brotherhoods, was finally recognised, as a matter of national policy, by the express words of the Great Charter.

But it was necessary to the welfare of the merchant, not only that he should be protected from bodily harm, but that he should be actively assisted in the enforcement of his rights. People were beginning to discover, that credit is the life-blood of commerce; and credit could not exist in a society which knew nothing of commercial honour, as we understand it, without an adequate machinery for the enforcement of commercial obligations. No man, in the England of the thirteenth century, would have thought a fraction the worse of himself for refusing to satisfy a commercial claim, however just, which could not be legally enforced against him. Scandalous as the position seems now to us, it had grown easily and naturally out of the history of the law of debt. The earliest “debts” did not arise out of voluntary transactions: they were bloodfines reluctantly offered by guilty men, robbers and murderers, to appease the just vengeance of the injured or their relatives. Quite naturally, these offenders resisted payment until the last possible moment. Nowhere are a priori conceptions more inadequate to explain facts, than in the discussions of legal morality. But a patient study of the history of legal ideas not only removes all difficulties: it leaves the student wondering at the simplicity of the explanation, so long sought in vain by the exalted methods of deductive speculation.

Thus it becomes clear, why the merchant of the thirteenth century, especially the foreign merchant, was helpless in the hands of his debtors. Three difficulties stood in his way. First, he could not, in all probability, appear as the ostensible plaintiff before a tribunal which did not recognise him as one of its proper “suitors” or constituents. He had to trust himself in the hands of a native agent, or “attorney,” who might decamp with his money. Second, he would find his adversary resorting, perhaps with the secret goodwill of the tribunal, to every trick and delay that chicane could suggest—and no one who knows anything of legal history will believe that chicane is a modern vice—to postpone the evil day on which judgment should be pronounced against him. Finally, if the plaintiff were successful in procuring a judgment, he would find himself obstructed in enforcing it by a defective procedure which, once more, is intelligible only by a reference to the history of the action of debt. In the days when debts were, as we have said, mere alternatives of corporal vengeance, the man who could not satisfy them “paid with his body.” In other words, if the avenger of blood did not get his money, he got his revenge, either in the form of imprisonment of his debtor, or even by exacting the extreme penalty. This is the simple explanation of the horrible system of debt-slavery, of which students of Roman history learn so much—and so little. Apparently, before Edward’s day, the right of the judgment creditor to seize the chattels of his debtor, through the hands of the sheriff, had become generally recognised. But the strongest instincts of feudalism were opposed to the suggestion that a debtor’s land might be sold for payment of his debts, and a new tenant thus imposed upon his lord. And feudal instincts were, in this respect, as in so many others, powerfully supported by still older social instincts, surviving from an age in which land was not the property of the individual, but of the clan or kindred, and when to admit that the sacredness of the kin group might be disturbed by the intrusion of the creditor of one of its members, would have been regarded as little short of blasphemy.

But the rapid progress of industry, and the rapid decay of patriarchal and feudal institutions, in the twelfth and early thirteenth centuries, had really rendered this antiquated rule a relic of barbarism and a cloak of injustice. Now that the services of nearly all tenants, except those in the lowest ranks, had been commuted into money, now that the coheirs of a deceased landowner could obtain the assistance of the King’s courts to effect a division of their inheritance, it was absurd to maintain the fiction of patriarchal and feudal connection. It was, clearly, the duty of the lawgiver to express in formal terms that revolution of social ideas which had actually taken place, and to carry the revolution to its legitimate issue.

This, in fact, is just what Edward did in his famous Statute (passed even before the death of Llywelyn at Orewin Bridge), at the manor of his Chancellor, Robert Burnell, Bishop of Bath and Wells, near Shrewsbury, on the 12th October, 1283. The so-called “Parliament of Acton Burnell” has no more claim to constitutional importance than the so-called Parliament House, which professes to be the very building in which it sat; for the body which best deserved the title of Parliament was then sitting at Shrewsbury, seven miles away, and the Statute was probably drawn up and promulgated, as it professes to be, by the King and his Council, i. e., the small body of officials who accompanied him on his journeys. But its legal validity has never been questioned, and its importance is beyond dispute. A merchant who doubts the honesty of his would-be debtor may insist upon his “recognising” or admitting his liability in a formal document, sealed in the presence of the mayor of a chartered borough, and entered upon a roll which remains in the official custody, while a “bill” or “obligation,” sealed by the debtor and authenticated by the royal seal, is handed over to the creditor. If the debtor fails to pay, at the appointed time, he may not only be imprisoned, but his chattels and “burgage” tenements (i. e., lands in the borough) may be sold, without any preliminary proceedings, by the mayor to satisfy the debt, or, if there is any difficulty in effecting the sale, the debtor’s chattels and all his lands may be handed over at a reasonable valuation to the creditor, until, out of the issues, the debt is liquidated. Even the death of the debtor will not destroy the creditor’s remedy against his lands, which will remain liable in the hands of his heir, against whom, however, there will be no personal remedy.1

No apology is needed for the space which has been given to the Statute of Merchants. Under the cover of its technical phrases, the King dealt a death-blow at the still surviving forces of patriarchalism and feudalism, and recognised the new principles of individual responsibility and commercial probity which were to be watchwords of the political and social future. Like a wise legislator, he had merely interpreted and guided the overwhelming drift of evolution, and distinguished between obstruction and progress. He saw that the future greatness of England lay, not with the feudal landowner, but with the despised merchant. His enactment is admirable in its simplicity and effectiveness. It was freely used, not only by merchants, but by every class of society, until improvements in the procedure of the courts had rendered it unnecessary. The still simpler machinery of “negotiable paper” (Bills of Exchange and Promissory Notes) ultimately superseded the machinery of Edward’s enactment; but, at least until Elizabeth’s day, capitalists lent their money on “statutes,” no less than on mortgages. And if “statutes” were abused by a Sir Giles Overreach, we must not forget, that an institution is to be judged by its uses, not by its abuses. One injustice Edward’s advisers unquestionably did, in making the entire inheritance of a wealthy landowner responsible for the debts and follies of his eldest son. But this was the inevitable consequence of the policy which, before Edward ascended the throne, had forced the feudal custom of primogeniture, in all its naked simplicity, upon an unwilling nation.

Nothing but an excusable dislike of the dry details of legal history can explain the failure of the many able historians who have treated of the reign of Edward, to detect the close connection between the Statute of Merchants and the yet more famous Statute of Entails, which so soon followed it. On the King’s return from his Welsh campaign, he summoned a great Parliament to meet at Westminster at Easter of the year 1285. It was a very different body from the small Council of ministers which had drawn up the Statute of Merchants. Though the precise details of its composition are, unhappily, obscure, it is obvious that the reactionary feudal element was strong enough to deal a severe, though temporary, check to the policy of the latter statute.1 Nor is it at all difficult to understand the motives which produced such an outbreak. If the lands of an improvident baron or knight were liable to be seized by his creditors, what was to become of the great feudal families whose pride of lineage was only equalled by their recklessness and extravagance? The feudal landowners were quite shrewd enough to see, that a long family pedigree is cold comfort unless accompanied by a substantial rent-roll—nay, that it is practically impossible for the pedigree to be maintained without the estate. And so, banding all their forces together, they refused to pass the long series of excellent minor reforms on which the King had set his heart, unless he first consented to the solemn promulgation of the legality of entails. It is impossible to look at the famous Statute of Westminster the Second with a trained eye, and not to see the inconsistency of its first chapter (the so-called Statute De Donis) with all its subsequent forty-nine clauses. The latter are the work of skilled officials, guided by a King of great ability and honesty, and aim at the minute reform of the machinery of an antiquated system. The former is a bold and defiant assertion of conservative prejudice, veiled by the King’s advisers in specious language, which barely conceals the chagrin of the legislator in whose name it is produced. Broadly speaking, it authorised the creation of estates which should descend in unbroken succession down the line of inheritance prescribed in the original gift, so long as that line should last. The successive occupants of the land might pose as the owners, might draw the rents, and even cut down the timber; but instantly on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debts of his ancestor, or by any disposition made by him during his lifetime. Even an attainder for treason or felony was not to work a forfeiture of the estate; for, immediately upon the attainder, the culprit became dead in law, if not in fact, and his heir succeeded, in defiance both of the Crown and the creditors of the deceased. As, by the rule of primogeniture, the great bulk of such inheritances would go to the eldest sons, another obvious result (in the days in which wills of land were not recognised) would be, to starve the younger members of a landowner’s family for the benefit of the eldest. By a refinement of perversity, the estate, on failure of the issue of the first acquirer, was to revert, not to his collaterals or his creditors, but to the original donor, who thus reaped an unexpected windfall from the misfortunes of the purchaser’s family. The whole chapter is a monument of colossal family pride and feudal arrogance. Left to its natural results, it would have converted the English aristocracy into a close corporation of stupid and unprogressive grandees, filled with the pride of pedigree, starving on lands which they had neither the intelligence nor the legal power to develope, divided from their own kindred by feelings of injustice and oppression, and especially at daggers drawn with their expectant heirs, whose utmost neglect and disobedience they would be powerless to correct by threats of disherison. To suggest that Edward was a willing party to such an act of folly, is a monstrous calumny on his fair fame, and a gross outrage on the probabilities.

Happily, the Statute De Donis was not destined to endure. Though, like much of Edward’s legislation, it has never been formally repealed,1 it has, unlike much of that legislation, long been rendered a dead letter by the more cruel process of contemptuous evasion. In spite of the solemn provisions of the Statute, the principle laid down by it was defeated by the use of a legal fiction so indecently transparent, that it proves conclusively the unpopularity of the rule which it so successfully destroyed.2 Before the judges, without whose connivance such an evasion would have been impossible, allowed themselves to sanction it, we may be quite sure that they had satisfied themselves of the feebleness of the force behind the Statute. Unfortunately, it is at present quite impossible to say at what date the convenient fiction of the “Common Recovery” made good its footing in this connection. The classical instance occurred in the year 1472; but it is obvious, from the merely incidental way in which it is mentioned by the reporter, that the process was perfectly familiar at that time; and, as our knowledge of legal history increases, it may very well be discovered, that the Statute De Donis had even a shorter life than that usually attributed to it. At any rate, ever since the close of the fifteenth century, the unbreakable entail has ceased to exist, save in the few cases of land settled by Act of Parliament as the reward of public services, and—in the pages of the novelist.1

Only a very brief analysis can be attempted of the long and elaborately technical clauses which make up the rest of the great Statute of Westminster the Second. It was natural that an enactment avowedly based upon the evils brought to light by the Hundred Rolls, and the proceedings thereon, should contain a good deal about feudal abuses. The harsh proceedings of landlords who make use of the new legal procedure to extort their dues from their tenants, are checked; none but sworn bailiffs are to be employed in seizing goods for default of rent; and in such cases the tenants are to have full opportunity of testing the validity of the seizures in an independent court. The use of violence in the place of legal procedure is sternly prohibited. Further encroachments on the jurisdiction of the Crown are anticipated by the provision, that every judge who goes circuit is to be furnished by the Exchequer officials with a list of “franchises,” lawfully claimable by subjects within the counties of his commission; and any tampering with the returns by which such lists are brought up to date is to be punished as treason. On the other hand, the Statute shews every disposition to protect the feudal landowners in the exercise of their admitted rights; and, in one particular case, we may well think that it assists them at the expense of a class far less able to make its claims heard. The 46th clause of the Statute expressly authorizes the manorial lords, in continuance of the policy of the older Statute of Merton, to “approve,” i. e., bring under cultivation, any part of the common wastes which then formed such a valuable preserve for the humbler members of the villages. The established rights of the “commoners” are, of course, theoretically safeguarded; but there is no provision for the growth of population; and a lurid light is thrown on an otherwise obscure economic struggle, by the provision, that if hedges or dykes, erected in the course of approvement, are secretly destroyed, the adjoining townships are to be distrained, without proof of complicity, to make good the damage.

But Edward was not the man to reform his neighbour’s household while he left his own in disorder; and one of the most conspicuous features of the Statute of Westminster the Second is its elaborate provision against abuses by royal officials. Not only are the circuits of the judges carefully regulated, to prevent, on the one hand, oppressive multiplication of public burdens by too frequent sessions, and on the other, delay and injustice arising from insufficient attendance, but the more glaring abuses of official power are treated with a frankness which must have convinced the culprits that the King, at least, had his eyes open to their misdeeds. Sheriffs and bailiffs who start bogus prosecutions, with the object of extorting money, are to suffer imprisonment. Petty officials of local tribunals, who connive with feudal landowners to withdraw suits from the circuit courts, in order that they may oppress the poor in private, are to make fine to the King, and to pay threefold damages to the party injured. Whilst the duty of service on juries is asserted, the obvious danger of persecution and extortion, by the officials charged with the preparation of the lists, is carefully guarded against. A very significant clause requires the sheriffs to give sealed receipts for all writs delivered to them for execution. The fees of the hierarchy of royal officials, from the Marshal and the Chamberlain, down to the porters, cyrographers, and clerks, are carefully regulated. And, finally, a most wholesome clause lays it down emphatically, that no royal official may accept a share of, or purchase any interest in, property which is the subject-matter of dispute in the royal courts.

The Statute of Westminster the Second is, perhaps, mainly concerned with the conduct of the King’s local representatives in the country districts; but an almost contemporary group of Exchequer Ordinances made strict and much-needed reforms in the machinery of the central government. The cherished abuse of all revenue officials, from the days of Falkes de Bréauté to the days of Marlborough and Stephen Fox, viz., the retention of heavy balances in their private pockets, was sternly, though, it is to be feared, ineffectually forbidden by Edward’s rules. The employment of irresponsible private agents in the King’s business is strictly prohibited. Alleged deductions on account of expenses are to be carefully scrutinised by independent surveyors. Oppressive exaction, even of the King’s debts, is deprecated. And it is twice laid down, but, alas! ineffectually, that the special royal privileges of the Exchequer process, which were intended for the benefit of the King only, are not to be made use of by private persons.1 Leaving, for the moment, the eloquent comment on these regulations furnished by the proceedings of the year 1290, we return to our analysis of the Statute of Westminster the Second.

The third and last great object of this Statute may be said to have been, to apply to ordinary litigants the same rules of justice and moderation which, as we have seen, the King had imposed on the feudal nobility and his own officials. The farther back we go in legal history, the more clear does it become, that the abuse of legal process, by litigants and officials alike, is no new thing, but, on the contrary, an ancient evil which steadily, if slowly, tends to diminish. Nor is there anything in this discovery that should surprise us. Legal procedure grew out of a gradual substitution of argument for violence, and it bears the marks of its origin at every turn. The doing of “abstract justice” is, no doubt, an unwise ideal for any human tribunal to cherish. But long before the far more modest ideal of “substantial justice” arises in the minds of judges and legislators, the most exalted aim of courts of justice is to secure a “fair fight,” of a kind which shall not disturb public order. And a subtle or wealthy litigant no more refrains from profiting by tricks or bribery, than a modern general refrains from exercising his skill or resources because he knows that his adversary is a fool. Early reforms in the administration of justice are really made in the interests of sport, rather than in the interests of what we call justice. Even now, the fascination of a great lawsuit, for the mass of men, lies in the excitement of the duel between plaintiff and defendant, or between Crown and prisoner, rather than in any desire to see justice reproved or wickedness punished. In early society, the Court Day is one of the few excitements in a monotonous existence; and unfair tricks and outrageous oppression are gradually prohibited, just as wide bats and “no balls” have been prohibited in cricket—because they spoil sport. The details of the Statute show that Edward’s advisers thoroughly grasped this truth. They are far too technical to be set out here; but, broadly speaking, we may say, that they are aimed solely at preventing collusion, fraud, and delay, offences (as we should deem them) which are inconsistent with wholesome sport. The first obviously tends to deceive the spectators, and stands on the same footing as the “pulling” of a horse in the Derby. The second is always unpopular in a society which prefers the exercise of physical to mental force; and the third is obviously disappointing to people who have come a long way to see the performance, and are apt to lose the thread of the story if the intervals between the acts are too long. So the dowress, the life tenant, or other temporary occupant of land, who allows himself to be defeated in lawsuit by a collusive claimant, with a view to excluding his successor; the husband who surrenders his estate that it may not pay dower to his widow; the guardian who takes advantage of his ward’s minority to allow a stranger to exercise rights which properly belong to his ward; the man who warrants title to land and then refuses to defend it; the man who shams illness and lies in bed to delay proceedings, are put under heavy penalties; and their acts are not allowed to prejudice their intended victims.

Finally, the Statute contains, in its twenty-fourth chapter, a clause of which lawyers have long recognised the importance, but which lay historians are too apt to regard as mere technical jargon. Carefully concealed under the guise of an administrative regulation, the Statute lays it down, that the chancery officials, through whose hands must pass every royal writ, which was then, and still is, the normal beginning of every action in the royal courts, need no longer be guided by a strict adherence to precedent in the issue of these documents. It is sufficient if the remedy sought and the circumstances of the case are like those for which writs have previously been issued. In other words, principle, not precedent, is henceforth to guide the Chancellor and his officials in the issue of writs.

To a layman, impatient of the intricacies of legal history, such a direction may seem the most obvious piece of official platitude. In truth, it covered a daring attempt at completing, by a master stroke, a revolution which had been gradually proceeding during the twelfth and thirteenth centuries. Once more it is necessary to remind the reader, that the conception of the Crown, as the sole fountain of justice, is a very modern conception in legal history. The Crown in the later Middle Ages was but one of many competitors for the profitable business of judicature. The Church, the feudal nobles, the chartered boroughs, the merchant guilds, the shire and hundred moots, were all rivals, more or less formidable. And any premature attempt on the part of the Crown to claim universal and exclusive jurisdiction would assuredly have led to the fiercest opposition, even if it had not resulted in the dissolution of the State. Time was on the side of the Crown; but the King had to walk warily, and to be content for a long time with small things. Bit by bit, as chances offered, the royal officials filched the business of their rivals; and, as each claim was established, it was carefully enshrined as a precedent in that Register of Writs, which was one of the most precious possessions of the royal chancery. If an intending litigant could bring his case within the terms of a registered writ, well and good. If not, the King’s courts could do nothing for him. He might have the best case in the world from a moral, or even from a legal point of view. But his remedy, if any, lay elsewhere. With sorrowful hearts, for they disliked “turning away business,” the chancery officials regretted that they could not supply the desired article. The officials knew that their path was beset with dangers. The bold assertion of Henry II., that no lawsuit touching the title to freehold could be commenced without a royal writ,1 had played no mean part in stirring the baronial rising under John; and the claim had been solemnly renounced in the Great Charter.2 Now, perhaps, we are in a position to understand something of the audacity of the consimilis casus clause of the Statute of Westminster the Second, which, if acted upon to its full extent, would have left it open to ingenious chancery officials to discover analogies of existing precedents in the case of every intending litigant. But its comparative failure is another signal proof, that sound legislation is little more than the official consecration of enlightened public opinion, and that “fancy” or premature reforms are mere waste of words. The opposition to the full use of the clause came, not merely from feudal and clerical tribunals, but from the King’s own judges, who refused to recognise as valid writs which, in their view, departed too widely from precedent, no less than from the Parliaments of the fourteenth century, profoundly jealous of a power which, under the form of mere official documents, was really a power to declare the law of the land. The final victory of the royal jurisdiction was won, by the skilful use of fictions, by the rise of the Court of Chancery, and, finally, by the Reformation, which crushed the independence of the Church courts. It could not be achieved by a single clause in the Statute of Westminster the Second.

To the same year (1285), but to the autumn Parliament, belongs the credit of another great statute. The Statute of Westminster had been mainly concerned with the conduct of the ruling classes—the landowners and the royal officials. The Statute of Winchester is almost wholly occupied with the humbler ranks of the community. It is much shorter, far simpler, but even more comprehensive than its predecessor, and its purpose is clear as the day. It insists that every man, rich and poor alike, has active duties of citizenship to perform; that the good citizen is not merely to abstain from disorder and crime, sitting by with folded hands whilst others defy the law, but that he is bound to assist the forces of order and good government. Three simple but comprehensive duties are imposed upon every citizen by the Statute. He is to report every felon whose offence he may witness or hear of, and take an active part in pursuit of him. He must personally assist in maintaining the police of the country, by serving in the Watch,1 and by helping to clear the highways from the growth of underwood which affords such a convenient refuge for thieves and murderers. He must, at least so long as his years permit, provide and maintain himself with arms regulated according to his means, and, twice a year, present himself at the View of Armour held in his Hundred, that the King may know the condition of his militia forces. The Statute of Winchester is deeply interesting; it contains just that surviving fragment of the old Saxon system of local autonomy which was adopted by the strong central government of the Plantagenet Kings. It is silent, of course, as to the strictly popular elements in the old system; and it is probable that these disappeared rapidly before the increasing vigour of the central government. The two Constables of the Hundred mark the beginning of a new era in the history of English local government, in which local officials, though preserving a good deal of healthy independence, are brought into direct contact with the central administration. The genuineness of Edward’s interest in the Statute is shewn by the frequent appointment, in the succeeding years, of “Conservators of the Peace,” charged with enforcing the duties prescribed by the enactment; and this step seems to have been the direct forerunner of the great institution of the Justices of the Peace, which has a continuous history from the end of the fourteenth century.1 Obedience to the Statute was ultimately enforced by the simple, but very effective expedient, of holding the local unit responsible as a whole for the neglect of any of its inhabitants.

But the wondrous activity of the year 1285 did not end with the Statutes of Westminster and Winchester. In the same year, Edward defined, by the so-called Statute of Circumspecte Agatis, which is, in truth, nothing more than an official regulation, addressed to his judges respecting their behaviour in the diocese of Norwich, but which was accepted as a general declaration of royal policy, his attitude on the delicate question of ecclesiastical jurisdiction. The King had already taken up a decided position on the equally delicate subject of the acquisition of lands by the Church, when, in 1279, by the first Statute of Mortmain, he had announced his intention of rigidly enforcing the policy of the Great Charter. No person, cleric or lay, was, without royal license, to vest lands by way of perpetual succession in a monastery or other body not subject to the ordinary chances of death, upon pain of forfeiture of the land in question. This policy, commenced in the natural dislike of the feudal nobles to a practice which deprived them of the incidental windfalls of wardships, marriages, fines on admission of new tenants, and the like, was warmly seconded by the King, who saw the grave public danger of allowing land which represented a liability to military service to get into the hands of clerics who claimed exemption from such duties, and whose tenacious grip would effectually prevent its coming again into the market. For once, Edward and his barons were at one; and the Statute of 1279 was supplemented by certain useful clauses in the Statute of Westminster the Second. Moreover, this same enactment contained a salutary clause, compelling the clerical authority, which claimed a share in the goods of every man who died without making a will, to satisfy the debts of the deceased out of the assets coming to its hands. But the Statute Circumspecte Agatis makes no extreme claims. In all suits really spiritual, such as the enforcement of penances for deadly sin, the infliction of penalties for neglect of the fabric of a church or of a churchyard, the claim by a parson to tithes, mortuaries, oblations, or other customary dues, even claims to the proceeds of benefices (so long as the titles to the benefices themselves are not in dispute), and in actions for violence to a clerk, or for defamatory words, the King’s judges are not to interfere by the issue of a Prohibition. On the other hand, the King provides the judges with a list of matters properly belonging to the royal jurisdiction, and the list, long as it is, amply establishes the position so frequently insisted upon in these pages, that the jurisdiction of the royal tribunals was, even in Edward’s reign, a jurisdiction which was being slowly being built up, bit by bit, in the struggle of many rivals. A truly liberal regulation, variously attributed to the years 1286, 1290, and 1296, but probably belonging to the year 1290, provided for the contingency of a Prohibition being issued in a case in which the King’s courts did not provide a remedy. In such a case, the King’s official (the Chancellor or Chief Justice), having satisfied himself of the possibility of a failure of justice, is to write to the ecclesiastical judge, bidding him to proceed notwithstanding the Prohibition.

The last piece of legislation to be noticed, in this fruitful year (1285), is an Ordinance for the government of London, which seems to have been published just before its close. Evidently, Edward could not bring himself to forgive entirely the great city which had taken up arms against his father, and insulted his mother. He steadily refuses to recognise the Mayor as an essential feature of municipal existence. There may be a Mayor, but if the city is in the King’s hand there will be, instead, a Warden nominated by the King, who will care little for the views of the citizens. Taverns are only to be kept by fully qualified citizens, and are to be closed rigidly at curfew. No one is to teach fencing within the limits of the city. Each alderman is to hold frequent enquiries as to the presence of malefactors within his ward, and to send all whom he may discover, in safe custody, to the “Warden or Mayor.” No roysterer or other serious disturber of the peace is to be let out on bail, without the express warrant of the “Warden or Mayor;” and no broker is to carry on business until he has been presented and sworn before the “Warden or Mayor” to exercise his craft honestly. Incidentally, the ordinance is of interest, as revealing the fact that London, even in 1285, was already a cosmopolitan city, which attracted wanderers from all lands, some of whom “nothing do but run up and down through the streets, more by night than by day, and are well attired in clothing and array, and have their food of delicate meats and costly.”

The three glorious years, 1283-85, have only twice been rivalled for honourable activity in the annals of English statesmanship. Once in the sixteenth century, when the Reformation Parliament of Henry VIII. set itself, under the guidance of the King and his ministers, to the reconstruction of the national Church, and once in the nineteenth, when a spontaneous outburst of epoch-making legislation followed on the assembly of the first reformed Parliament, has the history of English law a parallel to offer. Had those three years been the utmost limits of Edward’s reign, he must have come down to us as one of the greatest and wisest of rulers, who surveyed the body politic in all its members, and laid his healing hand on every sore. But when we reflect that those years were but a fraction of a long reign of thirty-five years, and of a public life which covered at least half a century; when we call to mind, that the man who put forth the Statutes of Acton Burnel, Rhuddlan, Westminster the Second, and Winchester, was the hero of the Barons’ War, the Crusader, the framer of the Hundred Rolls and the guide of the Quo Warranto enquiry, the conqueror of Wales, the arbiter of Scotland, the organiser of the coast guard, the unflinching opponent of Papal aggression, and the summoner of the Model Parliament; when we remember, that his name was as great abroad as at home, that he ranked as the equal of Philip of France, and the superior of the Kings of Aragon, Castile, and Sicily, and of the princes of the Netherlands; when, finally, we discover, that the mighty statesman was also the faithful and affectionate son and husband, the wise and patient father, the patron of merit, and the supporter of true piety; then we shall realise that few such monarchs, nay, few such men, have held up the pattern to poor humanity. It is easy to say that Edward draws the credit which of right belongs to his ministers. Doubtless, much of the wisdom of his legislation was due to the advice of his officials, who knew exactly the weak points in the ship of State. But there is also much reason to believe that, among Edward’s troubles, were too often to be reckoned the follies of those who should have been his support and stay. Robert Burnel was a notorious profligate, even though he was Chancellor of England and Bishop of Bath and Wells. Antony Bek was a turbulent priest who, but for Edward’s steady watchfulness, might have proved a second Becket. Ralph Hengham, Thomas of Weyland, and their fellow judges were, as we shall see, heroes of the greatest judicial scandal in English history. Adam of Stratton, one of the chief officials of the Exchequer, was a corrupt scoundrel. If, in spite of these notorious exceptions, Edward managed to attract able and upright servants, the credit is surely due to him. A King usually gets the ministers he deserves.

So we part from the brightest chapter in Edward’s career. . . .

It would be a great mistake to suppose that Edward created, or intended to create, a Parliament in the sense in which we now understand the term. At the present day Parliament performs four great functions. It legislates, it ventilates grievances, it criticises the details of administration, it provides money. The last of these functions alone was assigned to it by Edward, at least so far as the elected members were concerned. The orthodox form of the summons to the shire and borough members, as settled by Edward’s ministers, and consecrated by six hundred years of practice, invites them “to do” what shall be ordained in the premises. There can be no doubt, in the circumstances of the case, that the phrase “to do” (ad faciendum) was merely a polite form of the cruder expression “to grant money,” and equally little doubt that, however long the phrase has been a mere fiction, it originally expressed a genuine truth. The clearest proof of this lies in the fact, that when the King really did desire the counsel of humble persons, he knew how to ask for it, as when he summoned an assembly of citizens in 1296 to advise him on the settlement of the borough of Berwick-on-Tweed. Not for nearly four hundred years did the elected members of Parliament make good their claim, except in times of revolution, to criticise the royal administration, or to cause the removal of the King’s ministers.

As a matter of fact, the elected members were far more anxious to establish another right, and their anxiety was wise. In all probability they had not the knowledge necessary to make them useful critics of the royal administration. But they were an admirable machinery for the collection of popular grievances. The right of presenting petitions to a monarch is so useful to the ruler himself, that it is very rarely denied, even by Oriental despots. Nothing is so dangerous to the security of a throne as the existence of secret discontent, which the sufferers despair of being able to bring to the royal ear. Long before Parliament came into existence, the English kings received petitions from their subjects. But the fate of the petitions was precarious. First the king had to be found; and only students of history can realise the activity and elusiveness of a medieval king. When found, the king had to be approached, often through a crowd of courtiers and officials, who were none too anxious to help the suppliant. Then there was the weary waiting for a reply. All these difficulties disappeared, as by magic, with the institution of Parliament. The Parliament was summoned to meet the king. Its presence could not be ignored. The distant petitioner could entrust his plaint to the hands of his elected knight or burgess. The wages of the knight or burgess could be stopped if he did not do his duty; for they were paid by his constituency, not by the royal treasury. Above all, the knights and burgesses soon found that they had a powerful weapon in their hands. They could refuse to grant taxes until the petitions which they had presented had been carefully considered and properly answered by the Crown. Thus the great constitutional principle, that redress of grievances precedes supply, came slowly to light in Edward’s reign. Thus, also, we see the meaning of the careful apportionment in the Michaelmas Parliament of 1280, and so often afterwards, of the numerous petitions presented at the assembling of Parliament, among special officials or specially appointed committees, and the appearance of the Receiver of Petitions as a regular Parliamentary official. In fact, the merest glance through the records of Edward’s Parliaments is sufficient to convince the student, that the main business of the session was the discussion and remedy of individual grievances, while specially difficult or specially “prerogative” lawsuits form the other great item of work. These latter, after a few years, constituted the sole contents of the coram rege Rolls of the King’s Bench; while the private petitions which play so large a part in the records of Edward’s Parliament disappeared from the rolls, and became the “private bills” of a later day. Thus the “public bills,” which are so scanty on the rolls of Edward’s time,—the bills or petitions promoted by the King’s ministers, or by the magnates, or by the “community” or “communities” of the realm,—at last became the staple material of the Parliament Rolls, being engrossed in their final shape on the Statute Roll of the Kingdom. For that was the final work accomplished by Parliament. It fused the thousand diverse interests of shires and boroughs, clergy and laity, magnates and humble folk, into one national whole; and made possible the existence of national legislation.

And so we come, finally, to Edward’s position as a legislator, and to the title which he has acquired, of “the English Justinian.” Like most other popular titles, it covers a certain amount of truth. Justinian, reigning over an empire whose civilisation had been growing for a thousand years, summed up the legal history of that civilisation in a series of works, which has become one of the priceless possessions of Western life. In the Digest, or Pandects, he summarised, by a ruthless process of excision and compression, the works of that famous body of Roman jurists which was the boast of the earlier Roman Empire. To this he added a Code, or collection of imperial statutes, the second edition of which has been accepted as an integral part of the Corpus Juris Civilis. These again he supplemented by an admirable little Primer of Law, or Institutes, founded on the similar treatise of a great Roman jurist, who had been dead three hundred years when Justinian ascended the throne. Finally, he himself contributed upwards of a hundred “Novels,” or new statutes, to the legislative activity of the Byzantine Empire. With the authority of one who still believed himself to be the world’s master, he forbade all criticism of his completed work, and all reference to other sources of authority. Within the covers of the Corpus Juris would be found, he insisted, an answer to every legal difficulty which could possibly arise to vex the minds of his subjects.

The work of Justinian was, in itself, a great work, and would, at all times, have commanded the respect of the world. But, owing to the special circumstances of its fate, it achieved a success such as has not been secured by more than a dozen other books in the world’s history. It became, in fact, the secular Bible of Christendom, second only in authority and influence to the Sacred Scriptures. The age which produced it was a literary age, the ages which followed it were rude and ignorant. Even in its decay, the mighty Roman Empire contrasted forcibly with the crowd of petty princedoms into which it broke up. The rude barbarian princes of Europe listened with awe to the pages which spoke to them of a civilisation so far above their own. At first the Corpus Juris was known to them only through hasty and crude adaptations, made by the orders of the conquering chieftains of the Teutonic invasions; but, gradually, as Europe settled down after the storms of the Dark Ages, the pure text was received into the homes of the new learning, and ardent students of the precious volumes carried the fame of their wisdom from the schools of Bologna, Pisa, and Padua, to the Courts of Europe. At first the Church had no word of blame for the new movement; for the Byzantine Empire, though schismatic according to later Western ideas, was a Christian Empire, and Justinian’s Code accorded due honour to Bishop and Church. And, even after the Church, pursuing her new policy of isolation, had forbidden her priests to study the “secular” or “imperial” laws, and had set up a formidable rival in the Canon Law, the enthusiasm of the students of the Roman Law abated not a whit. In fact, the sincere flattery of imitation was accorded to Justinian’s work by the Papal legislators, who compiled their Corpus Juris Canonici on that very model which the Corpus Juris Civilis had seemed to render inevitable. And, in drawing a sharp line between the professors of the Civil and the Canon Laws, the Papacy made one of its most fatal mistakes, by alienating from its service a body of men who, for the first time in the history of Western Christendom, made a serious inroad upon the intellectual monopoly of the Church.

As a very natural result, the nations of Western Europe, or rather their rulers, began, at the end of the Middle Ages, to look upon the Corpus Juris of Justinian, not merely as a monument of Roman greatness, but as a complete code of conduct for the guidance of secular affairs. Realising fully, that the barbarous local customs of their own peoples, and even the general maxims of feudalism, offered no satisfactory guides for the new world of commerce which was growing up around them, they turned more and more for the solution of new and complicated problems to the ever ready pages of the Digest and the Code. In some cases, as in Spain, the Roman Law spoke of a past which men were proud to contrast with the present. There, the compilation of the Siete Partidas, modelled on the seven years of the legal curriculum in the Roman Law schools, was the Christian’s badge of defiance to the hated but impressive Saracen. In others, as in Southern France, the continuity between the city life of the Roman provinces, and the city life of Gascony and Aquitaine, was at least a cherished tradition; and it was natural that Southern France should be a pays du droit écrit. But, that Germany and Scotland1 should accept the Corpus Juris of Justinian is, apparently, so wild a freak of history as to deserve at least a passing wonder. And this wonder is increased by the discovery that England, so closely allied with Scotland and Germany in the course of history, so like them in civilisation, so near them in geographical position, at the critical moment, rejected the Roman Law, and went off on an entirely different course. And this critical moment is the reign, or at least the lifetime, of Edward Plantagenet.

The explanation is twofold. It lies partly in the notion which men then held of Law, partly in the circumstances of English history. It would be very easy to wander gradually into speculations as to the nature of Law, which would land us in a hopeless quagmire of confusion. “Law” is one of those familiar words which everybody thinks he understands, until he tries to explain them. But, briefly speaking, the notion of Law, in the thirteenth century, vibrated between three different conceptions. One was, that Law was a divine or, at least, a philosophical ideal, which could only be discovered by great wisdom and patient study. Men ought to conform their lives to a high ideal. And, as the Scriptures dealt mainly with principles and generalities, a system of Law was necessary to define details. The supporters of this view urged the adoption of the Corpus Juris as the required ideal. Nowhere else, they urged, was it possible to find such profound wisdom applied to the details of secular affairs. The revival of learning tended to give immense weight to the writings of the ancients; and Europe in the thirteenth century was far too uncritical to distinguish between the dates of Aristotle, Virgil, and the Roman jurist, Gaius. They were all “ancients,” and that was enough.

But it is doubtful whether the Corpus Juris would ever have obtained its immense success, had it not itself ostensibly maintained a second conception of Law, which had always found favour with a certain very important, if limited, class of persons. “The pleasure of the Prince has the force of Law,” is one of the best-known maxims of the Institutes; and we can well imagine that the sentence would not be unacceptable from the lips of a courtier. As a fact, of course, the Corpus Juris of Justinian had been compiled in the days of a despotism the completest, though, it must be admitted, also the wisest, which the world has ever seen. In the system of the later Roman Empire, everything centred in the person of the Prince, and his will was final and absolute.

How near, how very near, England was to the adoption of a system based on the principles of the Corpus Juris, few but professed historians know. Two facts, small in themselves, but very significant, reveal the possibilities of the situation more clearly than pages of vague description. One is, that Edward for years maintained in his pay, as his trusted adviser, Francesco Accursi, himself a learned student and professor of the Roman Law, and the son of the still more famous Accursi, the author of the Great Gloss, and the contemporary and fellow townsman of that Azo to whom Bracton was indebted for so much of his language. The other is, that an anonymous, but highly popular law book, compiled in the late thirteenth century, figures the Law as issuing from the mouth of the king. Evidently, there were symptoms, in the thirteenth century, of a very powerful alliance between the philosophical and the military conceptions of Law.

The humble alternative of these two lofty notions is the view, that Law is nothing but the formal expression of the common sense of the average man, as evidenced by his daily practice. In other words, Law is the formal shape into which the customs of average men are translated by the processes of legislation and judicial decision. It may be said that the conduct of the average man is influenced unconsciously by the teachings of religion and philosophy, and, consciously, by the commands of authority. That may be so; and yet, just as it is true that the average man’s conduct never precisely conforms either to the ideals of the philosopher or to the wishes of authority, so it is true, that custom always differs substantially both from religious and philosophical teaching, and from the injunctions of the most minute arbitrary directions. But it is not true, as has been superficially argued, that a system of Law which, like the English, is based on custom, is merely licensed anarchy. On the contrary, it acts somewhat severely on all abnormal persons, whether they be, like thieves and murderers, mere laggards in the march of civilisation, or, on the other hand, men with advanced ideas, who make their fellow-men uncomfortable by too rapid progress. To use a very simple simile, drawn from the practice of the examiner, Law, on this principle, aims at reproducing the best works of the second class, leaving out of account the geniuses in the first rank, and the dullards in the third.

This conception of Law, it must be admitted, offers to the ruler of a country which adopts it a somewhat humble position. He cannot pose as the Heaven-sent deviser of an ideal system, which he imposes at the sword’s point upon a stupid and ignorant people. But his task is, for all that, an important one, none the less important that it makes no superhuman demands upon the intellect. To put it briefly, he has to collect, to harmonise, and to formulate. It is only in quite recent years that we have known how these humble processes went on in England during the lifetime of Edward. For the first two he can hardly claim the credit; the last has won him the title of the English Justinian.

One of the essential conditions of Law is uniformity. But this condition did not exist in the England of the early twelfth century, when the royal justices first began those circuits of the shires which have been one of the most important features in the domestic history of the country for the last seven hundred years. These justices found that each county, almost each district, had its own local customs, differing, ever so slightly perhaps, but still differing, from the customs of its neighbours. As more and more cases came before the royal courts, as more and more juries delivered their verdicts in answer to royal enquiries, more and more clear did this truth become. But, on the other hand, more and more did the royal officials come to know of the customs of the land. The clerkly skill of the Norman and the Angevin official made ever more and more plain the habits and practices of the people. Greater and greater grew the collection of Plea Rolls which accumulated in the King’s Exchequer. Thus the materials for a Common Law were collected.

Then came a man with a great love of order and symmetry, a man capable of casting the work of the previous century into a compact and harmonious form. This man was Henry of Bratton, or, as we call him, “Bracton.” No man could have been better fitted for the task. In spite of his borrowings from Azo, and his references to Digest and Institutes, he did not, perhaps, know very much of Roman Law. But he knew something of it, and, as a cathedral chancellor, he must also have known something of the Canon Law. But, above all, as an experienced royal justice, deeply learned in the practice of the royal courts, he had unique qualifications for his task. The vital point in his work is that, whilst occasionally borrowing the language and arrangement of the Roman Law, whilst courtly in his references to the King, and civil to his brother ecclesiastics, he draws the body and bones of his work from the records of the Bench and circuit courts. This fact, long suspected from internal evidence by intelligent students, has been finally established, within the last twenty years, by the discovery of the very materials used by Bracton in writing his great book. Having access, by virtue of his official position, to the Plea Rolls, he made from them a collection of some two thousand cases,1 and from this collection he drew the rules which compose his book. For a century the work of assimilation had been going on throughout England, no doubt largely through the efforts of the justices themselves. A nation had been slowly born, with a consciousness of unity, and a willingness to give up minor differences for the sake of that unity. How much of the process was due to Bracton, how much to his predecessors, it is not possible to say, though, in many cases, we know the very names of the men to whom he attributes those decisions which have become part of English Law. But to him, at least, is due the credit of having cast into harmonious and enduring shape a huge mass of material which had been slowly accumulating. Still the different local customs lingered on, in the local courts of the manor, the borough, and the shire. But these were every day dwindling beside the vigorous growth of the royal courts; and for the royal courts there was now a Common Law, a law common to all the realm.

Bracton’s book was given to the world only a few years before Edward ascended the throne. Edward’s task was to give it free play. For the first time, English Law could be thought of as a whole, as a body which could grow and develop. Bracton’s treatise had stated, not only the rules of conduct themselves, but the legal procedure by which they could be enforced. In so doing, it had revealed some anomalies and many imperfections. These it was the peculiar province of the King to remedy; for the courts which they affected were his courts. It is astonishing how much of Edward’s celebrated legislation is concerned with matters of procedure. In the substance of the Law there were still moot points. These the King could settle, as he did in the case of De Donis (before noticed), where he had to take the reactionary side, and in the case of Quia Emptores (before noticed), where progress won a decided victory. But, perhaps unconsciously, he did the greatest thing for the future of English Law when he called into existence the National Parliament. For, better even than the judges on circuit, the elected members of Parliament knew the customs of the people, and, with the aid of their counsel and advice, future kings could formulate from time to time the rules of English Law. And thus provision was made for the perpetual continuance of that process of collection which had been begun by the King’s justices, and which had to be done over and over again if Law was to keep abreast of national progress. Not until Edward is dead do we find in the statute book the honoured formula which describes the King as enacting “with the advice and consent of the lords spiritual and temporal and the commons in Parliament assembled;”1 but this consummation became clearly inevitable, from the day on which the Model Parliament assembled at Westminster in November, 1295. To explain all that it means it would be necessary to write the comparative history of the States of Western Europe, and to show how the history of England has been so different from the history of France, of Italy, of Germany, and of Spain. Briefly put, to close an already overlong chapter, it meant the creation of that national and political unity which, until quite modern days, was the highest achievement of European statesmanship; it meant the appearance on the world’s horizon of that new star, which was to light the nations on their march to freedom. For the ideals and principles adopted by the English people under the rule of Edward, were not merely the ideals and principles which nerved the arm of the Puritan soldier, and raised the banner of defiance against Napoleon. They were the ideals and principles which, despite the excesses of the French Revolution, struck the fetters of tyranny from the limbs of Western Europe, and breathed the spirit of justice and freedom into the mighty Commonwealths of America and Australia.

[1 ]These passages are taken from “Edward Plantagenet (Edward I), The English Justinian; or The Making of the Common Law,” 1902, pp. 200-227, 332-346 (London and New York: G. P. Putnam’s Sons).

[2 ]A biographical note of this author is prefixed to Essay No. 2.

[1 ]The word “foreigner” has various shades of meaning in the records of the time. Often it merely means a person not a member of the speaker’s immediate locality. But, in these pages, it will be used in its modern sense of a political alien.

[1 ]Legal readers will realise that I have combined into one the original Statute of 1283 and the amending ordinance of 1285. But it would have been pedantic, in a general work, to have separated the two.

[1 ]Mr. Pearson in his admirable England in the Middle Ages (vol. ii., p. 337) suggests, that the Parliament of Easter, 1285, consisted only of the King’s officials. This is incredible in the face of the statement made by Walter of Hemingburgh, that “in that Parliament the King informed the magnates of his intention of visiting Gascony.”

[1 ]An impious Parliament, moved thereto by an impious committee, laid profane hands on the Ark of the Covenant in the year 1887. But it only ventured to remove the merest trappings, leaving the substance untouched—and meaningless.

[2 ]If A, the owner of an entailed estate, wished to sell it to B, he got B to bring an action against him (A), asserting that the land belonged already to him (B), and that A was an interloper. Thereupon A attempted no defence on the merits, but merely pleaded that the estate had been entailed upon him, or one of his ancestors, by C, who had then guaranteed, or “warranted,” its title. This process, technically known as “vouching to warranty,” was repeated as often as was necessary to maintain a decent appearance of truth, but was finally assumed by an impecunious person (usually the crier of the court) who, for the modest fee of fourpence, was willing to take upon himself the responsibility of defending the case. A convenient adjournment allowed the fictitious claimant (B), to “imparl” (or talk) with the fictitious defendant (the crier), and, on the resumption of the trial, the latter failed to appear, having, in all probability, retired to spend his fourpence at the nearest alehouse. Thereupon, after solemn proclamation, he was pronounced in default, the claim of B was established by the judgement of the court (which, of course, no one could dispute), and the disappointed heirs of A were compensated, in theory, by a decree that the defaulting crier should give them lands of equal value. There were heavy fees all through this process, which may perhaps account for its success and complexity.

[1 ]Honorable exception from the criticism implied in this last sentence must always be made for the classical case of George Eliot, who, in the pages of Felix Holt, shewed that she was quite capable of grasping the subtleties of medieval conveyancing.

[1 ]This wholesome rule proved entirely unable to withstand the opposition of two powerful interests: (1) of the Exchequer judges, to whom increased business meant increased fees, and (2) of wealthy litigants, who coveted the special privileges exercisable by a royal litigant, and were willing to pay for them. It was evaded, as every student of our legal history knows, by the use of transparent fictions.

[1 ]Even Henry did not dare to say that it could only be tried in a royal court. But this was, of course, what he desired; and the barons knew it quite well.

[2 ]“The writ, which is called præcipe, shall no longer be issued to any one concerning any tenement, to the loss by any freeman of his jurisdiction.”

[1 ]The Watch is to be kept every night from Ascension Day to Michaelmas. The writer has never been able to understand why the winter nights were left unguarded. Was it because in the winter there was little to steal, or because thieves were too lazy to turn out, or because the health of the Watch would have been injured by the cold weather?

[1 ]The “Conservators” were, like the later “Justices,” local landowners of a certain estate. (See the case of Lawrence Basset, Parl. Writs, I, p. 389.)

[1 ]It was, of course, long after the thirteenth century that Germany and Scotland received the Roman Law. But the fact is none the less striking on that account.

[1 ]The MS. containing these cases was discovered by Professor Vinogradoff in the British Museum in 1884, and has been lucidly edited by Professor Maitland, under the title of Bracton’s Notebook (Cambridge Press, 1887).

[1 ]The first equivalent seems to be the preamble of the Statute of York in 1318. But the Statute of Carlisle came very near it.