Front Page Titles (by Subject) PART I.: SOURCES - Select Essays in Anglo-American Legal History, vol. 2
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PART I.: SOURCES - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2.
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[Other References on the Subjects of this Part are as Follows:
In Select Essays:
A Prologue to a History of English Law, by F. W. Maitland (No. 1, Vol. I).
English Law and the Renaissance, by F. W. Maitland (No. 6, Vol. I).
The Five Ages of the Bench and Bar, by J. M. Zane (No. 19, Vol. I).
In other Series and Journals:
Quadripartitus, by F. W. Maitland (Law Quarterly Review, VIII, 73; 1892).
The Manuscripts of the Year Books, by L. O. Pike (Green Bag, XII, 533; 1900).
Year Book Bibliography, by Charles C. Soule (Harvard Law Review, XIV, 557; 1901).
Ricardus Anglicus, by Sir Travers Twiss (Law Magazine and Review, 4th ser., XX, 1; 1896).
Bracton’s Notebook, by Paul Vinogradoff (Law Quarterly Review, IV, 436; 1888).
Historical Introductions to the Rolls Series, by William Stubbs, ed. Hassall (London, 1902).
Introductions to the Year Books of Edward II, by F. W. Maitland (Vols. XVII, XIX, XX, Selden Society; 1903-5).
Introduction to The Mirror of Justices, by F. W. Maitland and W. J. Whittaker (Vol. VII, Selden Society, 1893).
Introduction to Bracton and Azo, by F. W. Maitland (Vol. VIII, Selden Society, 1894).
Bracton and His Relation to Roman Law, by C. Güterbock, tr. E. Coxe (Philadelphia, 1886).
Sources and Literature of English History, by Charles Gross (London and New York, 1900).
List of Texts Used, prefixed to Pollock and Maitland’s History, Vol. I, 2d ed., 1899.]
THE SOURCES OF ENGLISH LAW1
THE ANGLO-SAXON SOURCES
IN the history of the English law the Anglo-Saxon sources occupy about the same relative position as the so-called “folk laws” and the other legal monuments of the Frankish period do in the history of the other Western Teutonic nations.1 It is true, the independent development of Anglo-Saxon law was stopped by the Norman Conquest, its operation being superseded by the rule of the Anglo-Norman law. But Anglo-Saxon legal ideas have at least in part survived amidst Norman innovations and shared with them the formation of the historical foundations of the English legal and political constitution.
The importance of the study of the Anglo-Saxon sources is moreover not confined to English legal history, but extends to the legal history of all Teutonic nations. While the Western Teutons of the Continent used the Latin tongue for committing their legal monuments to writing, and while in Germany in statutes and documents German began to replace Latin only in the thirteenth century, the Anglo-Saxon like the North Teutonic sources were written in the vernacular. The insight thus gained into national legal terminology, the wealth of Anglo-Saxon legislation during the five centuries from Aethelberht to William the Conqueror, the purely Teutonic character of the law, uninfluenced by the Roman, and only slightly influenced by the Canon law, and finally the uninterrupted sequence of sources, which elsewhere, between the ninth and thirteenth centuries, reveal gaps that can be supplied only with difficulty,—all these conditions place the Anglo-Saxon legal monuments in the front rank of the sources of information of Teutonic law.
Among the sources of the Anglo-Saxon law we distinguish statutes,—the laws of the Anglo-Saxon kings being the most important of these,—legal formularies, treatises, and documents.
General statutes were enacted in the national assemblies.2 in which the king consulted with the great men of the country (witan), especially with the secular and ecclesiastical dignitaries, regarding the maintenance and strengthening of the peace, and regarding innovations in the laws.
Like the German “folk laws,” the laws of the Anglo-Saxons (dómas, gerædnessa, ásetnysse) have partly created new law, and partly enacted existing customary law. The oldest statutes were occasioned by the conversion of the Anglo-Saxons to Christianity.
The Anglo-Saxon legal monuments may be grouped as follows:
1. The statutes of the Kentians, whose state at the time of Christianization was the leading Anglo-Saxon power. They begin with the domas of King Aethelberht, ninety brief chapters, in part of striking originality, concerning penalties especially for infliction of wounds, wergilds,1 and the law of marital property rights. They date from the time when Augustinus was active in England, more particularly the years from 601 to 604.
Then follow the laws of Hlothære and Eadric (685-6), containing mainly criminal and procedural law, and the laws promulgated by King Wihtræd, 695, at a diet at Berstead, concerning ecclesiastical relations, purgatory oath, and larceny; Wihtræd’s laws utilized the resolutions of a church synod of Hertford of 673; among other matters they contain penalties against idolatry and breach of fast, which presumably go back to the legislation of Earconberht (640-664) which has not come down to us, but is mentioned by Beda.
All Kentish laws have come down to us only in a more recent West Saxon transcript,2 which has not entirely obliterated the traces of the Kentish dialect of the original text.
2. The code of Ine, king of the West Saxons, of the period from 688 to 695. According to the prologue Ine’s code is the result of deliberations had by the king with the witan of his people concerning the salvation of souls and the condition of the kingdom, in order that right law (aéw) and right statutes (cynedómas) might be established and assured. The ecclesiastical enactments precede. Ine’s laws surpass the Kentish in ease of diction, wealth of vocabulary and content as well as in bulk. The fact that Wessex became subsequently caput regni et legum1 explains the regard paid to Ine’s laws by the more recent legislation. They have come down to us not in their original form, but abridged, and in more modern language, as an appendix to the laws of Alfred.
3. From the period of the union of the Anglo-Saxon kingdoms we have:
a. The code of Alfred (871-900), probably from the closing period of his reign, when after many years’ struggles with the Danes, he was able to think again of reconstructing the disintegrated law. The code proper is preceded by an introduction of forty-nine chapters, borrowed from the Bible (Exodus and Actus Apostolorum) and supplemented by some additions by Alfred. In the last chapter of the introduction Alfred declares that he has compiled in his code the laws of Ine, of Offa of Mercia,2 and of Aethelberht of Kent, so far as the same seemed right to him, omitting those that did not commend themselves to him.
Alfred’s code proposes to create a common law of his kingdom. As an appendix for Wessex the code of Ine (mentioned above under 2) was published, the provisions of which partly conflict with Alfred’s own laws. In more recent laws the Alfred-Ine code is often cited simply as dómbók. The rubrical index dates from about 940 at the latest.
b. Alfred’s treaties with the Danes of East Anglia. A treaty of Alfred with King Guthrum of East Anglia (of the years from 880 to 890) contains provisions regarding wergild, oath, guaranty, and trade. A second convention of Alfred with Guthrum, chiefly concerning ecclesiastical relations and precepts, has not come down in the original form, but in an altered version in which it was confirmed or renewed by Edward I after the acquisition of Guthrum’s territory in 921 or somewhat later.
c. Two laws of Edward I; the older one, from the period between 900 and 924, deals with purchase, anefang, real actions, and perjury; the later one was enacted in 924-5 in Exeter for the advancement of public security.
d. From the time of Aethelstan (925 to 940) date: the ordinance of that king regarding tithes; the one regarding alms; the enactments of the diet of Greatley (the most important of Aethelstan’s laws), and the resolutions of Exeter (927 to 937); further, an enunciation of the ecclesiastical and secular notables and of the people of Kent “de pace observanda” (928 to about 938), and the so-called Judicia civitatis Lundoniae (of about 930 to 940), an autonomous statute of the bishops and the gerefas, who through their tenants belonged to the jurisdiction of London, significant chiefly by the fact that they contain the by-laws of the London peace gilds (the oldest Teutonic gild statutes).
e. Edmund’s laws from the years 940 to 946, comprising (α) the resolutions of a London synod convened by him, and (β) a law regarding expiation of homicide and composition of feuds, and (γ) the resolutions of “Culinton” regarding measures against thieves.
f. Edgar’s laws, among which we may probably count an ordinance (946 to about 961) concerning the hundred court (Hundredgemót) and may count with certainty the resolutions of Andover (959 to about 962), and of Wihtbordesstan (962-3).
g. Aethelred’s laws, closing the series of statutes enacted by native kings. We note among them particularly the diet resolutions of Woodstock (980 to 1013), of Wantage (981 to 1012), and of London (991 to 1002), a comprehensive law of 1008 presumably enacted at “Eanham,” the contents being chiefly ecclesiastical and religious; a diet resolution of Bath (992 to 1011) and a constitution of 1014 concerning the particular peace of the churches and the legal status of the clergy, and finally a peace treaty of 991 with Olaf Tryggvason, concerning the peace purchased of the Northmen.
In the history of Anglo-Saxon legislation the transition from the ninth to the tenth century marks an important epoch. The views of the Church exercised a controlling influence upon the older statutes, which is shown equally in the several kingdoms, the Anglo-Saxon ecclesiastical law extending over the whole of England as early as the seventh century. This influence appears among other things in the limitation of capital punishment, and in the consequent extension of the system of amends (see Alfred, Introduction, ch. 49, 7), in the application of penal servitude, in the impaired status of illegitimacy, and in the regulation of proof, from which the duel is barred, while the ordeal of the lot is suppressed and that of the hot water appears only very rarely.
A transformation begins with the close of the ninth century. The Frankish law is drawn upon for Frankish ordeals and Frankish ordeal liturgies. Punishment of life and limb is applied increasingly for the strengthening of the peace. Besides, Anglo-Saxon legislation undergoes significant influences from the North. It pays some regard to the “Danelag,” the domain of the law of the Danes and other Northern folk who had settled in England, and Northern legal ideas and numerous Northern terms of law gain entrance into the Anglo-Saxon law.
4. Decrees and the Code of Cnute. Two several ordinances have come down to us from King Cnute, an ordinance of 1020 which exhorts the people to observe ecclesiastical and secular law, and for this refers to the recognition given to Edgar’s legal constitution (Eadgares lage) by English and Danes in 1018 at a diet in Oxford. The second decree (preserved in Latin translation only) is a manifesto of Cnute of 1027, in which after his expedition to Rome he proclaims the conventions with Emperor Conrad II, with King Rudolf of Burgundy, and with the Pope, and admonishes the people to pay the Peter’s pence, and to render the Church its dues.
Between Christmas, 1027, and 10341 Cnute promulgated at Winchester a comprehensive code, divided into two parts, the first containing ecclesiastical, the second secular statutes (woruldcunde geraednysse). The substance is borrowed for the greater part from older Anglo-Saxon laws from Ine to Aethelred, partly also from Kentish laws. Until the middle of the twelfth century Cnute’s legislation (which obtained no less than three independent translations into Latin) was regarded as the true gospel of the Anglo-Saxon law, in which character it was then superseded by the mythical Laga of Edward.
5. From the tenth and eleventh centuries we have some scattered laws or fragments of laws without names of kings, and legal monuments of which it is controverted and doubtful whether they are statutes or judicial findings or private writings. We should mention particularly a statute concerning the law of the “Dunsaete,” enacted about 935 at an Anglo-Saxon diet with the concurrence of Welsh notables (Waliae consiliarii).1 It was intended for a border district, the country of the Dunsaetes, who are mentioned nowhere else, and should probably be located in Herefordshire; its purpose was to regulate the legal relations between the Dunsaetes of Kymric and English nationality separated from each other by a river (the Wye?), especially with reference to fresh pursuit, anefang, wergild, procedure, and international jurisdiction.
To the tenth century also belong certain anonymous statutes, which relate to the procedure for the ordeal of the iron and the hot water, to arson, murder, and anefang (forfang). The Northumbrian priests’ law, “Nordhymbra preosta lagu” (from between 1028 and about 1060), concerning the extinction of paganism and the ecclesiastical constitution of the Danes around York is an autonomous enactment of the Church.
The Anglo-Saxon laws were officially written on separate parchment sheets, none of which have been preserved. Many a law may have been irretrievably lost. What has come down to us of laws and other Anglo-Saxon legal monuments, comes chiefly from manuscript collections which were made in ecclesiastical centres, which do not go back of the eleventh century, and which do not always reproduce language or arrangement faithfully. For our knowledge of some pieces we are indebted to Latin translations made in Anglo-Norman times.
6. A good insight into procedure is afforded by the preserved formulae, especially of oaths, of pleas to real actions, and of ordeals. A form of the coronation oath dates in its Anglo-Saxon version probably from the years 975 or 973 while the Latin text is certainly much older.1
7. Of private writings the most important may be mentioned.
a. The Rectitudines singularum personarum, the work of a bailiff concerning the rights and duties of the tenants of a noble estate. It was probably composed in the first half of the eleventh century.2
b. The treatise of the wise steward (scadwis gerefa), of about 1025, pointing out the matters requiring the attention of one in that employment.
c. The treatise (written by a clergyman) “Be gridhe and be munde,” concerning the privileged safety according to Kentish, South English, and Danish law.
d. The notes regarding the amounts of the wergild among the “Northfolk,” and in Mercia, and regarding the manner of its payment.
e. A treatise regarding espousals and marriage of about 1030.
f. An ecclesiastical instruction regarding the duties of a judge.3
8. Documents—both royal and private—from the time before the Conquest have come down in large numbers, partly in Latin, partly in Anglo-Saxon, among them, it is true, many spurious or doubtful pieces, the verification of which is rendered difficult through the absence of a settled diplomatic practice among the Anglo-Saxons.
Of especial significance was the title deed of real estate (bóc), land, if acquired by bóc, being called bócland (in distinction from the folkland which was acquired and possessed according to folk law1 ) and being alienated and transferred by delivery of the original title deed.
9. We should regard further as sources of Anglo-Saxon law, at least in part, several law books in the nature of compilations, which do not belong to the Anglo-Saxon age but to the twelfth century, written, not in Anglo-Saxon, but in Latin, but meaning or pretending to present Anglo-Saxon law, and partly composed for the purpose of giving to the modern law the appearance of being identical with the old one.
The following are Anglo-Latin law books:
a. The Quadripartitus.2 This was the title of a legal treatise, which, according to the original plan of the author, was to be divided into four parts, upon the contents of which he remarks in a bombastic preface: Primus liber continet leges anglicas in Latinum translatas; secundus habet quaedam scripta temporis nostri necessaria; tertius est de statu et agendis causarum; quartus est de furto et partibus ejus.
The first book contains a Latin version made by the compiler of a nearly complete collection of Anglo-Saxon legal documents. It is not merely highly valuable for the understanding and criticism of the Anglo-Saxon texts, but has been the exclusive means of preserving many very important pieces. Notwithstanding the frequent use of Anglo-Saxon legal terms, it bears clear traces of Frankish terminology (so it employs the word “intertiare” for anefang instead of the Anglo-Saxon befón or aetfón, it calls the outlaw forisbannitus, and translates “meldefeoh” by “delatura”).
The second book begins with a special preface, and constitutes a collection of state papers of the time of Henry I, containing his coronation charter of 1100, records of Archbishop Gerhard of York, and the decree of Henry I “ut comitatus et hundreda sedeant” of about 1110.
The third and fourth book, which the preface announces, are missing.1
The author probably used the material which he intended for these books, or at least for the third book, in the subsequent composition of a new legal treatise (the Leges Henrici). The two extant books were completed in 1114. The compiler, whose name we do not know, was a secular clerk of Continental descent who entered into relations with Archbishop Gerhard of York, presumably into his service, subsequently became crown judge, and as such wrote legal treatises for the use of his colleagues.2
b. The Leges Henrici, a work written by the author of the Quadripartitus, into which he transferred from the latter treatise the brief introduction and the coronation charter of Henry I of 1100, which heads the book. The title Leges Henrici may be a remnant of the original title. The book contains partly Anglo-Saxon, partly Norman law. For the former the author used the first book of the Quadripartitus, more particularly Cnute’s code, which appeared to him as the principal source of the Anglo-Saxon law then in force. His knowledge of the Norman law may be due to his practical experience as justitia regis. He used, moreover, parts of Frankish books of penances, the Breviarium Alaricianum from the Epitome Aegidii, passages from the Lex Salica and the Lex Ribuaria and Frankish capitularies, from the patristic literature St. Augustine, of canon sources directly or indirectly Pseudo-Isidore and Yvo of Chartres. Now and then the brings Latin and Anglo-Saxon proverbs. The work is deficient in arrangement and clearness, and suffers from numerous contradictions and repetitions. The style is full of mannerisms and far-fetched antitheses, and changes from redundancy to obscure brevity. In spite of this the work is an invaluable source for the knowledge of the period of fermentation which in the legal history of England preceded the full development of the Norman law. The work was written between 1114 and 1118.
c. The Instituta Cnuti aliorumque regum Anglorum,1 a Latin compilation of Anglo-Saxon laws, the author of which is likewise a secular clerk. The first two parts contain in the main passages from Cnute’s code (so-called Versio Cnuti Colbertina), while the third part, which went formerly by the misleading name of Pseudo-leges Cnuti regis, compiles excerpts from Alfred-Ine and other Anglo-Saxon sources, among others two passages the Anglo-Saxon original of which has not been preserved. The whole compilation probably dates from the first decade of the twelfth century.
d. The Consiliatio Cnuti,2 likewise a Latin and almost complete translation of Cnute’s code, preceded by an independent preface, and followed by an appendix which consists of the statutes (mentioned under 5, supra) concerning arson, murder, forfang, and of the ordinance regarding the hundred court (3, f, supra). We gather from the ecclesiastical tendencies that the author was a clergyman, from the blunders in translation that he was no Anglo-Saxon, from the avoidance of technical legal terms, and the fondness for classical expression, that he was not a practical lawyer. The work, which was based on a lost Anglo-Saxon legal manuscript, was written in the first half of the twelfth century, presumably between 1110 and 1130.
e. The so-called Leges Edwardi Confessoris.3 This title has been used only since the seventeenth century for a legal treatise written from about 1130 to 1135, which in its introduction presents itself as the result of an inquest concerning the Anglo-Saxon law which William the Conqueror undertook in the fourth year of his reign, by summoning from each county twelve notable Anglo-Saxons as jurors, who were to give evidence regarding the law. The law thus alleged to be proven is taken to be the law of Edward the Confessor. But the author does not sustain his part, for in the course of the exposition he drops the form of the jury inquest. The chequered contents of the book show that we have before us a private treatise, which presents the law in force toward the end of the reign of Henry I, and attributes to Norman institutions an Anglo-Saxon origin. This abundant source of law has come down in two texts, one shorter, and one longer, the latter being an enlargement and explanation of the former.1 The work attained great and undeserved authority. In the more recent Anglo-Norman period it was considered as the chief source of Anglo-Saxon law.
f. The Constitutiones Cnuti regis de foresta,2 are a forgery. The name is assumed by a work prepared with the aid of the Instituta Cnuti. It claims to be a forest statute of Cnute. The forest law which it presents is not Anglo-Saxon, but the early Anglo-Norman established by William the Conqueror. Its counterfeit character is revealed by the employment of Anglo-Norman legal terms, by the Norman substance of its law, and by the deliberate alterations which disfigure the passages taken from the Instituta Cnuti. The fabrication dates from the twelfth century, probably toward the end of the reign of Henry II, about 1185, and is the work of a high forest official, who wished to cover the harsh and unpopular Norman forest law by the name of Cnute, and to produce the impression that it was customary Anglo-Saxon law.
Editions and Bibliography. The first collection of Anglo-Saxon laws was published by William Lambarde in 1568 under the title: Archaionomia sive de priscis Anglorum legibus. An enlarged and more critical edition, which in the older literature was used for references to Anglo-Saxon laws, was furnished by David Wilkins (Wilke), Leges Anglo-Saxonicae, 1721, reprinted in Canciani, Barbarorum leges, iv, and in Houard, Traités sur les coutumes Anglo-Normandes. This edition was superseded by the one arranged by the Record Commission: Ancient Laws and Institutes of England, London, 1840, begun by R. Price, after his death completed by Thorpe, in folio, and also in two octavo volumes. Upon this is based the edition by Reinhold Schmid Gesetze der Angelsachsen, 2d ed., 1858, with German translation, excellent introduction on the history of the sources, and with a valuable glossary. The Alfred-Ine code was separately published by M. H. Turk (The legal code of Alfred the Great, 1893). The best critical edition, the only one that should now be used, was prepared with the aid of no less than 180 manuscripts, by F. Liebermann (Die Gesetze der Angelsachsen, i, 1903). The editor offers beside the Anglo-Saxon texts a literal German translation. Of the second volume so far only the dictionary has appeared (1906). The legal glossary, and a third volume to be devoted to comments, are still to be expected.
A collection of documents from the Anglo-Saxon times was furnished by Kemble, Codex diplomaticus aevi Saxonici, 6 vols., 1839-1846; also by Benjamin Thorpe, Diplomatarium Anglicum aevi Saxonici, 1874 (with a translation of the Anglo-Saxon texts). An enlarged edition, corrected in part from the manuscripts, but deficient in discrimination between genuine and spurious pieces, was prepared by W. de Gray Birch, Cartularium Saxonicum, i, 1885, ii, 1887, iii, 1893. Valuable from a philological point of view is John Earle, Hand-book to the Land Charters and other Saxonic Documents, 1888, a selection of Anglo-Saxon documents with introduction, glossary, and index; as a work of legal history it is not up to date, since it ignores the modern researches in Anglo-Saxon documents. Nineteen early charters and documents are excellently edited in the Anecdota Oxoniensia: The Crawford Collection, with instructive notes by Napier and Stevenson, 1895. Three unpublished Northumbrian documents of about 1100 were edited and commented on by Liebermann in the Archiv für das Studium der neueren Sprachen und Literaturen, 111, p. 175. Facsimiles of Ancient Charters in the British Museum were published by the order of the Trustees, 1873 sqq. Selected passages from the sources of legal and general history are given in English translation or the Latin original, by Stubbs, Select Charters and other Illustrations of English Constitutional History, 2d ed., 1874.
Bibliography. On Anglo-Saxon legal sources see the Introduction in Schmid, Gesetze der Angelsachsen. Especially as far as the Anglo-Latin books are concerned, it now needs some correction from the critical researches of Liebermann, which have been indicated above in the notes. See Liebermann’s own announcement of the first instalment of his edition, in the Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, german. Abteilung, xix. 174. An inquiry concerning the Danelag, which throws new light upon the history of some sources, but on the whole overestimates somewhat the influence of the northern law, was given by Steenstrup, Normannerne, Vol. 4, 1882.
With reference to Anglo-Saxon documents see Heinrich Brunner, Zur Rechtsgeschichte der romischen und germanischen Urkunde, 1880, i. 149, sqq.: Das angelsächsische Landbuch. Some points are treated more fully by Aronius, Diplomatische Studien über die älteren angelsächsischen Urkunden, 1883.
For Anglo-Saxon legal history see the following:
Kemble, The Anglo-Saxons in England, 2 vols., 1849, revised by Birch, 1876, translated into German by Brandes, 1853-1854, 2 vols.—Konrad Maurer, Ueber angelsächsische Rechtsverhältnisse, in the Kritische Ueberschau, i, ii, iii, 1853 sqq.—Phillips, Geschichte des angelsächsischen Rechts, 1825.—The chapters dealing with the subject in Gneist, Geschichte des englischen Verwaltungsrechts, 2d edition, 1867.—Geschichte und heutige Gestalt der englischen Communalverfassung oder das Selfgovernment, 2d edition, 1863.—Selfgovernment, Communalverfassung und Verwaltungsgerichte in England, 3d edition, 1871, and Englische Verfassungsgeschichte, 1882.—Sir Francis Palgrave, The Rise and Progress of the English Commonwealth, 1831, 1832, 2 vols.—Stubbs, The Constitutional History of England in Its Origin and Development, 3 vols., 1874-1878, based on thorough historical research, and incorporating the results of German studies in legal and general history.—Essays in Anglo-Saxon Law, Boston, 1876, containing: The Courts of Law by H. Adams; The Land Law by Cabot Lodge; The Family Law by E. Young; The Legal Procedure by L. Laughlin.—Pollock and Maitland, History of English Law before the Time of Edward I, 1895, 2 vols., an epoch-making work, which has placed the earlier English legal history upon a new foundation; see Political Science Quarterly, xi. 537, Sept., 1896.—H. Munro Chadwock, Studies on Anglo-Saxon Institutions, 1905.
THE SOURCES OF THE ANGLO - NORMAN LAW
From William I to Henry II, 1066-1154.—The conquest of England was the result of the political as well as the military superiority of the Norman state over the declining Anglo-Saxon constitution. Just as the antiquated cuneiform battle order of the Anglo-Saxon infantry, of which the battle of Hastings saw the last attested application among West Teutons, could not cope with the then modern art of war of the Norman knighthood, so the feudal order of Normandy secured an ascendancy over the Anglo-Saxon polity, the communal foundations of which had been submerged by unfree estates and oppressive servitudes, while it was unable to develop into a proper feudal tenure, and so in the struggle between the two legal systems which the Conquest brought about, the Norman law proved the stronger. Principles of Franco-Norman constitutional and administrative, private, criminal, and procedural law gained an entrance into England, and in consequence of the free play which the king had there for systematic organization, were, like the feudal system, developed and accentuated to a degree which they did not attain on their native soil.
The Normans applied in their relations toward each other the Norman law. For the relations between Normans and Anglo-Saxons special provisions were made. To the Anglo-Saxons the unimpaired continuance of their own law was assured in principle, and at the very beginning William the Conqueror affirmed the laga Edwardi, the law existing under Edward the Confessor; but the result was as usual when a concession is made in principle. It was ignored in practice, for the force of circumstances was stronger than the rule laid down. Normans constituted the higher ranks of society and possessed themselves of the large estates. They thronged the court of the king, while the Saxon nobles sulkingly kept aloof from the new order and eventually perished in futile insurrections. Soon ecclesiastical and secular offices were filled with Normans. Normans formed the curia regis, and thus the highest court was given over to the influence of the Norman law,—a fact all the more significant, as in England the practice of the King’s Court, through the unexampled centralization of justice, completely dominated the development of the law.
This course did not appear in full clearness immediately after the Conquest. The Normanization of the country and of its law was gradual. Under William the Conqueror legislation still moved in the grooves of Anglo-Saxon tradition. The compilations of Anglo-Saxon law, prepared under Henry I (see supra) prove on the one hand the continued existence of Anglo-Saxon law, on the other the struggle in which it had been engaged, not always successfully, against its Norman transformation. First in part, and then altogether the Latin supersedes the Anglo-Saxon as the language of the law, alternating with French from the time of Edward I and yielding to it completely since Richard II.
Of William the Conqueror (1066-1087) we have only three short legislative acts: 1. Willelmes cyninges asetnysse of between 1067 and 1077, a law in the Anglo-Saxon language regulating the method of proof in trials between Anglo-Saxons and Normans. The Anglo-Saxon is called englisc man, the Norman frencisc man and his law nordhmandisc lagu. 2. The Espiscopales Leges (1070-1076), a statute concerning the separation of ecclesiastical from secular jurisdiction, whereby, contrary to Anglo-Saxon custom, Continental principles were introduced into this matter, and ecclesiastical causes (quae ad regimen animarum pertinent) were withdrawn from adjudication by the secular courts. 3. A charter for the portgerefa and the citizens of London (1066 to 1075), who are guaranteed the legal status which they had enjoyed under Edward III.
The so-called Leis Willelme1 are not a code of William I, but a private treatise. They introduce themselves as the laws and customs, granted by King William to the English people after the Conquest of England, and as being the same as those which his cousin King Edward had administered before him. The book has come down to us in French and in Latin text, the latter being a translation from the French made about 1200. The first division (ch. 1-28) contains chiefly Anglo-Norman laws, based perhaps in part upon genuine statutes of William I; it takes some account of the Danelag, and among other things regulates the liability of the hundred for the killing of Normans. Some chapters may be traced back to Cnute’s code. The second division (ch. 29-52) offers a selection of laws from Cnute’s code, and besides rules of Roman law (ch. 33-38), borrowed directly or indirectly from the Digest and Code of Justinian. The author of the Leis Willelme sometimes estimates by shillings of Norman currency, and sometimes by solz engleis, Mercian shillings at four dimes (denars). The work was compiled between 1090 and 1135, probably in the first decades of the twelfth century, in East Mercia, for the purpose of giving an exposition of the law in force under William I.
The Articuli Willelmi are likewise a private compilation. They are ten articles under the heading: Hic intimatur quid Willelmus rex Anglorum cum principibus suis constituit post conquisitionem Angliae. They contain laws going back to William, and in part are based upon the Instituta Cnuti. The work was written in the years between 1110 and 1135. This part entitled “Hic intimatur” was under King Stephen joined together with the Leges Edwardi Confessoris retractatae (see A9,e supra) and with a Genealogia ducum Normannorum, into a larger compilation which may be designated as “Tripartita.”1 Under Richard I, in 1192-3, it was translated into old French. On the basis of the Tripartita, the Quadripartitus, and of other sources, a London author about 1210 made a compilation containing interpolations and falsifications in the interest of the city of London. The piece “Hic intimatur” is incorporated in this compilation with many additions in seventeen chapters.2
Toward the end of the reign of William I, an official inquest resulted in the production of the Domesday Book, a detailed record (descriptio) of the real property, its tenants, its burdens and its value. Drawn up as an assessment roll for fiscal purposes according to counties and manors, it contains together with statistical data valuable findings on local customs. It was officially edited in 1783, 2 vols. fol., to which were added two supplementary volumes of the Record Commission in 1816. See Sir H. Ellis, A General Introduction to Domesday Book, 2 vols., 1833. Lappenberg, Geschichte Englands, ii. 143 sqq. Gneist, Englisches Verwaltungsrecht, i. 122. In 1886 England commemorated the eighth centenary of its tax record by a series of lectures, which were edited with a bibliography under the title, Domesday Studies, by Edward Dove, in 1888. The most valuable contributions, from the point of view of legal and economic history, to the understanding of Domesday Book were made by Maitland in his profound treatise, Domesday Book and Beyond, three essays on the early history of England, 1897, and by Round, Feudal England, 1895.
We owe to the fiscal administration of the Normans in England another important legal monument, dominated by the fiscal point of view, but, considering the influence of fiscal considerations upon the whole political and legal constitution, also instructive as to the existence of legal rules and institutions, namely, the accounts of the Exchequer, which in England date farther back than in Normandy, though with a less degree of specialization of items. They are commonly called Rolls of the Pipe, Rotuli Pipae. The oldest dates from the reign of Henry I, and was edited by Jos. Hunter under the title: Magnus Rotulus Scaccarii vel Magnus Rotulus Pipae de anno 31 regni Henrici I (ut videtur), 1130-1131, 1833.
A useful compilation of older Anglo-Norman documents relating to procedure, a corpus placitorum for the time from William the Conqueror to 6 Richard I, is furnished by Bigelow, Placita Anglo-Normannica, law cases from William I to Richard I preserved in historical records, 1879. The collection, which is taken entirely from printed sources, is composed chiefly of accounts of lawsuits from English historians, of royal writs, and of procedural passages from Domesday Book and the Exchequer Rolls. See H. Brunner in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, ii. 202 sqq.
From Henry II to about 1300.—The development of the law received a strong impulse under Henry II (1154-1189), who had been Duke of Normandy since 1150, and Capitalis Justitiarius Angliae in the last years of Stephen. From his reign date the epoch-making constitutions of Clarendon, 1164, and of Northampton, 1176. It was Henry II who introduced the jury of inquest,1 theretofore employed only in exceptional cases, as a regular mode of trial in civil procedure, thereby laying the foundation stone of English procedure as well as of substantive private law. In connection with this reform he established a special procedure in possessory actions by an assise which was promulgated probably about 1166. Henry’s reforms organized the procedure by writ (see 2 (a) infra), and probably also the practice of enrolling judgments; they inaugurated the absolute subordination of inferior jurisdictions to the royal judicial power. Renewing an earlier occasional practice, Henry established the institution of itinerant justices, justices in eyre, dividing the realm into large circuits, for the purpose of the delegated exercise of the prerogative royal jurisdiction, a measure to which we find a historical analogy in the organization of the regular missi by Charles the Great. From the time of Richard I, 1189-1199, we have the Capitula Itineris, the instructions given to the itinerant justices in 1194 and 1198, which in form and context recall the Karolingian Capitulare Missorum. This innovation did not disturb the unity of the curia regis as the centre of justice and administration, for the court held by the justices in eyre was likewise curia regis. Yet already Glanvill contrasts the justiciarii itinerantes with the capitalis curia regis (viii. 5 § 4). The latter is not yet outwardly separated from the scaccarium, but under Henry II there is differentiated from the officials of the curia regis a special group, the members of a board of judges residing “in banco.” Later on the exchequer, as organ of fiscal administration and jurisdiction, is formally severed from the king’s court, and the latter is divided into the Court of King’s Bench and the Court of Common Pleas. This division exists in fact, though not as a matter of technical nomenclature, not later than the reign of John. At that time a distinction is made between (1) placita coram rege (ipso) or quae sequuntur regem, and (2) placita de banco, which are held at definite terms by the justiciarii de banco at Westminster (or London). The placita coram rege represent what is called later on King’s Bench, the placita de banco, the later Common Bench, Court of Common Pleas. Under Henry II, we find also the beginnings of systematic exposition of the Anglo-Norman law, which in the subject-matters of its treatment, the fiscal administration of the scaccarium and the practice of the King’s Court, reveals the sources from which it received its impulse.
The legal sources of this age may be divided into statutes, judicial sources, records of fiscal administration, and legal treatises.
1. Statutes.—English jurists divide the bulk of their law into statute law and common law, according to its derivation from legislative enactment or from custom. However, the division is not consistently maintained, and the term common law is used in distinction from other divisions. The older enactments of the Norman kings are regarded as common law. They are either Constitutions, Assises, promulgated by the king after consultation with the great men of the land (assisa means assembly, session, judgment, or statute as the result of session or assembly, and also a certain form of procedure introduced by royal statute), or charters which are royal grants to remedy grievances. The official edition of the statutes prints as charters those of Henry I of 1100, of Stephen de libertatibus ecclesiae anglicanae et regni of 1136 and sine dato, of Henry II without date, of John “ut liberae sint electiones [of prelates] totius Angliae” of 1214, the Articuli of the barons, the Magna Charta of John of June 15, 1215,1 wrested from the king by the barons, and based on the Articuli, and its confirmations (in part modifications) of 1216, 1217, 1225, the latter furnishing the text for the subsequent frequent confirmations; moreover the Charta de Foresta of 1217, confirmed in 1225.
The statutes proper begin with the Provisions of Merton of the 20th Henry III, 1236, in the statute books regularly preceded by the Magna Charta and the Charta de Foresta. Of the time of Henry III we should also mention the important Statutum of Marleberge, Statute of Marlborough, 1267.
Under Edward I (1272-1307), the English Justinian, the number of statutes increases so much that an enumeration of even the most important seems impracticable. Through the many reforms of the reign of Edward I, England obtained the essential foundations of her subsequent constitution and the organic forms of her legislation. A permanent or “continual” council, consisting of the highest officers of church and state (the later Privy Council) was formed as “the centre of government.” By special royal summons prelates and barons were from time to time joined with this council, and with it formed the Magnum Concilium, the Great Council. Under Edward I it also became the custom to convene delegates of the communitates, representatives of counties and boroughs to consult on extraordinary contributions, and shortly after also to confirm laws and to remedy grievances, who since Edward III constituted a separate body. “And thus was formed the frame of an upper and a lower house, by the advice and consent of which the Crown worked out the organic legislation of the current period.” (Gneist, Self-government, 2d edition, i. 146.)
Editions.—In the official English edition and in Schmid’s book, and also in Liebermann’s (who also gives the decrees of Henry I), the laws of William I are placed with the laws of the Anglo-Saxons. The subsequent laws up to the beginning of the collections of English statutes have been brought together by Henry Spelman in the Codex legum veterum statutorum regni Angliae ab ingressu Guilelmi I usque ad a. 9 Henrici III, a compilation of fragments from the scriptores, of royal ordinances, privileges, constitutions, etc., which have been reprinted from the posthumous papers of the author by Wilkins in his Leges Anglo-Saxonicae, and subsequently by Houard in the second volume of his Anciennes Loix. Better texts, but without critical notes, are now to be found in the more accessible compilation of William Stubbs in his Select Charters, 2d ed., 1874. Valuable as this handy collection is, it can still be considered only as a provisional means of information, and a critical edition of the older Anglo-Norman assises continues to be urgently needed.
The statutes proper down to 1714 appeared from 1810 to 1824 in an official edition: “The Statutes of the Realm from original Records and authentic MSS., printed by command of his Majesty King George the Third in pursuance of an address of the House of Commons of Great Britain, from the earliest times to the end of the reign of Queen Anne,” 10 vols. fol., including an alphabetical index, also a chronological index, 1828.
The most important older statutes have received a famous commentary in Coke’s Institutes of the Laws of England, Part II. Among the numerous editions for practical use which omit antiquated statutes may be mentioned: The Statutes at large from Magna Charta to the Union of the Kingdom of Great Britain and Ireland, first by Ruffhead, in later editions by T. E. Tomlins and J. Raithby, London, 1811, 4°, 10 vols.
2. Judicial Sources. (a) Writs (Brevia). There arose in the English curia regis, as in Normandy, an official procedure (capable of taking the place of the old formal trial by duel and oath), which in principle was confined to the curia regis, and which was begun and in part carried on by royal mandates (writs, brevia). At first these writs were a favor granted for money by the king for each particular case. From the time of Henry II they became a generally available remedy, the royal chancery receiving permanent instruction to grant in certain cases these writs in fixed forms to the parties on demand. The legal import of writs was different according to their purpose. Where the purpose was to remove a suit to the king’s court, the defendant was summoned by a writ which required the vicecomes to command the defendant to make restitution or to show cause before the king’s court why not. Such a writ is called writ of praecipe and has its prototype in the Frankish indiculus commonitorius. Or the vicecomes was required by the writ to select and summon a jury (recognitio) to determine some question of fact (breve recognitionis). There are numerous other occasions for writs. It is a peculiarity of the English law that real actions even in a popular court could be started only by a royal writ; for from the time of Henry II it became settled, that in the manorial courts in controversies regarding land the defendant did not have to answer in the absence of a royal writ requiring the lord of the court to see that right be done, failing which the vicecomes would see to it (breve de recto, corresponding to the Frankish indiculus de justitia). In so far as writs served to start a suit, a procedure was developed in England which may be compared to the formulary procedure of the Roman law. The actions of the English law became specialized by the forms of the writs, so that Bracton was able to say: tot formulae brevium, quot sunt genera actionum. In the thirteenth century the king lost the right arbitrarily to create new writs. Even according to Bracton a writ is to be deemed void if obtained contra jus et regni consuetudinem. On principle, he says, the issue of novel writs requires the assent of the council, but it is sufficient if the great men offer no opposition. This view, which became more rigorous with the growing importance of Parliament and impeded the free development of writs, led to the distinction between brevia formata and brevia magistralia. For the former the forms are legally fixed, the latter are granted by the Chancery in consimili casu, i. e. in cases analogous to those already provided for, quia in novo casu novum remedium est apponendum, a sort of actiones utiles,—a procedure expressly sanctioned by the second statute of Westminster, 13 Edw. I, c. 24, 1285. Another distinction was made between brevia originalia, which started the lawsuit, and brevia judicialia, which intervened in its further course. Numerous forms of writs are found in Glanvill and in the law books of the thirteenth century; especially also in the Statutum Walliae of 1284, which introduced English procedure into Wales. As to the older writs, see H. Brunner, Entstehung der Schwurgerichte, 1872; as to the older register of writs see Maitland, the History of the Register of Original Writs in Harvard Law Review, ii, iii, 1888, 1889.
(b) Records, i. e. memoranda of the proceedings and decisions of courts (records proper: of royal courts), which were taken and kept in the several courts as authentic memorials of judicial acts. The systematic enrolment of the proceedings of the king’s court seems to be one of the great reforms of the last years of Henry II (according to Maitland). From the rotuli placitorum we distinguish fines, documents regarding compromises entered into in the king’s court with royal or judicial leave on the basis of an actual or fictitious lawsuit. They are also called finales concordiae (quae finem imponunt negotio) or pedes finium, a term explained by reference to the lower part of the instrument (the foot of the fine), but which is probably due to a mistranslation of the old French pees (pax). The rotuli placitorum of the time of Richard and John, without distinction of series, are known as coram rege rolls. The rotuli placitorum of the time of Henry III are divided into three groups: (1) coram rege rolls; (2) assise rolls; (3) Tower coram rege rolls and Tower assise rolls—a distinction based upon the fact that the rotuli of the first two series were preserved in Westminster, those of the third series in the Tower.1
Editions. An insufficient selection from the older records, much too meagre for legal historical investigations, was made from 1619 to 1626 and published in 1811 under the auspices of the government as “Placitorum in domo capitulari Westmonasteriensi asservatorum abbreviatio temporibus Ric. I, Joh., Henr. III, Edw. I, Edw. II.” An edition of complete records was furnished 1835 by Palgrave: Rotuli Curiae Regis, Rolls and Records of the Courts held before the King’s Justiciars, etc., vol. i: from the sixth year of King Richard I to the accession of King John; vol. ii: the first year of King John. Palgrave edited only a portion of the plea rolls of the time of Richard I. The Pipe Roll Society has undertaken to fill the gaps. Under its auspices Maitland published, 1891, “Three Rolls of the King’s Courts in the Reign of King Richard the First, ad 1194-1195.” We owe besides to Maitland the edition of the Select Pleas of the Crown, vol. i (1200-1205), 1888, in the publications of the Selden Society, vol. i, a collection of placita coronae, i. e. of criminal cases reserved to royal jurisdiction, with introduction and translation. Select civil cases from 1200 to 1203 were published by William Paley Baildon, Select Civil Pleas, vol. i, 1900, (Selden Society, vol. iii). We shall note below (4, c) as Bracton’s Note-book a collection of cases of the time of Henry III, made on the basis of official rotuli for the personal use of the jurist Bracton. Pleas of the Crown for the County of Gloucester (1221) were edited by Maitland, 1884, Extracts from the Plea Rolls (1294-1307), by Wrottesley, 1888 (William Salt Archaeol. Society for Stafford). Select Pleas of the Forest, placita forestae, i. e. inquests and proceedings concerning hunting and forest offences of the 13th century, together with an introduction on forest law, forest administration, forest jurisdiction, and a glossary of technical terms, are given by G. I. Turner; Select Pleas of the Forest, 1901 (Selden Society, vol. xiii); Select Cases from Coroners’ Rolls from the years 1265 to 1413, with a summary of the history of the office of coroner1 are edited by Charles Gross, 1896 (Selden Society, vol. ix). The following are editions of the Fines: Fines sive pedes finium in turri Londinensi asservati (1216-1272), ed. Roberts, 2 vols., 1836; Feet of fines of the reign of Henry II and of the first seven years of the reign of Richard I (1182-1196), 1894 (Pipe Roll Society, vol. xvii); Feet of Fines of the reign of Richard I, years 7-10 (1196-1199), 1896-1900 (Pipe Roll Society, vols. xxi, xxiii, xxiv).
The manorial courts, too, began to keep records in the first half of the 13th century. Select Pleas in manorial and other seignorial courts of the time of Henry III and Edward I were edited in the publications of the Selden Society (vol. ii) by Maitland in 1889, with an introduction which is valuable for the history of manorial jurisdiction. The publication, The Court Baron together with select pleas from the Bishop of Ely’s Court of Littleport, edited by Maitland and Baildon, 1891 (Selden Society, vol. iv), contains in its fifth chapter selections from the rolls of the Curia episcopi Eliensis apud Littleport of the years 1285 to 1327. The first four chapters of this publication contain forms for proceedings and judicial acts in manorial courts.2
Numerous records in the English archives still await publication. The following may serve as guides to the mass of unprinted matter: Ewald, Our public records, a brief hand-book to the national archives, 1873; Rye, Records and record searching, 1888; Scargill-Bird, Guide to principal documents in Public Record Office 2. ed. 1896.
(c) Reports, i. e. professional memoranda, not, like the records, serving as official memorials of judicial acts, but giving only secondary attention to the concrete facts of a particular case, and intended to give information of points of interest to legal practitioners. They therefore contain only a brief narration of facts, upon which the records lay the principal stress, but give more fully the arguments of counsel and the grounds of decision.1 The Reports were written by officially appointed and paid reporters. It is uncertain when this was first done. The Reports from the time of Edward II to Henry VIII, barring several gaps, are printed under the name of Year Books.
Editions. The first collective edition appeared 1678. As to the defects of the earlier editions see Cooper, An Account of the most Important Public Records, 1832, ii. 391 sqq. Earlier reports of the reign of Edward I (20-22, 30-35) and Edward II (11-14) have been edited with an English translation of the Anglo-French texts in the Rerum Britannicarum medii aevi scriptores under the title: Year Books of the Reign of Edward I (or Edward II), edited and translated by Alfred J. Horwood (those of Edward II by L. O. Pike), 1863 sqq. A critical edition of the earlier Year Books has recently been undertaken by the Selden Society. Up to this time three volumes have appeared. They relate to the years 1, 2 and 3 Edward II (1307-1310), and were edited by Maitland, 1903-1905, vol. xvii, xix, xx of the Publications of the Selden Society.
3. The Rotuli Scaccarii. Of the above mentioned Exchequer Rolls there has been preserved a complete series from the reign of Henry II which affords valuable glimpses into the history of Henry’s great legal reforms.
Editions. In part they are edited by the Record Commission, in part their publication has been undertaken by the Pipe Roll Society, which was organized for the purpose of publishing the Pipe Rolls and similar documents of the time before 1200. The following have so far appeared: The Great Rolls of the Pipe for 2, 3, and 4 Henry II, 1155-1158, ed. Hunter, 1844; The Great Rolls of 1158 to 1178, published 1884 to 1907 by the Pipe Roll Society (the third volume contains an Introduction to the Study of the Pipe Rolls); The Great Rolls of the Pipe for 1 Richard I, 1189-1190, ed. Hunter, 1844; Rotulus Cancellarii vel antigraphum Magni Rotuli Pipae de tertio anno regis Johannis (1201, 1202), 1833. Other rotuli are: The Rotuli de dominabus et pueris et puellis de donatione regis (concerning fees under the king’s wardship), ed. Grimaldi, 1830; the Rotuli de Liberate ac de Misis et Praestitis regnante Johanne, cur. Th. Duffus Hardy, 1844; Rotuli de Oblatis et Finibus . . . Temp. Regis Johannis accur., Th. Duffus Hardy, 1835. The entries of the Liberate Rolls, which concern loans made by English kings of Italian merchants in the thirteenth and fourteenth centuries, are explained and collated in a treatise by E. A. Bond, Extracts from the Liberate Rolls, in the 28th volume of the Archaeologia published by the Society of Antiquaries of London (1840). The treatise gives valuable information regarding the loan system of the English kings and the history of securities.
4. Legal Treatises. (a) The Dialogus de Scaccario (“De necessariis observantiis scaccarii dialogus”), a treatise written in form of a dialogue concerning the constitution and administration of the Royal Exchequer, valuable also for private law and procedure. “It bears witness to the early maturity of administrative processes in the Norman constitution, a remarkable evidence of the spirit of centralization and the bureaucratic conception of the state, without a parallel in the Middle Ages” (Gneist, Verwaltungsrecht, i. 201). The Dialogus was written in 1178 or in the beginning of 1179 by Richard FitzNigel, Archdeacon of Ely, and later Bishop of London. As the son of a high treasury official, the author had grown up in the atmosphere of the Exchequer, in which for forty years he filled the office of treasurer. His statements are based upon an accurate knowledge of the practice of the scaccarium and are intended to serve as a guide to its officials. By his desire to systematize, however, and from political motives, the author was led to make statements not corresponding to the facts.
Editions. The Dialogus is printed as an appendix to Madox. The history and antiquities of the Exchequer of the Kings of England, London, 1711 and 1769. A reprint with somewhat amended text is found in Stubbs, Select Charters, p. 168 sqq. Much improved is the text in the recent critical edition by Arthur Hughes, C. G. Crump, and C. Johnson: De necessariis observantiis scaccarii dialogus, 1902, with introduction and copious commentary. A careful study regarding the author, and the origin and character of the work, with a summary of its contents, is Liebermann, Einleitung in den Dialogus de Scaccario, 1875.
(b) Glanvill’s Treatise, the first classical law book of England, and at the same time “the first attempt at a scientific exposition of native law in modern Europe.”1 The commonly used title of the work: “Tractatus de legibus et consuetudinibus regni Angliae tempore Regis Henrici secundi compositus justitiae gubernacula tenente Ranulfo de Glanvilla” is not original, but dates from some time after the death of Henry II.2
The work was written some time between November, 1187, and July 6, 1189. The author, Ranulfus de Glanvilla, was from 1180 to 1189 Capitalis Justitia Angliae, and certainly not without some share in the reforms of Henry II.3 The beginning of the prologue is modelled after that of the Institutes of Justinian. The treatise, which is divided into fourteen books, confines itself to an accurate and luminous exposition of the practice of the king’s court, as it had been settled on the basis of those reforms. The author expressly declines, as beyond his task, to describe the law of the local (county and manorial) courts. In the beginning of the thirteenth century Glanvill’s treatise was translated into French, and was revised as late as 1250 in view of recent developments of the law.4 On Glanvill is based the Scotch law book called from its initial words “Regiam Majestatem,” written between 1200 and 1230.
Editions. For Germany the most accessible edition is found in the second volume of Phillips’ History of the English law. It is also found in Houard’s Traités sur les Coutumes Anglo-Normandes, i. Separate editions appeared in England 1604, 1675, 1680. An English translation with notes was given by J. Beames, 1812, also 1900, with introduction by J. H. Beale, Jr. A new and critical edition is urgently needed, and one is being prepared by Leadam for the publications of the Selden Society.
(c) Henrici de Bracton de legibus et consuetudinibus Angliae libri quinque. The author, Henry de Bratton (from a village of Bratton in Devonshire), was a clergyman and royal judge under Henry III (1216-1272). We meet him first in 1245 as itinerant justice, from 1248 to 1267 as assise judge in the southwestern counties of England. His permanent office was that of royal judge in the Placita coram ipso rege (quae sequuntur regem), i. e. in the old curia regis proper. He never sat in the bancum regis at Westminster. He died in 1268. His name, the incorrect spelling of which he cites as an illustration of the invalidity of a writ, was frequently misspelled by copyists. As a consequence, he has come down to posterity as Bracton. The treatise has remained outwardly and inwardly unfinished. It breaks off in the midst of the account of the breve de recto; even as far as it goes it has not had the final revision which the author contemplated. Bracton must have practically completed his work before 1259. The pause then ensuing may have been due to the fact that from 1258 he no longer had at his disposal official court records which he had theretofore used. The decisions made use of in the treatise date almost exclusively from the time prior to 1240, and with few exceptions they are decisions of the royal judges, Martin Pateshull and William Raleigh, so that Bracton’s treatise was not incorrectly said to be an exposition of the English law as represented in the administration of justice by those two judges. Like Glanvill (whom he uses) Bracton purports to describe the law and practice of the king’s court and of the judicial commissions. He gives the fullest account of the English law of the Middle Ages, “the crown and flower of English mediaeval jurisprudence” (Maitland). The treatise is distinguished by a wealth of detailed application of principles and by careful treatment of cases, of which no less than 494 are cited. In both these respects English jurisprudence has found its first typical representative in Bracton, so also in the peculiarly precise but sound legal reasoning. In another respect, however, Bracton stands alone in English legal literature, and that is in the weight he gives to Roman influence in the exposition of his native law—especially in the first book of his treatise. The Roman law had received passing but careful attention in England during the twelfth century, especially through Vacarius. Its teaching unmistakably influenced the older English law books as to precision of legal thought and method of treatment. No English jurist shows as clearly as Bracton the first vigor of this impulse. The definitions of general legal concepts, the divisions, the terminology of Bracton, often point to Roman and canon law, the knowledge of which he obtained from the Corpus juris civilis, the Decretum and the Decretals, from Bernard of Pavia, and Tancred, and above all from Azo’s Summa to the Codex and to the Institutes.1 It happens, however, very rarely that Bracton is led by Roman ideas to depart from the law in force in England.
Editions. An edition of the treatise appeared 1569 in folio and was reprinted 1640 in 4to without change. It intended to give the text as handed down in manuscript as completely as possible, and incorporated subsequent additions to Bracton’s work without indicating them as such. A new edition, indicating sources, with cross references, and an English translation, was given by Sir Travers Twiss in 6 volumes, 1878 sqq. As regards text criticism, however, it did not fulfil legitimate expectations, since no use was made of some important manuscripts. Shortly after its appearance a discovery was made in the British Museum of about 2,000 cases of the time of Henry III, which Bracton had used in writing his treatise, and to which he made or dictated numerous marginal annotations. It was edited as Bracton’s Note Book, 1887, by Maitland, with instructive notes and with an introduction giving excellent observations regarding Bracton’s life and activity and the history of the origin of his treatise. See Vinogradoff (discoverer of the manuscript of the Note Book) in the Athenaeum of July 19, 1884, and in Law Quarterly Review, vol. i.; Güterbock, Henricus de Bracton und sein Verhältnis zum römischen Rechte, 1862 (English by Coxe, 1866); Scrutton, Roman Law in England, p. 79 sqq; Pollock and Maitland, History of English Law, i. 185 sqq.
(d) Fleta seu Commentarius Juris Anglicani, the work of an unknown jurist, getting its name from the fact that it was written in the so-called Fleet prison (tractatus . . . Fleta merito appellari poterit quia in Fleta . . . fuit compositus). It dates from about 1290. A large part is copied, often literally, from Bracton, whose bulk is reduced to about one-third. It makes use of laws enacted since Bracton, and supplements the latter in essential points.
Editions. The Fleta was printed 1647 and 1685. Both editions have as an appendix the valuable Dissertatio historica ad Fletam by Selden. See Twiss in Bracton, vi, introduction, p. 18; Nichols, Britton, i, introduction, p. 25. An incomplete reprint is found in Houard, Traités sur les Coutumes Anglo-Normandes, iii.
(e) The treatise by Gilbert of Thornton, “Summa de Legibus et Consuetudinibus Angliae,” etc., of about 1292. The author was Chief Justice of the King’s Bench from 1289 to 1295, and, as he says himself, desired to make a compendium of Bracton’s elaborate treatise. The author promised to take into account the legislation enacted since Bracton, but failed to do so. The work was not printed and is lost. Our information regarding it is derived from Selden in his Dissertatio ad Fletam.
(f) More independent of Bracton than the two last named works is a treatise going by the name of Britton, which sometimes, but without reason, has been described as a condensation or revision of Bracton. According to the investigations of its latest editor it owes its origin to a project (which is historically verifiable) of Edward I to cause a compilation of the English law to be made after the manner of the Institutes. The work is not written in the style of a law book, but its propositions are couched in the authoritative language of the lawgiver (nous voloms, nous grauntoms, etc.). The author, Britton, was probably a clerk in the service of the Crown. Since the statute Quia emptores, 18 Ed. I, is cited as “une novele constitution,” Britton must have been written soon after 1290, somewhat later than the Fleta, of which, as of Bracton, it makes use. It is the oldest English law book written in French.
Editions. Earlier editions of 1540 and 1640 have been superseded by the careful edition by Nichols, Oxford, 1865, 2 vols., with English translation, and references to Bracton, the Fleta, and the Statutes, and with glossary and index.
(g) A treatise of small compass is the Summa Magna et Parva of Ralph of Hengham, likewise of the time of Edward I, which is intended to supplement Bracton’s work in the learning of defaults and essoins. It is reprinted as an appendix to the edition of Fortescue (see infra) of 1737.
(h) The editions of Fleta subjoin to the last chapter of that book a treatise in Anglo-French of fifty paragraphs relating to procedure. It begins with the words “Fet assaver,” which also frequently recur at the head of the several paragraphs, and by which the work is cited.
(i) The Mirrour of Justices, also called Liber Justiciariorum, a curious legal monument, probably written between 1285 and 1290. The text is preceded by five Latin verses, in the last of which the writer calls himself Andrew Horn. Of one Andrew Horn, who was chamberlain of the city of London in 1320, we know that in 1328 he bequeathed to the London Guildhall together with other books his copy of the Liber Justiciariorum. We do not know the author, but he was hardly Andrew Horn. The manuscript to which all those now extant go back, is not the original, but a copy by the hand of a careless copyist who occasionally skipped an entire line.1 The Mirrour contains a mixture of fiction and truth. It is the work of an amateur jurist, who, with the conceit of superior knowledge, represents the law such as in his opinion it ought to be, as being old law, giving his unbridled imagination full play, and inventing silly stories to explain the origin of legal institutions. How far the work contains useful data, especially in matters within the reach of a layman’s comprehension, must be ascertained by further special studies, which might prove rather thankless. The Mirrour is divided into five books, of which the last, “De abusions,” contains a criticism of legal abuses concerning the common law, the Magna Charta, the statutes of Merton and Marlborough and the statutes of Edward I down to 1285. Being taken seriously in its entire content by English jurists from Edward Coke down to the late editor of Reeves’ History of English Law, it has done a good deal of mischief in the study of English legal history.
Editions. The Mirrour was printed in 1642. An English translation was offered by William Hughes, 1646, reprinted 1768 and 1840. Houard, in the fourth volume of his Traités, gives the first four books. The latest edition is that by W. I. Whittaker, 1895, in the Publications of the Selden Society, vol. vii. It contains a critical introduction by Maitland.
5. The sources of English municipal or borough law are bewildering in their wealth, only partly sifted, and a still smaller portion published. In them we meet not infrequently principles and ideas going back to Anglo-Saxon law which within the city walls escaped the inundation of England by Norman law. In their chequered diversity the sources of municipal law cannot be exhaustively arranged under the four heads above chosen. Nor is it within the compass of this sketch to enter upon the sources of local law. A systematic review of the principles of English law recognized according to the sources in the municipal courts of England, Scotland, and Ireland during the Middle Ages is given by Miss Mary Bateson, Borough Customs, in two volumes of the Publications of the Selden Society, 1904, 1906 (vol. xviii, xxi). In vol. i, p. 18, sq., we find a list of printed and unprinted municipal sources. See also Gross, Bibliography of British Municipal History, 1897.
Bibliography Regarding the Sources of This Period: Matthew Hale, History of the Common Law, 2 vols., 8vo, an unfinished work, published from the author’s posthumous papers by Runnington, 6th ed., 1820; as an appendix Hale’s analysis of the civil part of the law is printed. J. Reeves, History of the English Law from the time of the Saxons to the end of Philip and Mary, 4 vols.; 3d ed., 1814, with a fifth volume, under the title History of the English Law from the time of the Saxons to the end of the Reign of Elizabeth, vol. v containing the reign of Elizabeth, 1829. This is the most thorough and comprehensive work of English legal history going beyond the Middle Ages. A recent edition was prepared by Finlason, 1869, in three volumes, who added worthless notes, and arbitrarily changed the arrangement of the material. (See as to this edition: H. Brunner in the American Law Review, Oct., 1873, vol. viii, p. 133.)—Phillips, Englische Reichs- und Rechtsgeschichte seit der Ankunft der Normannen, 2 vols., 1828, goes only to 1189.—Crabb, History of the English Law, 1829, translated into German by Schäffner, 1839, somewhat superficial.—Savigny, Geschichte des römischen Rechts im Mittelalter, 2d ed., 1850, iv, appendix, 24.—Stubbs, Constitutional History of England, ends in the third volume with the death of Richard III.—The sources of the common law are thoroughly treated with special reference to private law and procedure by Gundermann, Englisches Privatrecht, i. 1864 (Introduction).—From the point of view of public law the sources are grouped by Gneist in the notes on pp. 56 and 137 of his Geschichte . . . der englischen Communalverfassung oder das Selfgovernment, i, 1863.—Glasson, Histoire du Droit et des Institutions politiques civiles et judiciaires de l’Angleterre, 1882 sqq., 6 vols.—Above all for the age of Glanvill and Bracton the great History of English Law by Pollock and Maitland, 1895. Note also the historical studies by Maitland in the introductions of his editions in the Publications of the Selden Society.—A. T. Carter, Outlines of English Legal History, 1899.
As to Real Property see: K. E. Digby, An Introduction to the History of the Law of Real Property, 3d ed., 1884; Pollock, The Land Laws, London, 1896 (translated into German by E. Schuster, 1889). For Procedure: Bigelow, History of Procedure in England, the Norman Period, 1880; and H. Brunner, Entstehung der Schwurgerichte, 1872. A history of the courts and of the jurisdiction exercised by them down to the present time is given by W. S. Holdsworth, A History of English Law, vol. i, 1903. Useful notes are found in the Bibliotheca Legum Angliæ, part II, containing a general account of the laws and law-writers of England from the earliest times to the reign of Edward III; compiled by Edward Brooke, London, 1788. Valuable recent material for the history of sources is found in Cooper, An Account of the most important Public Records of Great Britain, and the publications of the Record Commission, London, 1832, 2 parts. A summary view is given by Stephen, New Commentaries on the Laws of England (partly founded on Blackstone), 13th ed., 1899.
SOURCES OF ENGLISH LAW FROM THE FOURTEENTH CENTURY TO BLACKSTONE
From the time of Edward III, and beginning in 1340, the Chancery with its staff officials appears as a separate organ of equity, a remedial jurisdiction for cases in which the common law afforded no redress or no adequate redress. As the Anglo-Saxon king had the authority to temper the strict law,1 as the Frankish king had the right to order the decision of controversies in the king’s court secundum aequitatem, as the later Roman law had reserved the application of aequitas to the consistorium principis, so the Anglo-Norman king since the thirteenth century administered equity in the Council. This function of the Council gradually became vested in the Chancery, which long before had granted new writs in consimili casu, as a court of equity, which in course of time through the following of precedents (lex cancellariae) assumed definite form, and developed not merely a procedure without jury based upon the canon law, but a substantive private law of equity in contrast to the common law. “England thereby obtained the necessary supplement to its private law, which in Germany resulted from the reception of the Roman law”—an observation by Gneist (Engl. Verfassungsgeschichte, p. 335), which expresses a fundamentally correct idea.
Editions. The older records of the Chancery are printed in the first two volumes of the work: A Calendar of the Proceedings in Chancery in the Reign of Queen Elizabeth, to which are prefixed examples of earlier proceedings in that court, namely, from the reign of Richard II to that of Queen Elizabeth inclusive, 1827 sqq.; and in the publication (which supplements that work): Select Cases in Chancery, 1364-1471, ed. William Paley Baildon, 1896 (Selden Society, vol. x).
Toward the end of the fifteenth and beginning of the sixteenth century, when the reception of the Roman law occurred in Germany, it also seemed to ask for admission to the courts of England. Especially in the second quarter of the sixteenth century the continuity of the development of English law seemed seriously threatened. A number of causes, however, combined to make it possible to ward off the foreign law permanently. The English law, which had attained to a relatively high degree of technical perfection, found strong support in the schools of law with settled traditions of teaching.1 The early reception of Roman ideas, especially in the age of Bracton, had “operated as a sort of prophylactic inoculation, and had rendered the national law immune against destructive infection.”2 It seemed to augur ill for the English law that in 1535 the Year Books were discontinued, the official reports, which had aided so strongly the continuity of English jurisprudence. But in the same year Henry VIII prohibited the study of the canon law, which in Germany had opened the path for the triumphant march of the Roman law.
As sources of the common law (as distinguished from equity) we should mention for this period the following:
A. Statutes. The series of statutes begins at a time when the principles of English law regarding the constitutional methods of legislation were not yet settled. Statutes are divided into statuta vetera and nova. The dividing line is the beginning of the reign of Edward III, 1327, it being assumed that by this time the essential elements of the modern idea of a statute are fixed. This assumption is incorrect, for the constitution of Parliament is settled as early as Edward I, while its rights with reference to legislation are expressly recognized only after Edward III. Since Edward III we have, however, a distinction between statutes and ordinances, based upon the fact, that parliamentary acts intended to be of permanent operation were entered in the official statute rolls. In default of such entry the act was an ordinance. What constitutes an ordinance, from the substantive point of view, is controverted, some regarding it as an imperfect statute, others as a temporary law. It is probably correct to assume that originally statute and ordinance served the same purpose. (See Gneist, Verwaltung, Justiz, Rechtsweg, 1869, p. 62). As in the German Empire down to 1654 the laws enacted at a diet were collected as “Reichsabschied,” recessus imperii, so in England the laws enacted at a session of Parliament were put together as a statute, the several legislative acts being designated as chapters. Each law is cited according to the king who enacted it, prefacing the year of his reign and adding the number of the chapter. So 18 Ed. III, c. 7. From the time of the Tudors the language of the statutes degenerates noticeably, and becomes more diffuse and slovenly as the number of statutes increases. From Henry VII on (1485-1509) the language of legislation is English exclusively.
Editions. To the Statutes of the Realm we should add for the time of the Commonwealth: Acts and Ordinances during the Usurpation from 1640 to 1656 by Henry Scobell, London, 1658, fol. The proceedings of the Council, above referred to, have been edited by Sir Harris Nicolas as Proceedings and Ordinances of the Privy Council of England, from 10 Ric. II, 1386, to 33 Henr. VIII, 1541, 7 vols., 8vo, 1834-1837. The Register of the acts and important proceedings of Parliament, the Parliamentary Rolls, are printed as Rotuli Parliamentorum ut et Petitiones et Placita in Parliamento (1278-1503), 6 vols., 1764 sqq. An index to this was published in 1832. The official journals of the House of Lords begin 1 Hen. VIII, those of the House of Commons, 1 Ed. VI. See Gneist, Selfgovernment, i. 256, and Gneist, Das englische Parlament vom neunten bis zum Ende des neunzehnten Jahrhunderts, 1886.—Continuing the above mentioned collection by Tomlins and others, the later statutes are contained in the Statutes of the United Kingdom of Great Britain and Ireland by Tomlins, Raithby, Simons, Bevan and Rickards, 29 vols. (to 32 & 33 Vict.), 1804-1869.
In 1860 a Commission was set to work to publish an abridged edition of the statutes, eliminating repealed and antiquated matter. The final result of this is the second revised edition of the statutes, prepared under the direction of the Statute Law Committee, 1888-1890. Of the editions for practical use should be mentioned Chitty’s Collection of Statutes of Practical Utility arranged in alphabetical and chronological order, re-edited and brought down to date by Lely, 5th ed., 1901.
B. Judicial Sources. The fourteenth century and the first half of the fifteenth lived on the rich legacy of the thirteenth. It was not until the second half of the fifteenth century that important law books reappeared which relegated the older ones to oblivion. The development of the law at this time must be traced almost exclusively through the judicial sources.
Since the number of the regular writs (brevia de cursu) grew constantly, the need of a collection made itself felt. One made under Edward III at the same time illustrated their application: it is known as Old Natura Brevium. An official collection of forms appeared in 1531, known as Registrum Brevium omnium tam Originalium quam Judicialium. An extract from this is revised in the New Natura Brevium by Anthony Fitzherbert (many editions, first French, 1534; ninth edition, English, 1794, with a commentary by Lord Hale).
The records belonging to this period are as yet unprinted. Even the Abbreviatio closes with Edward II. The printing of the older records would be especially desirable in order to facilitate the understanding of the Year Books. The language of the records long remained Latin, even after French had in 1362 been superseded by English as the language of the courts.
The official reports close under Henry VIII (1535). Reports from the time of Edward III have been published by Pike in continuation of Horwood’s edition of the Year Books. The official are replaced by private reporters, the reports in some instances being made primarily for the private use of the reporter, who was subsequently prevailed upon to publish them. The high value attached to precedents in England appears from the fact that the reports not only furnished the main material for independent legal treatises, but constituted themselves a most important form of legal literature. The number of reporters is large and the greatest names in English jurisprudence are found among them. Of the older reporters, Plowden (1578) and Dyer (1585) stand especially high. A conspicuous place belongs to Edward Coke who attained to such authority that his reports are cited without name—a distinction shared by no other English jurist. His reports comprise thirteen volumes, of which the last two appeared after his death. Of the reporters after Coke may be mentioned: Croke, Yelverton, Hobart, Saunders, Vaughan, and Levinz. The number of printed reports is very large. Sir Fred. Pollock estimates the number of printed reports for England alone at more than 1,800 volumes, the number of reports for Great Britain, the Colonies, and the United States at 8,000 volumes.1
Editions. A list of the reports and of the abbreviations by which they are cited, is given by Arthur Cane, Tables, Alphabetical and Chronological, of all Reports of Cases decided in England, Scotland and Ireland, . . . with a list of the usual modes of citation compiled under the direction of the Council [of Law Reporting], London, 1895. For the history of the reports see: Daniel, History and Origin of the Law Reports, 1884; J. W. Wallace, The Reporters, 1882; Sir Frederick Pollock, A First Book of Jurisprudence for Students of the Common Law, 1896, p. 274 sqq., and the sketch by Van Vechten Veeder, The English Reports, 1292-1865, in the Harvard Law Review, 1901.
C. Legal Writings.—After a long pause English legal science received a new lease of life with the work of Fortescue, De laudibus legum Angliae, and with Littleton’s Tenures.
John Fortescue had first been attorney, and in 1442 under Henry VI had become Chief Justice of the King’s Bench. Adhering to the House of Lancaster in the struggle between the Roses, he was convicted of high treason after the victory of Edward IV of York, in 1461, and fled from England. About 1463 he was with the Queen and Prince Edward in Barrois in Lorraine. Probably in this exile, from which he returned to England only in 1471, he wrote for the education of the successor to the crown his famous work, “De laudibus legum Angliae,” to which he gave the form of a dialogue between prince and chancellor. (Fortescue had been nominally appointed chancellor by Henry VI. Edward IV pardoned him in 1473 and made him privy councillor.)
The book, which is written in popular style, pursues the double purpose of showing the peculiarities and advantages of the English law as compared with the Roman law, and to point out the good features of a constitutionally limited monarchy in contrast to a despotic government. Not a few of the propositions first enunciated by him later on became political axioms. For the Continent Fortescue is important as the precursor of those modern authors who by pointing out the advantages of English law prepared the way for the reception of English institutions by Continental Europe.
Editions. The most valued edition of the work is that of 1737 in folio. A later edition appeared, 1825, with notes by Amos, republished 1874 with an English translation by Francis Gregor (Cincinnati). Careful edition by Plummer, Oxford, 1885. All the works of Fortescue were published by Lord Clermont in 1869. As to Fortescue, see the article by Gundermann in Bluntschli and Brater’s Staatsworterbuch, and Foss, The Judges of England with sketches of their lives, iv. 215, 308.
A contemporary of Fortescue, Thomas Littleton (died 1481), furnished an epoch-making exposition of private law by his Tenures, in which he discusses the law of real property on the basis of the material scattered through the numerous reports. According to Coke, the work was written after the fourteenth year of Edward IV (1461-1483), and attained such authority that Coke, who speaks of it as the most perfect and absolute work that was ever written in any human science, was able to say that he knew of no decision conflicting with any view of Littleton’s.
Editions. Some place the oldest edition in the year 1481; according to this the Tenures were printed soon after the introduction of printing into England. Edward Coke furnished an English translation of the old French text, and a commentary, and in this form the Tenures dominated down to Blackstone like a code the practice and study of the English law. The old French text with English translation and notes was last edited by Tomlins in 1841. A new edition of the old English translation was prepared by Eugene Wambaugh, with valuable introduction and bibliography, Washington, 1903. Coke’s edition will be referred to later on. See Foss, Judges, iv. 436.
A much read and often printed treatise, written under Henry VIII, was St. Germain’s Dialogus de fundamentis legum Angliae et de conscientia. It contains a dialogue between a doctor of divinity and a student of English law, aiming at a philosophical justification of English legal institutions.
Editions. The earliest edition is of 1523. In English translation, under the title Doctor and Student, the book experienced many editions. That of 1787 is entitled: Doctor and Student; or dialogues between a doctor of divinity and a student in the laws of England concerning the grounds of those laws, together with questions and cases concerning the equity thereof. Eighteenth edition, corrected and improved, by William Muchall, 1815.
Anthony Fitzherbert, the author of the New Natura Brevium (died 1538), is also known for some special treatises on the courts, especially, however, by his Graunde Abridgement (printed 1514, 1516, 1565), a digest of the Year Books. The cases from the time of Henry III which are digested in the Abridgement, are almost exclusively taken from Bracton’s Note Book.
Between 1554 and 1556 Sir William Staunforde (also spelled Staundford; died 1558), England’s earliest scientific criminalist, wrote a highly valued work on criminal law and procedure, “The Pleas of the Crown,” which makes good use of the treatise of the thirteenth century, in addition to the Reports. Staunforde was also the first to edit Glanvill’s treatise, and he wrote a treatise, De prerogativa regis, which is generally subjoined to the editions of the Pleas of the Crown. (See Foss, Judges, v. 390. Reeves, History of the English Law, iii. 564 sqq.)
An excellent summary description of the English political and legal constitution at the time of Elizabeth was given in 1565 by Sir Thomas Smith in his little book. De Republica Anglorum, which among other things contains a summary of civil and criminal procedure. The vivid account, written in Toulouse without the aid of a library, is strongly spiced with classical quotations. Aiming at the utmost purity of Latin, Smith replaced English by classical terms, transformed the coroner into the quaestor homicidii, the justice of the peace into the eirenarches, the king’s bench into the subsellia regis, and so on. His description was later on often enlarged by others. A new edition, with preface by Maitland, was published in Cambridge, 1906.
Edward Coke, whose works have in part been already referred to, became the most celebrated authority among English jurists. He was born in 1552, became attorney-general in 1594, Chief Justice of the Common Pleas in 1606, Chief Justice of the King’s Bench in 1613, but lost the king’s favor and his position in 1616, partly in consequence of the antagonism of his opponent, Sir Francis Bacon. His principal works are the above mentioned Reports and the Institutes of the Laws of England. The latter (very improperly so-called) appeared in 1628 and consist of four parts. The first contains a Commentary on Littleton’s Tenures, which has frequently been edited and annotated. The notes by Hargrave and Butler are particularly valuable. Part II furnishes a copious commentary to Magna Charta and the older statutes, but without systematic arrangement. The third part gives an exposition of criminal law (Placita Coronae). The fourth treats of jurisdictions. The Institutes are cited by prefixing to “Inst.” the number of the part, and adding the page. Coke accomplished all that is possible by the method of the commentary. His works are distinguished by thoroughness and learning, but not by a display of genius. (See Foss, Judges, vi. 108.)
Edition. The Institutes of the Laws of England . . . autore Edw. Coke, London, 1817, in 6 vols. Part I (2 vols.) with notes by Hargrave and Butler; last edition 1832 (19th ed.).
Of the jurists after Coke and before Blackstone it is sufficient to mention Matthew Hale, William Hawkins, and John Comyns. M. Hale (died 1676), who, although Royalist, became, under Cromwell, judge in the Court of Common Pleas on account of his eminence as a lawyer, wrote in addition to the above mentioned History of the Common Law, a work on criminal law: the History of the Pleas of the Crown (Historia Placitorum Coronae), first edited 1739, then in 1800 with notes by Dogherty, last in 1847 by Stokes and Ingersoll with a biography of the author (2 vols.); also, the Analysis of the Law which became the foundation of Blackstone’s Commentaries. William Hawkins is to be noticed likewise for a work on criminal law and procedure: the Treatise of the Pleas of the Crown or a system of the principal matters relating to that subject, published by the author in 1716 (8th edition, 1824, revised by Curwood, with supplements by Leach). Sir John Comyns (died 1740) is noted for his Reports (1744), and still more for the Digest of the Laws of England (1762, 5th edition by Hammond, 8 vols., 1822), said to be distinguished for method, thoroughness and accuracy.
English legal literature entered upon a new era with the Commentaries on the laws of England by Sir William Blackstone (born 1723, died 1780). Blackstone was first lawyer, but subsequently entered upon the academic career, and in 1758 obtained the chair of English law endowed at the University of Oxford by the jurist Viner, author of a voluminous Abridgment of Law and Equity. Later on he was again active at the bar, and as a member of Parliament, and finally became judge in the Court of Common Pleas. His varied activities enabled him to combine in his works theoretical learning with practical judgment. The so-called Commentaries, which grew out of his academic lectures, are really a systematic exposition of the English law. In the plan of the work he followed Matthew Hale, the portions on public law betray the influence of Montesquieu. The first volume treats of the rights of persons, the second of the rights of things (including obligations), the third of private wrongs, the fourth of public wrongs (crimes, punishments, criminal procedure). The other departments of law (constitution, church, courts) are forced into this division. The first edition of the Commentaries appeared 1765: Blackstone himself altered little in the later editions. The lucidity and transparency of the style, the scientific thoroughness of the author, the repression of ponderous learning, the mastery of the enormous material, have given the work a world-wide reputation. Blackstone did not write primarily for lawyers, but for the educated public in general. He was the first who succeeded in raising English jurisprudence from its isolation to the level of general culture. The legal historian may find some of the historical expositions from the point of view of present knowledge shallow and incorrect: a Romanist will look in vain for a strict system. Those who desire a legislative transformation of the English law, such as was advocated later on by Blackstone’s pupil, Bentham, may from their point of view not unjustly criticize his want of reformatory spirit and his adherence to legal traditions. Yet it can be boldly asserted that not one of the modern systems of law can boast of an exposition equal to that which the English law possesses in Blackstone. Abroad he has become almost the representative of English jurisprudence. The Continent of Europe derived its knowledge of English law chiefly from him. In America he is regarded as the repository of the common law. In England the study of the law even to-day is chiefly based upon the Commentaries. The work has gone in England through more than twenty editions.1 In the beginning the changes that were called for by the progress of the law were made through notes, addenda, and corrections. This was done especially by Christian, who brought out the twelfth to the fifteenth editions. But the radical legislative changes since 1815 necessitated a revision of the text of the Commentaries. The most important of these revisions is that by Stephen, whose New Commentaries on the laws of England (partly founded on Blackstone) afford the best view of the present state of the law in England (13th edition, 1899). The last English edition of the original text of Blackstone is that by Robert Malcolm Kerr (4 vols., 4th ed., 1876). The principal American editions are by Hammond, 1890, giving all American cases in which Blackstone is cited, and by Tucker, Sharswood, Cooley, and Lewis. Of the abridgments of Blackstone may be mentioned that which Foss published in 1820 under the name of John Gifford (translated into German by Colditz, Schleswig, 1822), a Blackstone abridged and adapted to the existing law by Samuel Warren (2d ed., 1856) and Kerr’s Student’s Blackstone (10th ed., 1887). Besides the Commentaries, Blackstone wrote a number of smaller treatises, of which a collective edition appeared under the name of Tracts, chiefly relating to the Antiquities and Laws of England (3d ed., Oxford, 1771), among them an Analysis of the Laws of England, an Essay on Collateral Consanguinity, Considerations on Copyholders, and an Introduction to Magna Charta. He also wrote Reports (edited with notes by Elseley, 1827), which are criticized as being not quite accurate. (As to Blackstone, see the article by Marquardsen in Blunstchli and Brater’s Staatswörterbuch, ii. 157. Wilson, History of Modern English Law, hardly does him justice.)
The period of the undisputed rule of the common law ended in England in the past century. A complete break with the past, such as was demanded by the naturalistic radical theories of Bentham and Austin regarding the function of legislation, has been wisely avoided. Yet incisive reforms had become inevitable. The idea of codification, which emerged as early as the sixteenth century, assumed definite shape when the consolidation of statutes on special topics, especially in criminal law and procedure, was undertaken, and at the same time comprehensive reforms were introduced by legislation. The importance of the statutes as a source of law has greatly increased in the field of the common law. The great reorganization of the judiciary inaugurated by the Supreme Court of Judicature Act, gave the development of the English law an entirely new direction. The several courts at Westminster were replaced by one consolidated Supreme Court. By the transformation of the Court of Chancery into one of the Divisions of the High Court of Justice the traditional contrast between common law and equity lost much of its sharpness and the infusion of equity into the common law was made possible.
With the expansion of the territory of the realm, the English law has been extended in the main to Wales and Ireland, while Scotland remains legally distinct. Here there had been a reception of English law in Anglo-Saxon and still more in Anglo-Norman times, especially since Henry II; and English statutes and writs obtained force in Scotland. But from the time of Edward III the development of Scotch law pursued its independent course, so that it differs now in many respects from the English common law. The sources of law for each country being almost equally comprehensive, it must suffice here to refer to the data given in Stephen-Blackstone, New Commentaries, i. Neither can the development of the English law in the British Colonies or in the United States be here considered.
Bibliography. Of Reeves, History of the English Law, part of vol. ii and vols. iii-v treat of the period here considered to the reign of Elizabeth inclusive. Crabb becomes very summary subsequent to the period covered by Reeves. The most recent development of the law is treated of by Wilson, History of Modern English Law, 1875, a zealous advocate of radical modernization of the English law through legislation (Benthamism), contrasting the common law with the recent changes. Full notes regarding the legal writers who were also judges are found in Edw. Foss, The Judges of England, with sketches of their lives, 9 vols., to 1864, and in his Biographia Juridica, a biographical Dictionary of the Judges of England, 1066-1870, 1870. Holmes, The Common Law, Boston, 1881, gives a very noteworthy account of civil and criminal institutions of the common law and their historic foundations. An excellent view of the English private law on a historical basis is afforded by Ernst Heymann, in Holtzendorff-Kohler: Encyclopaedie der Rechtswissenschaft, 6th ed., i (1904), p. 795. For a first introduction see Sir Fred. Pollock, A First Book of Jurisprudence for Students of the Common Law, 1896.
MATERIALS FOR THE HISTORY OF ENGLISH LAW1
A DISTINGUISHED English lawyer has recently stated his opinion that the task of writing a history of English law may perhaps be achieved by some of the antiquarian scholars of Germany or America, but that “it seems hardly likely that any one in this country [England, to wit] will have the patience and learning to attempt it.”3 The compliment thus paid to Germany and America is, as I venture to think, well deserved; but a comparison of national exploits is never a very satisfactory performance. It is pleasanter, easier, safer to say nothing about the quarter whence good work has come or is likely to come, and merely to chronicle the fact that it has been done or to protest that it wants doing. And as regards the matter in hand, the history of English law, there really is no reason why we should speak in a hopeless tone. If we look about us a little, we shall see that very much has already been achieved, and we shall also see that the times are becoming favorable for yet greater achievements.
Let us take this second point first. The history of history seems to show that it is only late in the day that the laws of a nation become in the historian’s eyes a matter of firstrate importance, or perhaps we should rather say, a matter demanding thorough treatment. No one indeed would deny the abstract proposition that law is, to say the least, a considerable element in national life; but in the past historians have been apt to assume that it is an element which remains constant, or that any variations in it are so insignificant that they may safely be neglected. The history of external events, of wars and alliances, conquests and annexations, the lives of kings and great men, these seem easier to write, and for a while they are really more attractive; a few lightly written paragraphs on “the manners and customs of the period” may be thrown in, but they must not be very long nor very serious. It is but gradually that the desire comes upon us to know the men of past times more thoroughly, to know their works and their ways, to know not merely the distinguished men but the undistinguished also. History then becomes “constitutional;” even for the purpose of studying the great men and the striking events, it must become constitutional, must try to reproduce the political atmosphere in which the heroes lived and their deeds were done. But it cannot stop there; already it has entered the realm of law, and it finds that realm an organized whole, one that cannot be cut up into departments by hard and fast lines. The public law that the historian wants as stage and scenery for his characters is found to imply private law, and private law a sufficient knowledge of which cannot be taken for granted. In a somewhat different quarter there arises the demand for social and economic history; but the way to this is barred by law, for speaking broadly we may say that only in legal documents and under legal forms are the social and economic arrangements of remote times made visible to us. The history of law thus appears as means to an end, but at the same time we come to think of it as interesting in itself; it is the history of one great stream of human thought and endeavor, of a stream which can be traced through centuries, whose flow can be watched decade by decade and even year by year. It may indeed be possible for us, in our estimates of the sum total of national life, to exaggerate the importance of law; we may say, if we will, that it is only the skeleton of the body politic; but students of the body natural cannot afford to be scornful of bones, nor even of dry bones; they must know their anatomy. Have we then any cause to speak despondently when every writer on constitutional history finds himself compelled to plunge more deeply into law than his predecessors have gone, when every effort after economic history is demonstrating the absolute necessity for a preliminary solution of legal problems, when two great English historians who could agree about nothing else have agreed that English history must be read in the Statute Book?1 In course of time the amendment will be adopted that to the Statute Book be added the Law Reports, the Court Rolls and some other little matters.
And then again we ought by this time to have learnt the lesson that the history of our law is no unique phenomenon. For a moment it may crush some hopes of speedy triumph when we learn that, for the sake of English law, foreign law must be studied, that only by a comparison of our law with her sisters will some of the most remarkable traits of the former be adequately understood. But new and robuster hopes will spring up; we have not to deal with anything so incapable of description as a really unique system would be. At numberless points our mediæval law, not merely the law of the very oldest times but also the law of our Year Books, can be illustrated by the contemporary law of France and Germany. The illustration, it is true, is sometimes of the kind that is produced by flat contradiction, teaching us what a thing is by showing us what it is not; but much more often it is of a still more instructive kind, showing us an essential unity of substance beneath a startling difference of form. And the mighty, the splendid efforts that have been spent upon reconstructing the law of mediæval Germany will stimulate hopes and will provide models. We can see how a system has been recovered from the dead; how by means of hard labor and vigorous controversy one outline after another has been secured. In some respects the work was harder than that which has to be done for England, in some perhaps it was easier; but the sight of it will prevent our saying that the history of English law will never be written.
And a great deal has been done. It is true that as yet we have not any history of our whole law that can be called adequate, or nearly adequate. But such a work will only come late in the day, and there are many things to be done before it will be produced. Still some efforts after general legal history have been made. No man of his age was better qualified or better equipped for the task than Sir Matthew Hale; none had a wider or deeper knowledge of the materials; he was perhaps the last great English lawyer who habitually studied records; he studied them pen in hand and to good purpose. Add to this that, besides being the most eminent lawyer and judge of his time, he was a student of general history, found relaxation in the pages of Hoveden and Matthew Paris, read Roman law, did not despise continental literature, felt an impulse towards scientific arrangement, took wide and liberal views of the object and method of law. Still it is by his Pleas of the Crown and his Jurisdiction of the House of Lords that he will have helped his successors rather than by his posthumous and fragmentary History of the Common Law.1 Unfortunately he was induced to spend his strength upon problems which in his day could not permanently be solved, such as the relation of English to Norman law, and the vexed question of the Scottish homage; and just when one expects the book to become interesting, it finishes off with protracted panegyrics upon our law of inheritance and trial by jury. When, nearly a century later, John Reeves2 brought to the same task powers which certainly were far inferior to Hale’s, he nevertheless achieved a much more valuable result. Until it is superseded, his History will remain a most useful book, and it will assuredly help in the making of the work which supersedes it. Reeves had studied the Year Books patiently, and his exposition of such part of our legal history as lies in them is intelligent and trustworthy; it is greatly to his credit that, writing in a very dark age (when the study of records in manuscript had ceased and the publication of records had not yet begun), he had the courage to combat some venerable or at least inveterate fables. Still his work is very technical and, it must be confessed, very dull; it is only a book for those who already know a good deal about mediæval law; no attempt is made to show the real, practical meaning of ancient rules, which are left to look like so many arbitrary canons of a game of chance; owing to its dreariness it is never likely to receive its fair share of praise. Crabb’s History of English Law is a comparatively slight performance;1 it adds little if anything to what was done by Reeves.
But particular departments of law have found their historians. What we call constitutional history is the history of a department of law and of something more—a history of constitutional law and of its actual working. For men of English race, constitutional history has long had an interest; they can be stirred by the politics of the past, for they are “political animals” with a witness. It would be needless to say that in this quarter solid and secure results have been obtained, needless to mention the names of Palgrave, Hallam, Stubbs, Gneist. Still, for modern times, much remains to be done. In relation to those times “constitutional history” but too frequently means a history of just the showy side of the constitution, the great disputes and great catastrophes, matters about which no one can form a really sound opinion who is not thoroughly versed in the sober, humdrum legal history of the time. But this work will certainly be done; the “general historian” will see more and more clearly after every attempt that he cannot be fair, that he cannot even be very interesting, unless he succeeds in reproducing for us not merely the facts but the atmosphere of the past, an atmosphere charged with law.
Again, other parts of the law have been submitted to historical treatment; in particular, those which in early times were most closely interwoven with the law of the constitution, criminal law1 and real property law,2 while the history of trial by jury has a literature of its own and the history of some early stages in the development of civil procedure has not been neglected.3 But every effort has shown the necessity of going deeper and deeper. Everywhere the investigator finds himself compelled to deal with ideas which are not the ideas of modern times. These he has painfully to reconstruct, and he cannot do so without calling in question much of the traditional learning, without tracing the subtle methods in which legal notions expand, contract, take in a new content, or, as is sometimes the case, become hide-bound, wither and die. This task of probing and defining the great formative ideas of law is one that cannot be undertaken until much else has been done; it is only of late that the possibility and the necessity of such a task have become apparent, but already progress has been made in it. We are not where we were when a few years ago Holmes published a book which for a long time to come will leave its mark wide and deep on all the best thoughts of Americans and Englishmen about the history of their common law.4
And here let us call to mind the vast work done by our Record commission, by the Rolls series, by divers antiquarian societies, towards providing the historian of law with new materials. Let us think what Reeves had at his disposal, what we have at our disposal. He had the Statute Book, the Year Books in a bad and clumsy edition, the old text-books in bad and clumsy editions. He made no use of Domesday Book; he had not the Placitorum Abbreviatio, nor Palgrave’s Rotuli Curiae Regis; he had no Parliament Rolls, Pipe, Patent, Close, Fine, Charter, Hundred Rolls, no Proceedings of the King’s Council, no early Chancery Proceedings, not a cartulary, not a manorial extent, not a manorial roll; he had not Nichols’ Britton, nor Pike’s nor Horwood’s Year Books, nor Stubbs’ Select Charters, nor Bigelow’s Placita Anglo-Normannica; he had no collection of Anglo-Saxon “land books,” only a very faulty collection of Anglo-Saxon dooms, while the early history of law in Normandy was utter darkness. The easily accessible materials for that part of our history which lies before Edward I have been multiplied tenfold, perhaps twenty-fold; even as to later periods our information has been very largely supplemented. Where Reeves was only able to state a naked rule, taken from Bracton or the Statute Book, and leave it looking bare and silly enough, we might clothe that rule with a score of illustrations which would show its real meaning and operation. The great years of the Record commission, 1830 to 1840, the years when Palgrave and Hardy issued roll after roll, such years we shall hardly see again; the bill, one is told, was heavy; but happily the work was done, and there it is.1 A curious memorial it may seem of the age of “the radical reform,” of the time when Parliament, for once in a way, was really showing some interest in the ordinary, every-day law of the realm, and was wisely freeing it from its mediæval forms. But in truth there is nothing strange in the coincidence; the desire to reform the law went hand in hand with the desire to know its history; and so it has always been and will always be.2 The commencement in 1858 of the Rolls series is, of course, one of the greatest events in the history of English history, and in that series are now to be found not only most of our principal chronicles, but also several books of first-rate legal importance, Year Books never before printed and monastic cartularies. The English Historical society published Kemble’s collection of Anglo-Saxon charters, the Camden society published Hale’s Domesday of St. Paul’s and several similar works. More recently the Pipe Roll society started with the purpose of “dealing with all national manuscripts of a date prior to 1200,” and the Selden society with the purpose of “printing manuscripts and new editions and translations of books having an important bearing on English legal history.” Such work must chiefly be done in the old country, but it would be base ingratitude were an Englishman to forget that the Selden society owes its very existence to the support that has been given to it in America. And then again the original documents themselves are now freely and conveniently accessible to the investigator, and a very great deal has been done towards making catalogues and indexes of them. Our Public Record office, if I may speak from some little experience of it, is an institution of which we may justly be proud; certainly it is a place in which even a beginner meets with courtesy and attention, and soon finds far more than he had ever hoped to find. Then, lastly, there has been a steady flow of manuscripts towards a few great public libraries. He who would use them has no longer to go about the country begging favors of the great; he will generally find what he wants at the British museum, at Oxford, or at Cambridge. No, most certainly we do not stand where Reeves stood.1
But perhaps we have not yet cast our eyes towards what will prove to be the brightest quarter of all, the study of our common law in the universities. Not only are there law schools, but (and this is more to our point) we on this side of the water have the pleasure of reading about schools of political science, schools in which law is taught along with history and along with political economy. Surely it cannot be very rash in us to say that the training there provided is just the training best calculated to excite an interest in the history of law. Possibly that interest may be sufficiently keen and sufficiently patient to tolerate the somewhat dreary information which it is the purpose of this article to afford. An attempt to indicate briefly the nature and the whereabouts of our materials may be of some use though it stops short of a formal bibliography. In the course of this attempt the writer may take occasion to point out not merely what has been done, but also what has not been done, and in this way he may perhaps earn the thanks of some one who is on the outlook for a task.
To break up the history of law into periods is of course necessary; but there must always be something arbitrary in such a proceeding, and only one who is a master of his matter will be in a position to say how the arbitrary element can best be brought to the irreducible minimum. It would be natural to make one period end with the Norman conquest; and though, if no line were drawn before that date, the first period would be enormously long, five or six hundred years, still we may doubt whether our English materials will ever enable us to present any picture of a system of English or Anglo-Saxon law as it was at any earlier date than the close of the eleventh century. By that time our dooms and land-books have become a considerable mass. If we stop short of that time, we shall have to eke out our scanty knowledge with inferences drawn from foreign documents, the Germania of Tacitus, the continental “folk laws,” notably the Lex Salica. In that case the outcome will be much rather an account of German law in general than an account of that slip of German law which was planted in England: a very desirable introduction to a history of English law it may be, but hardly a part of that history. Passing by for a moment the deep question whether the English law of later times can be treated as a genuine development of Anglo-Saxon law, whether the historian would not be constrained to digress into the legal history of Scandinavia, Normandy, the Frankish Empire, we shall probably hold that the reigns of our Norman kings, including Stephen, make another good period. The reign of Henry II there might be good reason for treating by itself, so important is it. “From Glanvill to Bracton” might be no bad title, though there would be something to be said for pausing at the Great Charter. The reign of Edward I, “the English Justinian,” has claims to be dealt with separately, or the traditional line drawn between the Old Statutes and the New might make us carry on the tale to the death of Edward II. “The period of the Year Books”—Edward II to Henry VIII—is, so far at least as private law is concerned, a wonderfully unbroken period. If a break were made in it, the accession of Edward IV, the beginning of “the new monarchy” as some call it, might be taken as the occasion of a halt. The names of Coke and Blackstone suggest other halting places. After the date of Blackstone, the historian, if an Englishman dealing solely with England, would hardly stop again until he reached some such date as 1830, the passing of the Reform acts, the death of Jeremy Bentham, the beginning of the modern period of legislative activity; if an American, he would draw a marked line at the Declaration of Independence, and it would be presumption in an Englishman to guess what he would do next. But on this occasion we shall not get beyond the end of the middle ages, and for the sake of brevity our periods will be made few.
England before the Norman Conquest
The materials consist chiefly of (1) the laws, or “dooms,” as they generally call themselves; (2) the “land books” and other diplomata; (3) the ecclesiastical documents, in particular canons and penitentials.
(1) We have first a group of very ancient Kentish laws, those of Ethelbert (circa 600), those of Hlothar and Eadric (circa 675), and those of Wihtred (696). A little earlier than these last come the dooms of the West-Saxon Ine (690). Then follows a sad gap, a gap of two centuries, for we get no more laws before those of Alfred; it is to be feared that we have lost some laws of the Mercian Offa. With the tenth century and the consolidation of the realm of England, legislation becomes a much commoner thing. Edward, Ethelstan, Edmund, Edgar issue important laws, and Ethelred issues many laws of a feeble, distracted kind. The series of dooms ends with the comprehensive code of Canute, one of the best legal monuments that the eleventh century has to show. Besides these laws properly so called, issued by King and Witan, our collections include a few documents which bear no legislative authority, namely, some statements of the wergelds of different orders of men, a few procedural formulas, the ritual of the ordeal, and the precious Rectitudines Singularum Personarum, a statement of the rights and duties of the various classes of persons to be found on a landed estate, a document the date of which is at present very indeterminate. Some further light on the law of the times before the conquest is thrown by certain compilations made after the conquest, of which hereafter; to wit, the so-called Leges of the Confessor, the Conqueror, and Henry I. With scarce an exception these dooms and other documents are written in Anglo-Saxon. An ancient Latin version [vetus versio] of many of them has been preserved, and testifies to the rapidity with which they became unintelligible after the conquest.1
The dooms are far from giving us a complete statement of the law. With possibly a few exceptions there seems to have been no attempt to put the general law in writing; rather the King and the Wise add new provisions to the already existing law or define a few points in it which are of special importance to the state. Hence we learn little of private law, and what we learn is implied rather than expressed; to get the peace kept is the main care of the rulers; thus we obtain long tariffs of the payments by which offences can be expiated, very little as to land-holding, inheritance, testament, contract, or the like. We have no document which purports to be the Lex of the English folk, or of any of the tribes absorbed therein; we have nothing quite parallel to the Lex Salica or the Lex Saxonum. Again, we cannot show for this period any remains of scientific or professional work, and we have no reason to suppose that any one before the conquest ever thought of writing a text-book of law.
(2) The diplomata of this age consist chiefly of grants of land (“land books”), for the more part royal grants, together with a comparatively small number of wills. The charters of grant are generally in Latin, save that the description of the boundaries of the land is often in English; the wills are usually in English. The latest collection of them will contain between two and three thousand documents.1 If all were genuine, about one hundred of them should come from the seventh century, and about two hundred from the eighth; of course, however, many of them are not genuine, or but partially genuine, and perhaps the history of law presents no more difficult problem than that of drawing just inferences from documents which have either been tampered with or very carelessly copied. Invaluable as these instruments are, the use hitherto made of them for the purpose of purely legal history is somewhat disappointing. The terms in which rights are transferred are singularly vague and the amount of private law that can be got out of them is small. However they have only been accessible for some forty years past and their jural side1 has not yet been very thoroughly discussed. A few of the land books contain incidental accounts of litigation, but for the oldest official records of lawsuits we must look to a much later age.
(3) Besides these we have ecclesiastical documents, canons and penitentials2 which must not be neglected. During this period it is impossible to draw a very sharp line between the law of the church and the law of the realm. It is highly probable again that the penitential literature had an important influence on the development of jurisprudence, and it often throws light on legal problems, for instance the treatment of slaves.
Materials being scanty, all that is said by the chroniclers and historians of the time and even by those of the next age will have to be carefully weighed; use must be made of Beda’s works and of the Anglo-Saxon Chronicle. But the time had not yet come when annalists would incorporate legal documents in their books or give accurate accounts of litigation.
For the continental history of this same period there are two classes of documents which are of great service, but the like of which England cannot show: namely, formularies, that is, in our modern language, “precedents in conveyancing,” and estate registers, that is, descriptions of the manors of great landowners showing the names of the tenants and the nature of their services. We have, as it seems, nothing to set beside the Formulae Marculfi or the Polyptyque of the Abbot Irmino. The practice of conveying land by written instrument seems never to have worked itself thoroughly into the English folk-law, and the religious houses and other donees of “book-land” seem to have been allowed to draw up their own books pretty much according to their taste, a taste inclining towards pompous verbosity rather than jurisitic elegance. Still, it is possible that a very careful comparison of the most genuine books would lay bare the formulas on which they were constructed and show a connection between those formulas and the continental precedents. That we should have no manorial registers or “extents” from this period is much to be regretted; it suggests the inference, very probable for other reasons, that the manorial system formed itself much more rapidly in France than in England.
That we shall ever be able to reconstruct on a firm foundation a complete system of Anglo-Saxon law, of the law of the Confessor’s day, to say nothing of Alfred’s day or Ethelred’s, may well be doubted; the materials are too scanty. The “dooms” are chiefly concerned with keeping the peace; the “land books,” considering their number and their length, tell us wonderfully little, so vague, so untechnical, is their wording. Still the most sceptical will not deny that within the present century a great deal of knowledge has been secured, especially about what we may call the public law of the time. And here of course it is important to observe that the old English law is no unique system; it is a slip of German law. This makes permissible a circumspect use of foreign materials, and it should be needless to say that during the last fifty years these have been the subject of scientific research which has achieved very excellent results. The great scholars who have done that work have not neglected our English dooms; these indeed have proved themselves invaluable in many a controversy. The fact that they are written, with hardly an exception, in the native tongue of the people, whereas from the first the continental lawgiver speaks in Latin; the fact that they are almost absolutely free from any taint of Roman law; the fact that their golden age begins with the tenth century, when on the continent the voice of law has become silent and the state for a while seems dissolved in feudal anarchy,—these facts have given our dooms a high value in the eyes even of those whose primary concern was less for England than for Germany or France. There is good reason then to hope that the main outlines of the development even of private law will be drawn, although we may not aspire to that sort of knowledge which would have enabled us to plead a cause in an Anglo-Saxon hundred moot.
How much law there was common to all England, or common to all Englishmen, is one of the dark questions. After the Norman conquest we find a prevailing opinion that England is divided between three great laws, West-Saxon, Mercian, Danish, three territorial laws as it would seem. On the surface of the documents the differences between these three laws seem rather a matter of words than a matter of substance; but neither by this nor by the universality of the later “common law” are we justified in setting aside a theory which writers of the eleventh and twelfth centuries regarded as of great importance. In earlier times the various laws would be tribal rather than territorial; but we have little evidence that the Kenting could carry with him his Kentish law into Mercia in the same way that the Frank or Bavarian could preserve his national law in Lombardy; the fact that there was not in England any race or class of men “living Roman law,” may have prevented the development of that system of “personal laws” which is a remarkable feature in the history of the continent. There is much evidence, however, that in the twelfth century local customs were many and important. The difficulty of reconstructing these will always be very great unless some new materials be found; still, work on Domesday Book and on the later manorial documents may succeed in disclosing some valuable distinctions.
In noticing what has been done already, it should be needless to mention Kemble’s Saxons in England or his introductions to the various volumes of the Codex Diplomaticus. It will be more to the point to mention with regret that Konrad Maurer’s Angelsächsische Rechtsverhältnisse is to be found only in the back numbers (volumes i, ii, iii) of the Kritische Ueberschau published in Munich. The Essays in Anglo-Saxon Law (Boston, 1876), by Adams, Lodge, Young, and Laughlin, should be well known in America. The public law is dealt with in the constitutional histories of Palgrave, Gneist, Stubbs; also by Freeman, in the first volume of his Norman Conquest. To name the books of foreign writers in which Anglo-Saxon law has been touched incidentally would be to give something like a catalogue of the labors of the “Germanists.” The influence of the Danes in the development of English law has until recent years been too much neglected. It is the subject of an elaborate work by Johannes C. H. R. Steenstrup, Danelag (Copehagen, 1882). This constitutes the fourth volume of the Normannerne (1876-82).
If the history of the law which prevailed in England from 1066 to, let us say, 1200 is to be written, the history of the law which prevailed in Normandy before 1066 will have to be studied. Such study will always be a very difficult task, because, unless some great discovery remains to be made, it will be the reconstruction of law which has left no contemporary memorials of itself. We have at present hardly anything that can be called direct evidence of the legal condition of Normandy between the time when it ceased to be a part of the West-Frankish realm and a date long subsequent to the conquest of England. It is only about the middle of the twelfth century that we begin to get documents, and even then they come sparsely. What then we shall know about the period in question will be learnt by way of inferences, drawn partly from the time when Normandy was still a part of Neustria, when its written law consisted of the Lex Salica and the capitularies; partly from the Normandy of Henry II’s reign and yet later times; partly again from what we find in England after the Norman conquest. Much will always remain very dark, and there is reason to fear that a perverted patriotism will give one bias to English, another to continental writers—an American might surely afford to be strictly impartial. But enough has happened of late years to show that if historians will go deeply enough into legal problems a substantial accord may be established between them. The extreme opinions are the superficial opinions, and they are falling into discredit. The doctrines of Stubbs, Gneist and Brunner have a great deal in common. It is impossible now to maintain that William just swept away English in favor of Norman law. It is quite undeniable that new ideas and new institutions of far-reaching importance “came in with the Conqueror.” Hale made a good remark when he said:
“It is almost an impossible piece of chymistry to reduce every Caput Legis to its true original, as to say, this is a piece of the Danish, this is of the Norman, or this is of the Saxon or British law.”
But even the chemical metaphor is inadequate, for the operation of law on law is far subtler than any process that the world of matter has to show. It is not that English law is swept away by any decree to make room for Norman law; it is much rather that ideas and institutions which come from Normandy slowly but surely transfigure the whole body of English law, especially English private law. Much evidently remains to be done for Norman law, much that will hardly be done by an Englishman; but already of late years a great deal has been gained, and the student of Glanvill must have the coæval Très ancien Coutumier constantly in his hand.
In three very accessible places Heinrich Brunner has sketched the history of law in Normandy: (1) Das anglonormannischeErbfolgesystem (Leipzig, 1869); (2) Die Entstehung der Schwurgerichte (Berlin, 1871); (3) Ueberblick über die Geschichte der französischen, normannischen und englischen Rechtsquellen, in Holtzendorff’s Encyklopädie der Rechtswissenschaft (1882), page 297. In his view, Norman law is Frankish: Frankish institutions take out a new lease of life in Normandy, when they are falling into decay in other parts of the quondam Frankish Empire.
The chief materials1 for Norman legal history are:
(1) Exchequer Rolls. We possess, in whole or in part, rolls for the years 1180, 1184, 1195, 1198, 1201-03.2 They answer to the English Pipe Rolls.
(2) Collections of judgments. We have several private collections of judgments of the Exchequer in the thirteenth century, beginning in 1207,3 drawn from official records not now forthcoming.
(3) Law books. We have to distinguish:
(i) A compilation, of which both Latin and French versions exist, known as Statuta et Consuetudines Normanniae, or Établissements et Coutumes de Normandie;4 but this compilation proves to be composed of two different works: (a) a treatise which Brunner gives to the last years of the twelfth or the first years of the thirteenth century, and which Tardif dates in 1199 or 1200; and (b) a later treatise compiled a little after 1218 according to Brunner, about 1220 according to Tardif.
(ii) Then comes the Grand Coutumier de Normandie. The Latin version of this, which is older than the French, calls itself Summa de Legibus Consuetudinum Normanniae, or Summa de Legibus in Curia Laicali, and was composed before 1280 and probably between 1270 and 1275.1
There are a few later law-books of minor importance.
(4) Diplomata. Normandy is poor in diplomata of early date and, according to Brunner, many of those that exist are still unprinted; but in the Collection de Documents Inédits is a small but ancient (1030-91) Cartulaire de la Sainte Trinité du Mont de Rouen, edited by Deville in 1841; Leopold Delisle has published a Cartulaire Normand de Philippe Auguste, Louis VIII, Saint Louis, et Philippe le Hardi (Caen, 1852); and there exists in the English Record office a manuscript collection made by Léchaudé d’Anisy, entitled Cartulaire de la Basse Normandie, from various Norman Archives.2
From the Norman Conquest (1066) to Glanvill (circa 1188) and the Beginning of Legal Memory (1189)
We may classify the materials thus: (1) laws; (2) private collections of laws and legal text-books; (3) work done on Roman and Canon law; (4) diplomata; (5) Domesday Book, surveys, public accounts, etc.; (6) records of litigation.
(1) Laws. It is, as we shall see, a little difficult to draw the line between the first two classes of documents. No one of the Norman Kings was a great legislator; but we have one short set of laws which may in the main be considered as the work of the Conqueror; besides these we have his ordinance separating the ecclesiastical from the temporal courts and another ordinance touching trial by battle. Henry I’s coronation charter (1100) is of great value, and Stephen’s second charter (1136) is of some value. Henry II was a legislator; we have from his day the Constitutions of Clarendon (1164), the Assize of Clarendon (1166), the Assize of Northampton (1176), the Assize of Arms (1181) and the Assize of the Forest (1184); but we have reason to fear that we have lost ordinances of the greatest importance, in particular the Grand Assize and the Assize of Novel Disseisin, two ordinances which had momentous results in the history of private and even of public law.
(2) Private collections of laws and legal text-books. Our first class of documents shades off into the second class by the intermediation of the so-called Leges Edwardi, Willelmi, Henrici Primi. A repeated confirmation of the Confessor’s law (lagam not legem or leges Edwardi) apparently led to several attempts at the reproduction of this “good old law.” First we have an expanded version of the code of Canute (Schmid’s Pseudoleges Canuti); then we have the Leges Edwardi Confessoris, a document which professedly states the result of an inquiry for the old law made by the Conqueror in the fourth year after the conquest; but the purest version that we have alludes to the doings of William Rufus. Then we have a highly ornate and expanded version of the probably genuine laws of the Conqueror mentioned above: it looks like work of the thirteenth century. Then there is another set of laws attributed to the Conqueror, which as it appears both in French and Latin may be conveniently called “the bilingual code;” its author made great use of the laws of Canute; its history is in some degree implicated with the forgery of the false Ingulf. These various documents demand a more thorough criticism than any to which they have as yet been subjected.1 Of much greater importance is the text-book known as the Leges Henrici Primi. Until lately it was usual to give this work to the reign of Stephen or even of Henry II, on the ground that the author had used the Decretum Gratiani; but his last critic, Liebermann, says that this is not so, and dates the work between 1108 and 1118; this earlier date seems for several reasons the more acceptable.1 The writer has made a large use of the Anglo-Saxon laws, which in general he treats as still in force, but on occasion he stops gaps with extracts from the Lex Salica, Lex Ripuaria, the Frankish capitularies and some collections of canons; he has one passage which comes by a round-about way from Roman law; it is taken from an epitome of the Breviary of Alaric. Altogether he gives us a striking picture of an ancient system of law in course of dissolution and transformation; a great deal might yet be done for his text, which in places is singularly obscure.
The end of Henry II’s reign is marked by the Tractatus de Legibus et Consuetudinibus Angliae,2 usually, though on no very conclusive evidence, attributed to Ranulf Glanvill, who became chief justiciar in 1180, and died a crusader at the siege of Acre in 1190. This book, always referred to as “Glanvill,” was apparently written at the very end of Henry’s reign, and was not finished until after 1187. It is the first of our legal classics, and its orderly, practical brevity contrasts strongly with the diffuse, chaotic, antiquarian Leges Henrici. This is due in part to the fact that the author deals only with the doings of the King’s Court, which is now beginning to make itself a tribunal of first instance for all England at the expense of the communal and seigniorial courts partly also to the fact that he knew some Roman law and made good use of his knowledge in the arrangement of his matter. The great outlines of our land law have now taken shape and many of the “forms of action” are already established.
The Dialogus de Scaccario, written, as is supposed, by Richard Fitz Neal, bishop of London, between 1178 and the end of Henry II’s reign, is hardly a “law book,” but is an excellent and valuable little treatise on the practice of the Exchequer and the whole fiscal system, the work of one very familiar with his subject. This book, written by an administrator rather for the benefit of the intelligent public than for the use of legal practitioners, stands alone in our mediæval literature and must be invaluable to the historian of public law.1
(3) Work upon Roman and Canon law. In dealing with any century later than the thirteenth, the historian of English law could afford to be silent about Roman and Canon law, for, though these were studied and practised in England, and in particular many of the ordinary affairs of life, testamentary and matrimonial cases, were governed solely by the Canon law, still these laws appear in a strictly subordinate position, are administered by special courts, and exercise very little, if any, influence on the common law of England. But a really adequate treatment of the period which lies between the Norman conquest and the accession of Edward I would require some knowledge of Roman law and its mediæval history, also some knowledge of the earlier stages in the development of Canon law. Lanfranc, the right-hand man of the Conqueror, was trained in the Pavian law school, where Roman doctrines were already leavening the mass of ancient Lombard law; his subtle arguments were long remembered in Pavia. The influence of the Lombard school on Norman and English law is a theme worthy of discussion.1 Then in Stephen’s reign, as is well known, Vacarius2 lectured in England on Roman law; it has even been conjectured that the youth who was to be Henry II sat at his feet.3 Vacarius wrote a book of Roman law, designed for the use of poor scholars, a book that is extant, a book that surely ought to be in print. His school did not perish, his scholars glossed his work. There are extant, again, several books of practice of the twelfth century and the first years of the thirteenth, which good critics believe to have been written either in Normandy or in England. Among them is one that has been ascribed to William of Longchamp, who became chief justiciar of England. In many quarters there are signs that an acquaintance with Roman law was not uncommon among cultivated men. Glanvill’s work was influenced, Bracton’s work profoundly influenced, by Roman law. Some of Henry II’s most important reforms, in particular the institution of definitely possessory actions, may be traced directly or indirectly to the working of the same influence. The part played by Roman and Canon law in this critical stage of the formation of the common law deserves a minuter examination than it has as yet received.1
(4) The diplomata of this period are numerous and of great interest; they are brief, formal documents, contrasting strongly with the lax and verbose land books of an earlier age; they are for the more part charters of feoffment and grants or confirmations of franchises; they have never been properly collected. Charters of liberties granted to towns should perhaps form a class by themselves, but those coming from this age are not numerous.2
(5) Domesday Book, surveys, public accounts, etc. By far the greatest monument of Norman government is Domesday Book, the record of the survey of England instituted by the Conqueror and effected by inquests of local jurors; it was completed in the summer of 1086.3 The form of this document is generally known; it is primarily a fiscal survey; the liability for “geld” in time past, the capacity for paying “geld” in time to come are the chief points which are to be ascertained; it has been well called “a great rate book.” Incidentally, however, it gives us a marvellously detailed picture of the legal, social and economic state of England, but a picture which in some respects is not easily interpreted. Of late it has become the centre of a considerable literature;1 but the historian of law will have to regret that a great deal of labor and ingenuity has been thrown away on the impossible attempt to solve the economic problems without first solving the legal problems.
The other public records of this period consist chiefly of Pipe Rolls, that is, the rolls of the sheriffs’ accounts as audited by the Exchequer. Chance has preserved one very ancient roll, now ascribed to 31 Henry I. No other roll is found until 2 Henry II, but thenceforward the series is very continuous.2 These rolls throw light directly on fiscal machinery and administration, indirectly on numberless points of law. The feudal arrangement of England, the distribution of knights’ fees and serjeanties, the obligation of military service and so forth are illustrated by documents of Henry II’s reign contained in the Black Book of the Exchequer.1
(6) Records of litigation. Though we have evidence that before the end of Henry II’s reign pleas before the king’s court were enrolled, we have no extant plea rolls from this age. Accounts of litigation must be sought for in the monastic annals; when found they are too often loose statements of interested parties. However, a good many transcripts of procedural writs have been preserved and these are of the highest value. Before our period is out we begin to get a few “fines” (i. e. records of actions brought and compromised, already a common means of conveying land); in four cases the original documents are preserved, in other cases we have copies.2
In passing we should note that the chronicles of this age are fruitful fields. Not only do they sometimes contain documents of great importance, laws, ordinances, diplomata, but they also supply many illustrations of the working of law and from time to time give us contemporary criticism of legal measures and legal arrangements.
On the whole we have no reason to complain of the tools provided for us. We cannot say of England, as has been said of France and Germany, that between the period of the folk laws and the period of the law books lies a dark age which has left no legal monument of itself. In particular the Leges Henrici serve to mediate between the dooms of Canute and the treatise of Glanvill. The lack is rather of workmen than of implements. But it is to be remembered that it is only of late years that those implements have become generally accessible; also that we have had not only to learn but also to unlearn many things, for the whole of the traditional treatment of the legal history of the Norman time has been vitiated by the great Ingulfine forgery, one of the most splendidly successful frauds ever perpetrated. A great deal of what went on in the local courts we never shall know; but in Henry II’s day the practice and procedure of the king’s court become clear to us, and subsequent history has shown that the king’s court, becoming in course of time the king’s courts, was to have the whole fate of English law in its hands. Towards the end of the period the history of law begins to be, at least in part, a history of professional learning.
There is no very modern work devoted to the legal history of this age as a whole, but it is the subject of Georg Phillips’ Englische Reichs- und Rechtsgeschichte (1827-28). M. M. Bigelow’s History of Procedure (London, 1880) has provided for one important department. Of course constitutional history has had a large share of attention, and books have collected round Domesday and round two other points, namely, frankpledge and trial by jury. As to the former of these two points, it will only be necessary to mention Heinrich Marquardsen’s Haft und Bürgschaft bei den Angelsachsen (Erlangen, 1852), as this will put its reader in the current of the discussion. As to the latter, Brunner’s brilliant book, Entstehung der Schwurgerichte, has already been named; William Forsyth’s History of Trial by Jury (1852), and Friedrich August Biener’s Das Englische Geschwornengericht (Leipzig, 1852) are useful, though chiefly as regards a somewhat later time.
From the Coronation of Richard I to the Death of Edward I
Our sources of information now begin to flow very freely, and so much has already been printed that very probably the historian would find it easier to paint a life-like picture of the thirteenth century than to accomplish the same task for either the fourteenth or the fifteenth. We may arrange the materials under the following heads: (1) laws; (2) judicial records; (3) other public records; (4) law books; (5) law reports; (6) manorial law; (7) municipal and mercantile law.
(1) Laws. For reasons which will soon appear, we use the untechnical term “laws” rather than any more precise term. Neither Richard nor John was a legislator; they give us nothing that can be called laws except a few ordinances touching weights, measures, money, the prices of victuals. At the end of his reign, however, John was forced to grant the Great Charter (1215); this, if it is a treaty between the various powers of the state, is also an act declaring and amending the law in a great number of particulars; to use terms familiar in our own day, Magna Carta is an act for the amendment of the law of real property and for the advancement of justice. The various editions (1215-16-17-25) of the charter being distinguished, we note that it is the charter of 1225 which becomes the Magna Carta of subsequent ages and which gets to be generally considered as the first “statute.” The term “statute” is one that cannot easily be defined. It comes into use in Edward I’s reign; supplanting “provisions,” which is characteristic of Henry III’s reign; which had supplanted “assize,” characteristic of Henry II’s, Richard’s, John’s. Our extant Statute Rolls begin with the statute of Gloucester (1278), and it is very doubtful whether before that date any rolls were set apart for the reception of laws. Some of the earlier laws of our period are to be found on other rolls, Patent, Close, Coram Rege Rolls: others are not to be found on any rolls at all, but have been preserved in monastic annals or other private manuscripts.1 In later times of course it became the settled doctrine that in a “statute” king, lords and commons must have concurred, and that a rule laid down with such concurrence is a “statute.” But with our improved knowledge of the history of Parliament we cannot insist on this doctrine when dealing with the thirteenth century. Some of the received “statutes” even of Edward I’s day, to say nothing of Henry III’s, were issued without any participation by the commons in the legislative act. After the charter of 1225 we have the statute (or provisions) of Merton (1236), the provisions of Westminster (1259), the statute of Marlborough (1267), all of the first importance; and upon these follows the great series of Edward I’s statutes, a most remarkable body of reforming laws. Hale’s saying about Edward I was very true:
“I think I may safely say, all the ages since his time have not done so much in reference to the orderly settling and establishing of the distributive justice of this kingdom, as he did within a short compass of the thirty-five years of his reign; especially about the first thirteen years thereof.”
(2) Judicial records. The extant Plea Rolls (rolls of pleadings and judgments) of the king’s courts begin in 1194 (6 Richard I), and though we have by no means a complete series of them, we have for the thirteenth century far more than any one is likely to use. These rolls fall into divers classes; there are Coram Rege (King’s Bench) Rolls, De Banco (Common Pleas) Rolls, Exchequer Rolls, Eyre Rolls, Assize Rolls, Gaol Delivery Rolls. The enormous value of these documents to the historian is obvious; they give him a very complete view of all the proceedings of the royal tribunals.1 The rolls of the thirteenth century are in one respect better material than those of later times, since they frequently give not merely the judgment but the ratio decidendi expressed in brief, neat terms. We also begin to get by the thousand “feet of fines,” i. e. records of actions brought and compromised as a means of conveying land. The light which these hitherto neglected documents throw upon the history of conveyancing will some day be appreciated.2
(3) Other public records. The Pipe Rolls continue to give us the sheriff’s accounts; but their importance now becomes much less, since they are eclipsed by far more communicative rolls, namely, the Rolls of Letters Patent and Letters Close, the Fine Rolls and the Charter Rolls. These enable us to study in minute detail the whole of the administrative machinery of the realm; and, owing to the publication of those belonging to John’s reign, the governmental work of that age can be very thoroughly understood and illustrated. The Charter Rolls contain copies of the royal grants made to municipalities and to individuals, and thus to some extent they supply the place of a Codex Diplomaticus. Then from Edward I’s reign we have parliamentary records, a broken series of Rolls of Parliament, of Petitions to Parliament, and Pleas in Parliament.1
(4) Law books. In England as elsewhere the thirteenth century might be called “the period of the law books;” that is to say, the historian of this period will naturally reckon text-books, notably one text-book, as among the very best of his materials.
(a) Bracton’s Tractatus (or Summa) de Legibus et Consuetudinibus Angliae is by far the greatest of our mediæval law books. It seems to be the work of Henry of Bratton, who for many years was a judge of the king’s court and who died in 1268. It seems also to be an unfinished book and to have been composed chiefly between the years 1250 and 1256. It covers the greater part of the field of law. In laying out his scheme the author has made great use of the works of Azo, a Bolognese civilian, and thence he has taken many of the generalities of law; he may also have made some study of the Roman books at first hand; but he was no mere theorist; at every point he appeals to the rolls of the king’s court, especially to the rolls of two judges already dead, Martin of Pateshull and William of Raleigh; his law is English case law systematized by the aid of methods and principles which have been learnt from the civilians. A Note Book full of cases extracted from the rolls has recently been discovered, and there is some reason for thinking that it was made by or for Bracton and used by him in the composition of his treatise.2
(b) “Fleta” is the work of an anonymous author, seemingly compiled about 1290. It gets its name from a preface which says that this book may well be called Fleta since it was written “in Fleta,” i. e. in the Fleet gaol. In substance it is an edition of Bracton much abridged and “brought up to date,” by references to the earlier statutes of Edward I. It has however some things that are not in Bracton, notably an account of the manorial organization; this the writer seems to have obtained from what we may call “the Walter of Henley literature,” to which reference will be made below.
(c) Bracton and Fleta are Latin books: “Britton” is our first French text-book. It seems to have been written about 1290. The writer made great use of Bracton and perhaps he used Fleta also; but he has better claim to be treated as an original author than has the maker of Fleta. He arranges Bracton’s material according to a new plan, and puts his whole book into the king’s mouth, so that all the law in it appears as the king’s command. Who he was we do not know; he has been identified with John Le Breton, a royal judge and bishop of Hereford; but the book, as we have it, mentions statutes passed after the bishop’s death. To judge by the number of existing manuscripts, Bracton and Britton both became very popular, while Fleta had no success.1
(d) Selden had a manuscript purporting to contain Bracton’s treatise abridged by Gilbert Thornton in the twentieth year of Edward I; Thornton was chief justice. Selden’s manuscript is not forthcoming and he did not know of any other like it. Possibly, however, Thornton’s abridgment is represented by some of the existing manuscripts which give abbreviated versions of Bracton’s book.
(e) Works of minor importance are two little treatises on procedure by Ralph Hengham, known respectively as Hengham Magna and Hengham Parva; a small French tract of uncertain date, also on procedure, known from its first words as Fet assavoir; and various little tracts found in manuscripts under such titles as Summa ad cassandum omnimoda brevia, Summa quae vocatur Officium Justiciariorum, Summa quae vocatur Cadit Assisa, Placita placitata, and the like. They are of an intensely practical character, but deserve to be collected.1
(f) To Edward II’s reign, or perhaps to the end of his father’s, we must attribute the interesting but dangerous Mirror of Justices of Andrew Horne, fishmonger and town clerk of London.2 It is the work of one profoundly dissatisfied with the administration of the law by the king’s judges. As against this he appeals to myths and legends about the law of King Alfred’s day and the like, some of which myths and legends were perhaps traditional, while others may have been deliberately concocted. Intelligently read it is very instructive; but the intelligent reader will often infer that the law is exactly the opposite of what the writer represents it to be. It has done much harm to the cause of legal history; it imposed upon Coke and even in the present century has been treated as contemporary evidence of Anglo-Saxon law.
(g) There is hardly any book more urgently needed by the historian of English law than one which should trace the gradual growth of the body of original writs, i. e. of the writs whereby actions were begun; such writs were the very skeleton of our mediæval corpus juris. The official Registrum Omnium Brevium as printed in the sixteenth century (1531, 1553, 1595, 1687) is obviously a collection that has been slowly put together. It is believed that extant manuscripts still offer a large supply of materials capable of illustrating the process of its growth. Some of the manuscript collections of writs go back to Henry III’s reign, and occasionally have notes naming the inventors of new writs.1 Here is a field in which excellent work might be done.
(5) Law reports. Just at the end of the thirteenth century there appear books of a new kind, books whose successors are to play a very large part in the legal history of all subsequent ages; we have a few Year Books of Edward I’s reign.2 These are reports in French by anonymous writers of the discussions which took place in court between judges and counsel over cases of interest; whether they bore any official sanction we do not know. They are of special value as showing the development of legal conceptions, which is better displayed in the dialectic process than in the formal Latin record which gives the pleadings and judgment in their final form; we learn what arguments were used and also what arguments had to be abandoned. But for the period now in question we can only give the Year Books a secondary place among our materials.
(6) Manorial law. Of late years our horizon has been enormously extended by the revelation of vast quantities of documents illustrative of manorial law and custom, a department of law which has hitherto been much neglected, but which is of the very highest interest to all students of economic and social history.
(a) In the first place we have numerous “extents” of manors, i. e. descriptions which give us the number and names of the tenants, the size of their holdings, the legal character of their tenure and the kind and amount of their service; the “extent” is a statement of all these things made by a jury of tenants. Such extents are found in the monastic cartularies and registers. Among these we may mention the Boldon Book, which is an account of the palatinate of Durham, the Glastonbury Inquisitions, the Cartulary of Burton Abbey, the Domesday of St. Paul’s, the Register of Worcester Priory, the Cartularies of Gloucester, Ramsey and Battle. A few of those mentioned at the head of our list take us back into the twelfth century. There are still several cartularies which ought to be printed. The “Hundred Rolls” compiled in Edward I’s reign give us the results of a great inquest prosecuted by royal authority into “the franchises,” i. e. the jurisdictional and other regalia which were in the hands of subjects; we thus obtain an excellent picture of seignorial justice. But for certain counties and parts of counties these Hundred Rolls give us far more, namely, full “extents” of all manors. They thus serve to supplement and correct the notions which we might form if we studied only the ecclesiastical manors as displayed in the cartularies.1
(b) Almost nothing has yet been done towards the publication of a class of documents which are quite as important as the “extents,” namely, the earliest rolls of the manorial and other local courts. We have a few older than 1250, a considerable number older than 1300.2 They show the manorial system in full play, illustrate all its workings and throw light on many points of legal history which are not explained by the records of more exalted courts.1
(c) Little known to the world, there is a small but complicated literature of tracts on “husbandry” and the management of manors. In whole or in part it is often associated with the name of a certain “Walter of Henley.” The author of Fleta has made use of it in his well-known chapter on the manorial system. Further investigation will perhaps distinguish between two or three tracts that are intertwined in the manuscripts and presented in varying forms. An edition of all or some of these tracts has been projected. They bear directly rather on agricultural and economic than on legal history; but the historian of manorial law cannot afford to neglect them.2
This department of mediæval law, concerning as it does the great mass of the population, is beginning to attract the attention that it deserves. The traditional learning of lawyers about the manorial system went back only to comparatively recent times and their speculations about earlier ages had been meagre and fruitless. A new vista was opened by Erwin Nasse’s Ueber die mittelalterliche Feldgemeinschaft in England (Bonn, 1869), which was translated into English by H. A. Ouvry (1871). H. S. Maine’s Lectures on Village Communities in the East and West (1876) drew the attention of Englishmen to the work that had been done in Germany. Frederic Seebohm’s English Village Community (1883) came into sharp conflict with what were coming to be accepted doctrines and must lead to yet further researches. In 1887 Paul Vinogradoff published at St. Petersburg a Russian treatise in which much use was made of our manorial extents and rolls; a larger work in English by the same hand is expected. This of course is a department in which legal and economic history meet; and it has become clear that the historian of law must realize the economic meaning of legal rules while the historical school of economists must study mediæval law.
(7) Municipal and mercantile law. The growth of municipal institutions, the development of guilds and corporations, are now recognized topics of “constitutional history.” But a great deal remains to be done towards the publication of documents illustrating the laws and customs administered in the municipal courts. In particular there is much to be discovered about “the law merchant.” Before the end of the thirteenth century the idea had been formed of a lex mercatoria, to be administered between merchants in mercantile affairs, which differed in some respects from the common law. Throughout the middle ages the merchants had special tribunals to go to, and consequently very few of their affairs are noticed in the Year Books. Whether very much of this law merchant can be recovered may be doubtful, but until the archives of our cities and boroughs have been thoroughly explored by some one who knows what to look for, we shall do well to believe that something may yet be learned.1
From Edward III to Henry VIII
About the remainder of the middle ages we must speak more briefly. On the whole the law has no longer to be sought in out of the way or but newly accessible sources; it may be found in books which lawyers have long had by them and regarded not merely as evidence of old law but as authority, namely the Statute Book, the Year Books and the very few text-books which this age presents. It would be a great mistake, however, to suppose that these sources should be exclusively used or that they are in the state in which they ought to be.
After Edward the Third’s accession we can insist on a strict definition of a statute. The more important laws of a general character are placed on the Statute Roll and about their text there can seldom be any dispute; we have a good official edition of them. But the Parliament Rolls, an unfortunately broken series, also should be studied, as they often show the motives of the legislators and also contain some of those acts of Parliament which were not thought of sufficient general and permanent importance to be engrossed on the Statute Roll; a great deal that concerns trade and agriculture and villainage and the working of the inferior organs of the constitution, in particular the new magistracy, the justices of the peace, must be sought rather in the Parliament Rolls than among the collections of statutes. Again, most of the other series of non-judicial rolls mentioned above are continued; and though they are not of such priceless value for this as for former periods, they should certainly not be neglected by any one who wishes to make real to himself and others the working of our public law. A great deal of that law never comes into the pages of the Year Books and for that reason has remained unknown to us.
We turn to the law reports. A series of Year Books extends from Edward II to Henry VIII, from 1307 to 1535. They got into print piecemeal at various times; the most comprehensive edition is one published in ten volumes, 1678-80. This edition has about as many faults as an edition can well have; it teems with gross and perplexing blunders. Happily it is not complete, and we have thus been enabled to contrast a good with a bad edition. It leaves a gap between the tenth and the seventeenth years of Edward III. This gap is being gradually filled up in the Rolls series by L. O. Pike, who has already given the books for the years 11-14 Edward III; but there are several other considerable gaps to be filled, one for instance between the thirtieth and thirty-eighth years of the same reign, another representing the whole reign of Richard II. Henry VIII’s long reign is scurvily treated, and though we begin now to get a little help from reporters whose names are known, from Dyer and others, still it is true that we have singularly few printed memorials of the law of this important time. An edition of all the Year Books similar to that which we now have in the Rolls series for a few lucky years of Edward III would be an inestimable gain, not merely to the historian of law but to the historian of the English people.
One of the many excellent features of these newly published Year Books of Edward III’s reign consists of further information about the cases there reported, which information has been obtained from the Plea Rolls. Often the report of a case in the Year Books is but partially intelligible to modern readers until they are told what are the pleadings and the judgment formally recorded on the official roll of the court. The Plea Rolls are extant. To print even a few rolls of the fourteenth or fifteenth century would be a heavy task, so copious is the flow of litigation, so lengthy have the pleadings by this time become.1 Still, in that new edition of the Year Books which is urgently needed, a brief statement of the recorded pleadings and judgment ought to be frequently given. But this is not the only use that should be made of the rolls. The Year Books, invaluable though they be (or would be were they made legible), are far from giving us a complete view even of the litigation of the period, to say nothing of a complete view of its law. They are essentially books made by lawyers for lawyers, and consequently they put prominently before us only those parts of the law which were of immediate interest to the practitioners of the time; an exaggerated emphasis is thus laid on minute points of pleading and practice, while some of the weightiest matters of the law are treated as obvious and therefore fall into the background. If anything like a thorough history of “the forms of action” is to be written, the Plea Rolls as well as the Year Books must be examined. The work of turning over roll after roll will be long and tedious, but greater feats of industry have been performed with far less gain in prospect. To give one example of the use of the Plea Rolls, let us recall Darnel’s Case, the famous case of Charles I’s day, about the power of the king and the lords of the council to commit to prison. The question what were the courts to do with a man so committed could not be answered out of the Year Books, it had to be answered out of the Plea Rolls. These rolls contain an exhaustive history of the writ of habeas corpus, the Year Books have little about it, for cases about “misnomer” and the like had been far more interesting to lawyers than “the liberty of the subject.” And so it is be suspected that the new principles of private law which appear in the Year Books of Edward IV—the rise of the action of assumpsit, the doctrine of consideration, the protection of copyholders, the conversion of the action of ejectment into a means of trying title to lands, the destruction of estates tail by fictitious recoveries—that all these and many other matters of elementary importance might be fully illustrated from the Plea Rolls, whereas the Year Books give us but dark hints and unsolved riddles.
The manor becomes steadily of less importance during this period; but that is no reason why the manorial rolls, of which we have now an ample supply, should be neglected; but neglected they have hitherto been. The historian should take account not only of growth but of decay also, and the records of this time should give the most welcome evidence as to the effect of great social catastrophes, the black death, the peasants’ revolt, the dissolution of the monasteries, and also as to the formation of what comes to be known as copyhold tenure. And again, turning from country to town, we shall not believe that the development of the law merchant has left no traces of itself until some one has given a few years to hunting for them.
Still more important, at least more exciting, is the history of the jurisdiction of the Council and of the new courts which arise out of it, the Court of Star Chamber, the Court of Chancery. Much has been recovered, but assuredly much more can be recovered. There are large quantities of Chancery proceedings to be examined; and it is impossible to believe that we shall always be left in our present state of utter ignorance as to the sources of that equitable jurisprudence which in course of time transfigured our English law, be left guessing whether the chancellors trusted to natural reason, or borrowed from Roman law, or merely developed principles of old English law which had got shut out from the courts of common law by the rigors of the system of writs.1
With a few, and these late exceptions, the text-books of the time are of little value; with the thirteenth century died the impulse to explain the law as a reasonable system and give it an artistic shape. Still that is no reason why such books as there are should be left in their present dateless, ill-printed or even unprinted condition; the Old Tenures, the Old Natura Brevium, the Novae Narrationes want editors; and towards the end of our period we get some “readings” which should be published, such as Marrow’s Reading on Justices of the Peace, a work which Fitzherbert and Lambard treated as of high authority. Littleton’s Tenures, which marks the revival of legal and literary endeavor under Edward IV, has had enough done for it by its great commentator, in some respects more than enough, for the historian will have to warn himself against seeing Coke in Littleton.1 Needless to say it is a very good book; and the last parts of it, now little read, are a most curious monument of the dying middle ages. They only become really intelligible and lifelike in the light of the Paston Letters and similar evidence, a light which reveals the marvellous environment of violence, fraud and chicane in which an English gentleman lived. Under Henry VIII, Fitzherbert begins the work of summing up our mediæval law in his Abridgement and his New Natura Brevium. Sir John Fortescue’s works give excellent illustrations of several legal institutions, notably of trial by jury, though as a whole they are rather concerned with politics than with law.2
Here I must stop, without of course intending to suggest that history stops here. The historian of modern law—the historian, let us say, who should choose as his starting point the reign of Elizabeth—would have before him an enormously difficult task. The difficulty would lie not in a dearth but in a superabundance of materials. To trace the development of the leading doctrines at once faithfully and artistically would require not only vast learning but consummate skill, such a combination of powers as is allowed to but few men in a century. But the result might be one of the most instructive and most readable books ever written, one of the great books of the world. However, no one who feels the impulse to undertake such a work will need to be told how to set about it or whither to look for his materials. It is somewhat otherwise as regards the middle ages; those who have seen a little of our records printed and unprinted may be able to give a few acceptable hints to those who have seen less, and it is with some vague hope that the above notes may be of service to beginners that they have been strung together; may they soon become antiquated, even if they are not so already! They should at least convey the impression that there is a great deal to be done for English mediæval law; much of it can only be done in England, for we have got the documents here; but there is no reason why it should not be done by Americans. We have piles, stacks, cartloads of documents waiting to be read—will some one come over into England and help us?1
THE YEAR BOOKS1
THE Year Books are the Law Reports of the Middle Ages, written by lawyers for lawyers. From the reign of Edward I to the reign of Richard III they stretch in a series which is almost continuous. In the reigns of Henry VII and VIII they become more and more intermittent; and the last printed Year Book is of the Trinity term 27 Henry VIII. During the terms and years of these centuries they give us an account of the doings of the King’s Courts which are either compiled by eye-witnesses or from the narratives of eye-witnesses. They are the precursors of those vast libraries of reports which accumulate wherever the common law, or any legal system which has come under its influence, is studied and applied. If we except the plea rolls they are the only first-hand account we possess of the legal doctrines laid down by the judges of the fourteenth and fifteenth centuries, who, building upon the foundations which had been laid by Glanvil and Bracton, constructed the unique fabric of the mediaeval common law. Because they are contemporary reports they are of the utmost value, not only to the legal historian, but also to the historian of any and every side of English life. Just as the common law is a peculiarly English possession, so these reports of the doings of the Courts which constructed this common law are a peculiarly English source of mediaeval history. No other nation has any historical material in any way like them. Yet, until well on into the last century, they existed only in black letter books, published in the seventeenth century, and printed in contracted law French so carelessly as to be in many instances unintelligible; and the greater part of them are still in this condition. No one had cared to study the manuscripts upon which these printed books were based; and the tale told by tradition as to their origin was accepted without question and without verification. For about the last forty years their unique historical importance has been gradually arousing some interest in them. The work done upon them by the late Mr. Horwood and by Mr. Pike for the Rolls Series, and, above all, the work done upon them by Professor Maitland for the Selden Society, has taught us much of their origin, of the language in which they are written, and of their meaning and importance in the history of England and of English law. It is proposed in this paper to say something of the results which have been reached in ascertaining the position which the Year Books hold among the sources of English legal history, and to indicate the manner in which they illustrate certain aspects of the development of English law.
We shall consider (1) the manuscripts and printed editions of the Year Books, (2) the origin and characteristics of the Year Books, and (3) the Year Books and the development of English law.
The manuscripts and printed editions of the Year Books
Until the publication of some of the unpublished Year Books in the Rolls Series practically no attention at all had been paid to the MSS. of the Year Books. The legal profession and even the legal historians never went beyond the printed books, or the Abridgements which had been published in the sixteenth century. No doubt many of these MSS. are lost, superseded by the printed page.1 Like the works of the lawyers who lived before the age of Justinian they became useless and disappeared. But when in the last half of last century the work of editing the Year Books began again it appeared that many still survived.
Mr. Horwood, describing a large MS. in the Cambridge University library, from which he took the text of the Year Book 20 & 21 Edward I, tells us that, besides the reports of those years, “there is a large body of cases illustrative of pleadings in various writs, and nearly forty consecutive folios (370-409) of cases which, from the names of the judges, must have occurred in or before 18 Edward I” (1290).1 Fitzherbert also used for his Abridgements not only Bracton’s Note Book, but also reports which came from 12 & 13 Edward I (1284-5), as well as a number of undated cases of the time of Edward I.2 Professor Maitland says that there are numerous cases which come from a period before the dismissal of the judges in 1289; “and,” he says, “we may add that one of our manuscripts contains a few cases which, unless we are much mistaken, belong rather to the seventies than to the eighties of the thirteenth century: cases decided by men who were on the bench in Henry III’s day, and who must have known Bracton.”3 Some of these MSS. give very concise notes of cases. They are rather head notes than reports.4 Altogether the number of MSS. containing reports of cases of the reign of Edward II and earlier which have come before Professor Maitland is thirteen;5 they all present striking differences from each other.6 “We are tempted,” he says, “to say that whereas an investigator of manuscript literature can generally assume that every codex has only one parent, the ordinary laws of procreation hold good among these legal volumes, and that each of them has had two parents—two if not more. We could not explain this intimacy, were it not that we have before us the work of men who live in close fellowship with each other.”7 The number of MSS. which Mr. Pike has used is smaller; but here again the differences between the MSS. are very considerable, and no one MS. can be considered as preëminent.1 The marginal notes which their owners have fixed to them show that they have been extensively used.2
Until we get a modern edition of the whole of the Year Books it is impossible to say much of the MSS. of later years. Perhaps these MSS. will tell us something of the mode in which the later reports were made, and the manner in which they were circulated among the members of the legal profession—matters about which we are still very ignorant. For the present we have only the old printed editions, in which the whole of the reign of Richard II and some of the years of Henry V and VI’s reigns are omitted;3 and the new printed editions of some of the years of the three Edwards, published in the Rolls Series and by the Selden Society. Of these printed editions, old and new, we must now say something.
It was not till seven or eight years after the introduction of printing into England that the Year Books began to get into print;4 and it was only gradually and by degrees that some of the many existing MSS. attained to this dignity. From the end of the seventeenth century to the middle of the nineteenth century no new MSS. were printed.
Probably the earliest printer of Year Books was William de Machlinia (1481 or 1482). He is thought to have printed Y. B. 30-37 Henry VI, and possibly Y. B. 20 Henry VI. Pynson (1493-1528) was their earliest systematic publisher. Fifty editions certainly, and perhaps five more, bear his name. Sixteen others are also attributed to him. His editions published between 1510 and 1520 cover 40-50 Edward III, most of the years of Henry VI and Edward IV, and the almost contemporary years of 9 & 12 Henry VII and 14 Henry VIII. Rastell, Redman, Thomas Berthelet, William Myddelton, Henry Smyth, and William Powell were their chief publishers during the first half of the sixteenth century.1 They published them in separate years separately folioed and dated. At most two were bound together. The booksellers or the lawyers bound these parts together in chronological order.2
In 1553 Richard Tottell began his publications of the Year Books. During the thirty-eight years of his activity he succeeded in driving out all his rivals. “There are,” says Mr. Soule, “about 225 known editions of separate years or groups of years which bear his imprint or can be surely attributed to his press.” Early in his publishing career Tottell began to publish the separate years in groups. Thus in 1553 he printed the years 1-14 Henry IV as one book; so, in 1555 he printed the years 1-21 Henry VII, in 1556 the years 40-50 Edward II, in 1562 the years 1-10 Edward III, and in 1563 the years of Henry V.3
From 1587 to 1638 onwards the Year Books were published in parts; and these parts are known as the quarto edition—though really they consisted of small folio volumes. The parts were published as follows:—
Thus it is only in the first part of this so-called “Quarto” edition that the original plan of publication in separate years survives.
Between 1638 and 1679 there was a cessation in the publication of the Year Books. They grew so scarce that in 1678 a complete collection was said to have been sold for £40.1 In 1679 there appeared the standard edition of the Year Books. It consists of eleven parts, the first only of which is new. The first part purports to be the Year Books of Edward I and II’s reign, “selonq les ancient Manuscripts ore remanent en les Maines de Sir Jehan Maynard Chevalier Serjeant de la ley.” It consists of Memoranda in Scaccario only of 1-29 Edward I, and Year Books of 1-19 Edward II. The other ten parts are substantially a reprint of the quarto edition arranged chronologically. The edition is in large folio. Two sides of the leaf of the older edition are contained on one page—a letter B in the margin marking the reverse of the sheet.
This edition therefore for the most part simply reprints those of the Year Books which had been already collected by the industry of the law publishers of the end of the sixteenth and the beginning of the seventeenth centuries. Neither the older editions nor the later show any signs of careful editing. In some cases, where two reports of the same case were found in different MSS., “the second report is dissociated from the first, and either made to appear as a report of a different case, or else labelled as a residuum or continuation.”1 It is true that Tottell takes credit to himself for having done something in the way of correction;2 and there are a few signs that in some cases more than one MS. has been consulted.3 The edition of 1679 also claims to be corrected and amended; but in the opinion of those most competent to judge this claim is not justified. Professor Maitland has collected crushing evidence of the carelessness with which it has been printed.4 He shows that the MS. which Maynard lent, and the table of matters which he furnished, have been so printed that it is almost impossible to make sense of the greater part of the cases. “Of mere, sheer nonsense those old black letter books are but too full.”5 And at the present day the books which served lawyers “steeped in the old learning of real actions” will not serve us, because “we have not earned the right to guess what a mediaeval law report ought to say.”6 Probably Maynard, whose life covered nearly the whole of the seventeenth century,7 was the last who had thus earned the right to guess what the report ought to have said. The other ten parts of the standard edition are not perhaps so bad as the first part. The printer had a printed text before him and not merely a MS.; but even so, Mr. Pike says that the earlier editions are preferable to the later editions. The truth is that the same causes which caused the Register of Writs to become an obsolete book caused the Year Books to become obsolete reports. A large, perhaps the largest, part of the cases reported turned upon the management of a system of procedure which had practically come, with the disuse of many of the older writs, to belong to the past; and the language in which these cases were reported gradually grew more and more unlike that which the lawyers used. What was valuable in the Year Books had passed into the printed Abridgements. For the new law there were modern reports written in modern style.
From 1679 to 1863 nothing was done for the Year Books. The Select Committee on Public Records reported in 1800 that the series of Year Books should be completed by publishing those hitherto unpublished, and by reprinting from more correct copies those which were already in print.1 This recommendation was not followed till 1863, when a series of unpublished Year Books of Edward I’s reign and one year of Edward III’s reign were edited for the Rolls Series by Mr. Horwood between the years 1863 and 1883. In 1885 Mr. Pike took up Mr. Horwood’s work upon the Year Books of Edward III’s reign. He was the first to begin the practice of collating the Year Books with the plea roll—the formal record of the case—and he thereby has shown us, “who have not earned the right to guess,” the way to verify.2 “The process,” says Mr. Pike, “of comparing a report with a record serves a double purpose. On the one hand it gives an authority to the text which would otherwise be wanting, it furnishes a means of deciding between conflicting MSS., and it affords a key to the correct translation of doubtful passages. On the other hand it supplies a ready mode of extracting, from a very valuable but extremely bulky and much neglected class of records, precisely that kind of information which is of the highest value and of the greatest interest. The Year Books are, in fact, to those who know how to use them, the most perfect guides to almost all that is important in the rolls.”1 It has been truly said that this step “will hereafter be regarded as an important advance in the study of English history.”2 Professor Maitland has followed Mr. Pike’s lead in the edition of the Year Books of Edward II’s reign which the Selden Society is publishing under his editorship. The excellence of the editing, the introductions and the notes will, if the series continue, go far to justify Professor Maitland’s assertion that “our formulary system as it stood and worked in the fourteenth century might be known so thoroughly that a modern lawyer who had studied it might give sound advice, even upon points of practice, to a hypothetical client.”3 But to understand the full force of this saying we must pass to our second section—the origin and characteristics of the Year Books.
The origin and characteristics of the Year Books
Till quite recent years it was believed that the Year Books, at all events the Year Books from Edward III’s reign down to Henry VII’s reign, were compiled by official reporters paid by the Crown. This belief, which was shared by Coke,4 Bacon,5 and Blackstone,6 ultimately rests upon some words used by Plowden in the preface to his reports. “As I have been credibly informed,” he says, “there were anciently four reporters of cases in our law who were chosen and appointed for that purpose, and had a yearly stipend from the King for their trouble therein; which persons used to confer together at the making and collecting of a report, and their report being made and settled by so many, and by men of such approved learning, carried great credit with it.” It is clear that Plowden’s statement rested merely upon report; and the statements of later authorities are merely amplifications of his words.
Sir Frederick Pollock has suggested to me that Plowden’s words do not necessarily refer to the Year Books at all. He thinks that they may refer simply to legends of good old days which never had any historical existence. Plowden is not, as Sir Frederick Pollock suggests, writing history: he is simply finding a rhetorical excuse for his shyness in publishing his own reports. If, in fact, any regular system of reporting by official reporters had been in force in the latest period of the Year Books he might well have known men who had personal knowledge of it; and surely both his praise of its merit and his regret for its discontinuance would have been more definite. Sir Frederick Pollock, therefore, inclines to the view that the tale of the official origin of the Year Books is pure fiction. Additional probability is lent to this view by the following passage which occurs later in Plowden’s preface:—
“And (in my humble Apprehension) these Reports [i. e. his own] excell any former Book of Reports in Point of Credit and Authority, for other Reports generally consist of the sudden sayings of the Judges upon Motions of the Serjeants and Counsellors at the Bar, whereas all the Cases here reported are upon Points of Law tried and debated upon Demurrers or special Verdicts, Copies whereof were delivered to the Judge, who studied and considered them, and for the most part argued in them, and after great and mature Deliberation gave Judgment thereupon, so that (in my opinion) these Reports carry with them the greatest Credit and Assurance.”
The reports to which Plowden considers his own to be superior cannot well be the same as those of the four men; for he evidently considered his own to be inferior to them. On the other hand these reports which he considered to be inferior to his own are very probably the Year Books. They answer to his description of these inferior reports; and they are in fact inferior to his own reports in exactly the points which he notes. If this suggestion be true the whole foundation for the belief in the official origin of the Year Books is destroyed. But however this may be, the three most recent editors of Year Books, Mr. Horwood,1 Mr. Pike,2 and Professor Maitland,3 are inclined, for the following reasons, to think that there is very little ground for the traditional belief—that it is certainly not true of the earliest Year Books, and probably not true of any. (1) We do not find any official record of the appointment of such reporters, nor are payments to them anywhere enrolled. (2) If the reports were made by royal officials we should expect to find official copies preserved for the use of the Court; but, says Professor Maitland, “so far as we are aware our manuscript Year Books always come to us from private hands.”4 (3) As we have seen, the MSS. are so markedly different from one another that it is difficult to suppose that they spring from one official original.5 (4) We shall see that the varied and picturesque nature of their contents forcibly suggest that they owe their origin to the enterprise of private members of the legal profession. Even the judges come in for their share of criticism; and in one case the reporter hints that the dissent of a judge from his brethren arose from the fact that he had just been raised to the bench, and had argued the case at the bar.6 That an official reporter should thus have imputed motives is almost inconceivable. In one early MS. there are notes of conversations between the writer and his friends or pupils.7 We naturally think of those associations of students living together in hostels from which sprang the Inns of Court. (5) Further probability is given to this view by the fact that “we see a most remarkable contempt for the non-scientific detail of litigation: especially for proper names. These very often are so violently perverted that we seem to have before us much rather the work of a man who jotted down mere initials in court, and afterwards tried to expand them, than the work of an official who had the faithful plea rolls under his eye.”1 The divergent versions of the same case which the manuscripts present to us make it probable that their authors were men writing for themselves, who not only simplified facts, but also expanded arguments, and even invented both facts and arguments.2 It is useful perhaps to remember that Plowden—one of the earliest of our modern reporters—called his reports commentaries. (6) At the end of Edward I’s reign there was no up-to-date textbook extant embodying the results of Edward I’s legislation. The only ways in which the student or the practitioner could learn modern law was by attending court, taking or borrowing notes, and discussion. For these reasons the weight of evidence is all against the old belief in the official origin of the Year Books. The earliest of them, Professor Maitland thinks, are “students’ notebooks.”3
In course of time the system of reporting gradually developed to meet the obvious needs of a legal profession engaged in administering a system of law, the principles of which depended almost entirely upon the practice of the Court. Just as books of precedents of writs and pleadings were necessary in order that the lawyer might present his case in proper form to the Court, so reports of decided cases were necessary if he was to know the principles which the Court would apply to decide the case. Indeed it is probable that it was only gradually that these books of precedents were differentiated from the law report.4 The book of precedents occasionally borrows from the Year Book;1 and the Year Book sometimes gives us extracts from the pleadings, and thus serves the purpose of a book of precedents. The two things came, however, to be entirely distinct. Broadly speaking, the book of precedents deals with the formal and the procedural side of legal practice, while the Year Book deals chiefly with the application of the principles which underlie, not only the procedural rules, but also the rules of substantive law. Thus for an intelligent understanding, an intelligent application of the precedents, the reports in the Year Books were essential; and perhaps to many practitioners this consideration was a greater incentive to the study of the Year Books than the fact that it was only through them that a knowledge of the principles of the law could be attained. “The spirit of the earliest Year Books,” says Professor Maitland, “will hardly be caught unless we perceive that instruction for pleaders rather than the authoritative fixation of points of substantive law was the primary object of the reporters.”2 But though the needs of the pleader may have been the paramount consideration in the minds of the earliest reporters, though such needs always continued to be an important consideration, it had been clear, since the days of Bracton, that without a knowledge of the doings of the Courts there could be no knowledge of English law. His treatise could not have been written if he had not had access to such information through the records which he had retained for a period.3 But records were valuable things. By a lucky chance perhaps a lawyer might get access to a few of them;4 but neither the mere apprentice, nor even the serjeant, could be sure of getting the constant access to a series of such documents which would be necessary if they were to be used for purposes of instruction or as aids to practice. Moreover much pleading took place, and much argument thereon, which never appeared on the roll; and this was often as interesting to lawyers as the matters which appeared there.1 The legal profession was obliged to supply its own peculiar wants for itself; and thus the report of the doings of the Court made by lawyers for lawyers arose.
We cannot give the exact date when to some lawyer “the happy thought”2 first came of noting down the proceedings of the Court. The earliest printed Year Book in the Rolls Series is of the year 1292; but there are, as we have seen, earlier manuscripts.3 Their writers, Professor Maitland thinks, are persons who are noting down the latest points for the use of themselves or their friends. They give no dates. Often they do not arrange their matter chronologically. Rather they distribute it under suitable heads after the manner of the writers of the later printed Abridgements. Thus, “it is only by degrees that the oldest law reports become ‘Year Books,’ and even when the purely chronological scheme has obtained the mastery, we may see that for a while the men who write the manuscripts or have the manuscripts written for them are by no means very careful about assigning the cases to the proper years and terms.”4 In later times the “chronological scheme” does obtain the mastery. No doubt as the years went on reporting became a more regular pursuit. Still it was an open pursuit.5 The Books of Assizes are reports in a style very different from that of the other Year Books of Edward III’s reign. They are more concise than the Year Books usually are, giving rather the gist of the argument and the decision than a report of the actual proceedings. The Longo Quinto represents a more elaborate effort of reporting than had yet been seen. Often it seems to be more impersonal, and to give the gist of several reports rather than the actual account of the eye-witness. No doubt, too, the reporters became more skilful, more professional as time went on; they allowed themselves fewer scattered notes, fewer personal details. The report of the case is the main thing; and the report grows fuller. Perhaps it may be allowable to conjecture that, with the growing organization of the legal profession, there grew up some sort of organized system of reporting. With the more frequent citation of cases in court, and the greater authority attached to them, the need for reports grew more pressing. We really have no positive evidence at all as to the conditions under which the Year Book was published to the profession. No doubt, as in later times, there was extensive borrowing, and hasty copying of borrowed materials as and when they could be got.1 It is, however, difficult to suppose that a profession so well organized as that of the law did not devise or encourage some sort of informal organization for the production of reports. It is perhaps more than a coincidence that the serjeant’s chief practice was in the Common Bench, and that the greater number of cases reported in the Year Books are common pleas. If there was some sort of organization for the production of reports, and if the legal profession exercised some control over it, we can easily see how the tale of their official origin arose. Such a tale would be the more readily believed by an age which had had time to forget the conditions which had prevailed before the introduction of printing. We sometimes speak of “the Law Reports” as official; but the historian of our age will search the national accounts in vain for information as to the sums paid to the reporters.
A reliance on cases was, as we have said, as old as Bracton; and we can see from the early Year Books that a considered decision was regarded as laying down a general rule for the future. “The judgment to be given by you,” said Herle in argument in 1304, “will be hereafter an authority in every quare non admisit in England.”1 This does not of course mean that all the cases to be found in the lawyer’s notebooks were regarded as authoritative.2 Still cases are cited even in the early Year Books.3 The judges when pressed by the authority of precedents were sometimes restive, as the following dialogue shows. “R. Thorpe. If it so seems to you, we are ready to say what is sufficient; and I think that you will do as others have done in the same case, or else we do not know what the law is. Hillary J. It is the will of the Justices. Stonore C. J. No; law is that which is right.”4 And in Edward III’s reign we see a more frequent citation of and reliance upon cases. In Henry VI’s and Edward IV’s reigns, if we make allowance for the differences between the manuscripts and the printed book, and the differences between the Year Book and the modern report, we see cases cited and distinguished much in the same way as they are cited and distinguished in modern times. This would seem to show that the later Year Books are something very much more than students’ notebooks. Just as the voluntary associations of students for the purposes of legal education won their way to the position of the Honourable Societies of the Inns of Court, so these students’ notebooks became those Reports which Burke called the sure foundation of English law, and the sure hold of the lives and property of all Englishmen.
The introduction of printing directly affected the accustomed modes of publishing the reports. Men would no longer pay large sums to obtain a MS. or to get the power to copy it, when they could buy a printed report, or an abridgement of the reports. A severe shock was therefore given to the production of the Year Books upon the old lines; and the severity of the shock was aggravated by the fact that the same extensive changes in law and practice which were diminishing the importance of the Register of Writs were rendering many of the old cases obsolete. Material changes in the law assisted the mechanical change in the mode of production. The Year Books, as we have seen, ceased to appear in Henry VIII’s reign. Perhaps some sanguine men considered that there were reports enough.1 But it soon became apparent that the professors and practitioners of a growing system of law, developed by the means of decided cases, could not dispense with reports. Dyer2 and Plowden begin the long list of modern reports.
For many years to come the printed Year Books were absolutely necessary to all students of the law; and the printed Abridgements of the Year Books were useful indices to the Year Books themselves, and gradually became the only authorities for the reigns and years which did not get into print.3 Just as the Year Books are the best indices to the records, so the Abridgements are our only index and guide to the Year Books.
Therefore before going on to speak of the characteristics of the Year Books we shall say something of these abridgments, by means of which the learning of the Year Books was made accessible to future generations of lawyers.
The three abridgments of the Year Books are written by Statham, Fitzherbert, and Broke. Statham’s4 name does not appear in the Year Books; but he was a reader of Lincoln’s Inn in the Lent term of 1471. His abridgment was printed by Pynson somewhere about the year 1495, under the title, Epitome Annalium Librorum Tempore Henrici Sexti. The title is misleading, seeing that the book includes extracts from the Year Books of preceding reigns up to and including the reign of Henry VI. Later editions were published in 1585 and 1679. Its popularity doubtless suffered from the more complete work of Fitzherbert.1 His work, Le Graunde Abridgment, was first printed in 1514. It is remarkable not only for its accuracy but also for its research. It contains extracts from many still unprinted Year Books, and also from Bracton’s Note Book.2 It was a model to future writers of Abridgments; and was extensively used by Staunforde for his treatise on the Prerogative, and by Bellew for his collection of reports of the years of Richard II’s reign. Its popularity is attested by the fact that it was reprinted in 1516, 1565, 1573, 1577 and 1586. The last of the famous abridgments of the Year Books is that of Broke.3 Broke filled the offices of common serjeant and recorder of London. He was Speaker of the House of Commons in 1554, and was made Chief Justice of the Common Pleas in the same year. He died in 1558; and his work was published posthumously in 1568. It is based on Fitzherbert’s Abridgment, but it contains much new matter. In particular it abridges fully the Year Books of Henry VII’s and VIII’s reign. “He observes,” says Reeves,4 “one method, which contributes in some degree to draw the cases to a point; he generally begins a title with some modern determination, in the reign of Henry VIII, as a kind of rule to guide the reader in his progress through the heap of ancient cases which follow.” The book was republished in 1570, 1573, 1576, and 1586.5
Broke’s abridgment is the last of the abridgments which deal wholly with the Year Books. Others followed and gradually superseded them, just as the more modern reports gradually superseded the Year Books.1 The later abridgments deal principally with these modern reports. It is not till quite recently that we have got an abridgment which attempts to epitomize under alphabetical headings the principles of the law, and not merely to catalogue the result of the cases.2
We must now turn to the characteristics of the Year Books.
There are many mediaeval records of various kinds which record contemporary events. There are no other mediaeval records except the Year Books which photograph the actual words, and actions, and idiosyncrasies of the actors as they were bringing these events to pass. When we read the official record we think of a machine, which automatically eliminates all the human dramatic element, and describes events and results in one impersonal, accurate, stereotyped form of words. When we read the Year Book we think of a human reporter, mainly interested it is true in law, but, for all that, keenly alive to the exciting incidents of the trial which is proceeding before his eyes—to judicial wit, and criticism, and temper, to the shifts and turns of counsel, to the skilful move or the bungling omission, even to the repartee and the exclamations which the heat of a hardly contested fight evoke. Though therefore the Year Books are valuable because they tell us much of the development of law, they are unique because they picture for us days in court in successive terms and years through these two centuries. Because they do this faithfully, not neglecting that human element which to-day is and to-morrow is not, they supply just that information which is omitted by those who record with mechanical correctness merely the serious business done. We see not only the things done; we see also the men at work doing them, the way these men did them, and how they came to be done in that particular way. It is for this reason that the Year Books are valuable documents not only to the historian of English law, but also to the historian of any part of English life. They create for us the personal element, the human atmosphere, which makes the things recorded in the impersonal record live again before our eyes.
There is a dramatic scene in Parliament in Edward I’s reign, related by Bereford C. J. in a style very different from that of any formal record:—
“In the time of the late King Edward a writ issued from the Chancery to the Sheriff of Northumberland to summon Isabel Countess of Albemarle to be at the next Parliament to answer the King ‘touching what should be objected against her.’ The lady came to the Parliament, and the King himself took his seat in the Parliament. And then she was arraigned by a Justice of full thirty articles. The lady, by her serjeant, prayed judgment of the writ, since the writ mentioned no certain article, and she was arraigned of divers articles. And there were two Justices ready to uphold the writ. Then said Sir Ralph Hengham to one of them: ‘Would you make such a judgment here as you made at the gaol delivery at C. when a receiver was hanged, and the principal [criminal] was afterwards acquitted before you yourself?’ And to the other Justice he said: ‘A man outlawed was hanged before you at N., and afterwards the King by his great grace granted that man’s heritage to his heir because such judgments were not according to the law of the land.’ And then Hengham said: ‘The law wills that no one be taken by surprise in the King’s Court. But, if you had your way, this lady would answer in court for what she has not been warned to answer by writ. Therefore she shall be warned by writ of the articles of which she is to answer, and this is the law of the land.’ Then arose the King, who was very wise, and said: ‘I have nothing to do with your disputations, but, God’s blood! you shall give me a good writ before you arise hence.’ ”1
The following dialogue between Roubury J. and the assise illustrates forcibly the relations between Judge and Jury:
“Roubury.—How do you say that he was next heir? The Assise.—For the reason that he was son and begotten of the same father and mother, and that his father on his deathbed acknowledged him to be his son and heir. Roubury.—You shall tell us in another way how he was next heir, or you shall remain shut up without eating or drinking until to-morrow morning. And then the Assise said that he was born before the solemnization of the marriage, but after the betrothal.”1
The reasonableness of the borough customs is not always apparent to the royal Judges. In answer to a plea of Parning, that the usage of Hereford was that a man could sell his land when he could measure an ell and count up to twelve pence, Schardelowe J. said, “the usage is contrary to law, for one person is twenty years old before he knows how to measure an ell, and another knows how when he is seven years old.”2 We get a glimpse at the actual working of the common field system in the following answer to a plea which set up common as a defence to an action of trespass:—
“Whereas they have said that this field should lie fallow every third year, and has always done so, Sir, we tell you that that field has always by the custom of the vill, and by the agreement of those therein, been sown in such manner as they chose to agree upon, sometimes for three years, sometimes for one year; and we tell you that it was agreed by all the tenants of the vill who had land in the field whereof we have complained, that the field should be sown.”3
We see, too, the tax collectors at work setting upon each vill a definite quota of the tax granted by Parliament; “and afterwards each man was apportioned by his neighbours according to the goods and chattels which he had in the same vill.”1 We see an allusion to that uncertainty in the measures of land, and the causes for that uncertainty, which makes so much of our earlier history obscure.2 The difficulties of travel which made it necessary for the process of the Court to be slow if it was to be fair are forcibly illustrated by many cases.3 We see the Judges like other people anxious for the beginning of the vacation. Catesby was arguing for a certain form of plea. Danby told him that he must plead specially, and that he had better plead in this way at once “because we can’t stay to argue matters of law at the very end of the term.”4
The Year Books are thus valuable in many ways to historians, other than the legal historian, for the glimpses which they give us of many sides of English life. But even from this more general point of view it is to the legal historian that they are chiefly valuable, because they contain a first-hand, and sometimes critical, account of the doings and sayings of the Court as they passed under the reporter’s eye. As we have before hinted, it is this characteristic of the Year Books which is the strongest evidence against their official origin. We shall here give one or two illustrations of the scenes in court thus described and of the reporter’s doubts and criticisms thereon. For convenience we shall group them under the following heads:—Manners and Wit of the Bench and Bar; the relations of Bar and Bench; the reporter’s notes.
The Manners and Wit of the Bench and Bar
Both Judges and Counsel are fond of swearing, by God, by St. James, or by St. Nicholas. Even in that age, John of Mowbray’s direction to the defendant, the Bishop of Chester, to “go to the great devil,” is not easily surpassed.5 The satisfaction of Counsel when the Judge had given a ruling in their favour sometimes found odd expression. Mutford had recourse to his Vulgate. “Blessed is the womb that bare thee,” he said to Metingham J. when he had given a a ruling in his favour.1 Their dissatisfaction, too, is clearly marked:
“Toudeby.—Sir, we do not think that this deed ought to bind us, inasmuch as it was executed out of England. Howard J.—Answer to the deed. Toudeby.—We are not bound to do so for the reason aforesaid. Hengham C. J.—You must answer to the deed; and if you deny it, then it is for the Court to see if it can try, etc. Toudeby.—Not so did we learn pleading.”2
The reporters had a keen eye for the pithy saying, the apposite anecdote, or a wrangle on the bench. “You cannot deny,” said Howard J., “that the tenements as well in one vill as in the other were holden by one and the same service; and you are seised of the tenements in one vill; will you then have the egg and the halfpenny too.”3 In a case of Edward III’s reign, Willoughby J. was laying down the law. “That is not law now,” said his brother Sharshulle. “One more learned than you are adjudged it,” retorted Willoughby.4 The clergy of the province of Canterbury, argued Counsel, do not meddle with the clergy of the province of York, and neither is bound by a grant made by the other—“Because the Jews have no dealings with the Samaritans.”5
The relations of Bar and Bench
The relation between the Serjeants and the Judges was not quite the same as the relation between the Bar and Bench in modern times. The Judges and the Serjeants together formed the highest branch of the legal profession—the order of the coif; so that to become a Serjeant was a more solemn and important step than to become a Judge. Traces of this old fellowship long survived in the common life of the Serjeants and Judges in the Serjeants Inns, in the rule that all Judges must be chosen from the Serjeants, and in the practice of addressing a Serjeant from the Bench by the title of “brother.” The Year Books testify to the fact that the Serjeants and Judges are brothers of one order. The Court asks them for their opinion.1 Resolutions are come to with their consent.2 Their dissent or approval is recorded; and the reporter regards their opinions with more respect sometimes than the dicta of the Judges. “Judgment is pending,” says the reporter, “but all the countors say the writ was invalid.”3 A demandant was nonsuited, “because all the Serjeants agreed that the writ could not be supported in this case.”4 “And this was the opinion of Herle and, for the greater part, of all the Serjeants, except Passeley, who told Hedon boldly to stick to his point. And so [Hedon] did.”5 After a dispute on the Bench it is noted that the common opinion is against the view of Parning.6 Even a dictum of the apprentices is noted,7 and sometimes conversations out of court.8 At the same time the intimacy of the relations between Bar and Bench did not prevent the Judges from speaking their minds very freely to the Bar. “We forbid you on pain of suspension to speak further of that averment;” “leave off your noise and deliver yourself from this account;” “that is a sophistry and this is a place designed for truth”—are remarks attributed to Hengham.9 “Are not the tallies sealed with your seal? About what would you tender and make law? For shame!”; “get to your business. You plead about one point, they about another, so that neither of you strikes the other;” “these seven years I never was put to study a writ, so much as this; but there is nothing in what you say”—are remarks attributed to Bereford.1 “Shame to him who pleaded this plea,” said Malore J.2 “This is not the first time we have heard a plea of this kind,” sarcastically remarked Sharshulle J.3 “I am amazed,” said Honore C. J., “that Grene makes himself out to know everything in the world—and he is only a young man.”4 Pulteney had said, “We do not see what will become of the first plea if this issue be entered.” “It will go to the winds as does the greater part of that which you say,” brutally remarked the same Judge.5 A somewhat neater score was made by one of Edward IV’s Chancellors. The plaintiff has no remedy, argued Counsel, because he has made no deed; and if a man is so simple that he enfeoffs another on trust without a deed he has no remedy and has only himself to blame. Not so, said the Chancellor, he will have a remedy here in Chancery, for God protects the simple.6
The reporter’s notes
The reporters were quick to note a quick retort, a foolish argument or a bungling plea. “My client is a poor man and knows no law,” argued Toudeby. “It is because he knows no law that he has retained you,” was Herle’s reply.7
We hear of the laughter in court occasioned by a foolish answer;8 and we sometimes get criticism of the rulings or manners of the Judges. A ruling is noted as “marvellous.”9 “Your answer is double,” said Brumpton, J., “and cannot be received,” but, adds the reporter, “he did not assign the reason.”1 Hervey le Stanton gets nick-named Hervey le Hasty.2 Thirning said to Counsel that he had spoken with his fellow Justices and that he (Counsel) must answer. Upon which Hull (another Counsel) remarked aside that he had never before seen that laid down for law, and, sympathetically added the reporter, “I myself have seen the contrary adjudged by the same Judges.”3 Mr. Justice Rickel had been a plaintiff together with some others in a plea of trespass. The writ was abated, “with the assent of all the Justices except the plaintiff,” drily observes the reporter.4 He notes, too, the smile with which Paston J. pointed what he considered to be a mildly humorous illustration.5 Similarly we get extraneous facts noted which struck the reporter’s fancy. He is reporting a case in the Exchequer Chamber, and notes that it was heard by the new Treasurer, about whom he gives us a few details.6 In the Year Book of the same year he gives us, at the close of the reports for the Easter term, a narrative of the battles of Hedgeley Moor and Hexham and of the events which had happened after the battle of Towton, leading up to an account of the execution of Sir John Grey, “because of his perjury and double dealing as well to King Henry VI as to King Edward IV the present king.”7 He tells us that other arguments were used on another day “when I was not present.”8 Often his notes express his doubts or queries on points of law—and sometimes they are of a lengthy and argumentative kind.9 Such notes show us the court at work, and something of the minds of the lawyers. But the Year Books are not primarily collections of pithy sayings, and picturesque incidents. The teaching and the publishing of the law is their object.
THE ENGLISH REPORTS, 1537-18651
FROM the last Year Book, in 1537, to the year 1865, there were no official reports. This important work was dependent for more than three centuries upon private enterprise. Toward the end of the eighteenth century these private reports become fairly accurate and complete, but the long period from 1537 to 1785 is precariously covered by more than one hundred reporters of various degrees of merit. A few of them, such as Plowden, Coke, and Saunders, have long enjoyed an intrinsic authority; others are quite worthless; all are subject to limitations which should never be lost sight of in relying upon their authority as judicial precedents.
During the century following the abandonment of the Year Books private reports multiplied slowly. Down to the time of the Commonwealth the only reports in print, besides certain Year Books, were Plowden, Dyer, Keilway, Benloe and Dalison, the first eleven parts of Coke, Davies, Hobart, and Bellewe’s collection from the Year Books. But during the forty years of political strife from the Commonwealth to the Revolution more than fifty volumes of so-called reports were published; twenty-three of them appeared during the short life of the Commonwealth.3 As a class these reports are accurately described by Sir Harbottle Grimston, afterward master of the rolls, in an “Address to the Students of the Common Laws of England,” published in 1657:—
“A multitude of flying reports, whose authors were as uncertain as the times when taken, have of late surreptitiously crept forth. We have been entertained with barren and unwarranted products, infelix folium ex steriles avenae, which not only tends to the depraving of the first grounds and reason of the young practitioner, who by such false lights are misled, but also to the contempt of divers of our former grave and learned justices, whose honored and revered names have in some of said books been abused and invocated to patronize the indigested crudities of these plagiaries; the wisdom, gravity, and justice of our present justices not deeming or deigning them the least approbation or countenance in any of their courts.”
“The press,” says the reporter Style in his preface, “hath been very fertile in this our age, and hath brought forth many, if not too many, births of this nature, but how legitimate most of them are let the learned judge. This I am sure of: there is not a father alive to own many of them.”
The license of the press prompted the enactment soon after the Restoration of a licensing act, requiring, among other things, that all books concerning the common law of the realm should be printed only upon the special allowance of the lord chancellor or the judges, or by their appointment. This act undoubtedly accounts for the prefatory passports to some of the subsequent reports. There is a significant difference in their phraseology. The Year Books are not only “allowed” by the twelve judges, but also “recommended to all students of the law.” Sir Matthew Hale adds to the license for Rolle’s reports that they are “very good.” While the judges often certify to the learning and skill of the reputed author, they seldom state that they have examined the work, or express any opinion upon its authenticity. At all events, this licensing act, which expired in 1692, did not materially improve the standard of reporting; some of the eighteenth century reports are quite as bad as any of their predecessors. “See the inconveniences of these scambling reports,” said Chief Justice Holt in Slater v. May,1 referring to the fourth Modern; “they will make us to appear to posterity for a parcel of blockheads.” And the best that the author of the fifth Modern could say of the post-Revolutionary reports was that “though some of them, as Justice Shelley merrily said, might be compared to Banbury cheeses, whose superfluities being pared away there would not be enough left to bait what my Lord Hale called the mouse-trap of the law; yet, to speak still in the language of a judge, ‘I think the meanest of them may, like the little birds, add something to the building of the eagle’s nest.’ ”
The most superficial examination of the contents of these volumes reveals the defects which justify such an arraignment. These reports, bearing the names of various judges, sergeants, prothonotaries and lawyers of less character, had their beginnings in every instance in the needs of actual practice. A lawyer would preserve in his common-place book notes of the cases cited by him in an argument, and this would be followed by a memorandum of the case in which they were used. He would also add, from time to time, other cases which he happened to hear, or notes of which were shown to him by his professional brethren. If he subsequently attained a judicial station he would of course take notes of the cases argued before him, and, very likely, of cases cited in argument with which he was not already familiar. Such notes were prepared for personal use and without any thought of publication. Their subsequent publication was almost always posthumous. With the exception of Plowden, Coke, Saunders, and a few others, very few of the reports prior to the Revolution were published in the lifetime of their authors. Bulstrode, Cromwell’s chief justice of Wales, was the first lawyer after Coke to publish his own reports. Obviously these manuscripts would vary in accuracy and value with the capacity of their authors. The note-book of a reputable judge, containing a report of litigation over which he presided, would possess all the elements of authenticity. But it also happened that lawyers of inferior acquirements, often youthful students, employed their leisure in accumulating private collections of cases. Lord Mansfield relates that the reporter Barnardiston often slumbered over his note-book, and wags in the rear would scribble nonsense in it. Whatever the merits of an original manuscript might be, in passing from hand to hand, for the purpose of copying, additions were made by various hands. When, therefore, a manuscript was finally published it would often be difficult, if not impossible, to ascertain how much of it, if any, represented first-hand work. The contents of New Benloe and Anderson extend over a period of one hundred and thirty years; Owen, Saville, Brownlow, Gouldsborough, Popham, and Lane, from fifty to one hundred years. Down to Hanoverian times the same cases are constantly reported by different persons, sometimes by half a dozen at once. By comparing them some idea may be obtained of the careless and slovenly methods of copying in vogue. For instance, the case of Clerk v. Day is reported by Croke,1 by Owen,2 by Moore,3 and is also printed in Rolle’s Abridgment; yet Lord Raymond asserts that it is not accurately reported in any of the books named, even as to the names of the parties.4 Sometimes an author purports to give a case in full; at other times only in part; and to obtain the whole case the scattered fragments must be traced and put together. Thus the leading case of Manby v. Scott is reported in a way in Siderfin and in Levinz;5 the opinion by Sir Orlando Bridgman may be found in Bridgman’s collection of his own opinions, Justice Hyde’s in 1 Modern, Chief Baron Hale’s in Bacon’s Abridgment, while parts of the case are scattered through Keble and Modern. One reporter will give the decision in the form of an abstract principle, another will state the facts upon which it was founded, a third will report the arguments of counsel, while a fourth may supply parts omitted by the others.
There were, moreover, other elements of confusion. Many manuscripts belonging to lawyers of high standing were published without authority, and consequently without any revision. In at least two instances the manuscripts were stolen by servants and published as mere booksellers’ speculations, with various additions from unknown sources. At best, posthumous publication, involving the deciphering of a strange manuscript, was attended with serious risks. An original manuscript was apt to be vitiated long before publication by repeated and careless copying. The editor of Dyer’s reports refers to numerous errors “religiously preserved and carried on without the least attention to sense.” Then many of these volumes are translations of Latin or French originals never published. In cases like Dyer, the first eleven parts of Coke, Yelverton, Saunders, and a few others, where the work was first printed in the original and subsequently translated, we have means of verification. But during the Commonwealth period, English having been made the court language and reports in Latin and French prohibited, editors at once translated their manuscripts into English. Thus Croke, Winch, Popham, Owen, Leonard, Hetley, J. Bridgman, and some others, though originally written in Latin or French, first appeared in English. Considering the cryptographic abbreviations which abounded in the handwriting of former times, the fact that the original manuscript, having been designed for private use, was likely to be filled with symbols understood by the writer alone, and the fact that the translator was exempt from comparison, the probable extent of the errors and imperfections is apparent. “I have taken upon me,” says Croke’s editor, “the resolution and task of extracting and extricating these reports out of their dark originals, they being written in so small and close a hand that I may truly say they are folia sybillina, as difficult as excellent.” A score or more of the early reports have never been translated from the Latin or French in which they were originally published.
The classical repositories of the old common law are the reports of Plowden and Coke. Their work maintained pre-eminence for more than a century, and exercised a profound influence upon early English law. Plowden was our first private reporter, and in many respects his work has not been surpassed by any of his successors. “The Commentaries or Reports of Edward Plowden of the Inner Temple, An Apprentice of the Common Law,” extend from Edward III. to Elizabeth (1550-1580). They are the result of actual attendance in court, and are among the few old reports prepared for the press and published under the direction of their author. Plowden states in his preface, under date of 1571, the circumstances under which the work was undertaken:—
“When I first entered upon the study of the law I resolved upon two things which I then purposed earnestly to pursue. The first was to be present at, and to give diligent attention to, the debates in law, and particularly to the arguments of those who were men of the greatest note and reputation for learning. The second was to commit to writing what I heard, which seemed to me to be much better than to rely upon treacherous memory, which often deceives its master. These two resolutions I pursued effectually by a constant attention at the moots and lectures, and at all places in court and chancery to which I might have access where matters at law were argued and debated. And finding that I reaped much profit and instruction by this practice, I became at last disposed to report the arguments and judgments made and given in the king’s courts upon demurrers in law, as abounding more copiously in matters of improvement, and being more capable of affecting the judgment, than arguments on other occasions. Upon this I undertook first one case and then another, by which means I at last accumulated a good volume. And this work I originally entered upon with a view to my own private instruction only, without the least thought or intention of letting it appear in print.”
Although often solicited by “some of the judges and other grave and learned men” who had seen his work to allow it to be made public, he modestly declined, “being conscious of the simpleness of his understanding and of the small spark of reason with which he was endued.” He was at length led to alter his resolution by the following circumstances:—
“Having lent my said book to a few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others knowing thereof got the books into their hands and made such expedition, by writing day and night, that in a short time they had transcribed a great number of the cases, contrary to my own knowledge and intent, or of those to whom I had lent the book; which copies at last came to the hands of some of the printers, who intended (as I was informed) to make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were which, if the copies so taken had been printed, would have greatly defaced the work and have been a discredit to me.”
Plowden took infinite pains to render his work accurate and complete. “In almost all of the cases, before they came to be argued, I had copies of the records, and took pains to study the points of law arising thereupon, so that oftentimes I was so much master of them that if I had been put to it I was ready to have argued when the first man began; and by this method I was more prepared to understand and retain the arguments and the causes of the judgments. And besides this, after I had drawn out my report at large, and before I had entered it into my book, I shewed such cases and arguments as seemed to me to be the most difficult and to require the greatest memory, to some of the judges or sergeants who argued in them, in order to have their opinion of the sincerity and truth of the report, which, being perused by them, I entered it into my book.”
The result of such care is a report which presents with absolute clearness the points at issue, the arguments urged by the respective counsel, and the grounds of the judgment rendered by the court. Moreover, in publishing his work he placed a title at the head of each case, together with the date, the nature of the action, the names of the parties, etc. Beyond their excellent form and arrangement the great authority of Plowden’s cases has a substantial basis. Many of the early reports, particularly the Year Books, contain the off-hand opinions of the judges upon motions; whereas all of Plowden’s cases are “upon points of law tried and debated upon demurrers or special verdicts, copies whereof were delivered to the judges, who studied and considered them, and after mature deliberation gave judgment thereon.” This fact also explains the great esteem in which Plowden’s work has always been held as a book of entries.
Although Plowden called his work a commentary he was sparing in comment. When he undertakes a full discussion of a topic1 he is very instructive; but he is always careful to separate his own views from the opinion of the court. His work is therefore really a report, although called a commentary. It remained for Sir Edward Coke to publish under the title of reports an elaborate commentary, in which the opinion of the court was often edited in accordance with the reporter’s personal views.
The estimation in which Coke’s reports were held by his contemporaries is indicated by their citation simply as “The Reports.” While they were being issued no others appeared, “as it became all the rest of the lawyers to be silent whilst their oracle was speaking.”2 Coke began as early as 1580 to take notes of the legal transactions of the day, perfecting his information during hours of leisure. At length in 1600 he published his first volume, and shortly afterward, while he was attorney-general, the second and third. In 1603 the fourth part appeared, and the fifth about two years later. The remaining six parts were issued between the years 1607 and 1616, while he was successively chief justice of the Common Pleas and of the King’s Bench. These eleven parts or volumes constituted all that were published during his life-time, and, apparently, all that were designed for publication. In 1634, however, twenty-one years after his death, a twelfth part was printed, and about three years later the thirteenth and last. These last two parts had been left by Coke in an unfinished state, and are inferior in authority to their predecessors.1 Besides reports of cases much more loosely stated than in the prior reports, they contain accounts of conferences in the Privy Council, of consultations among the judges, and notes of legal points in general. The fact that they deal largely with questions of prerogative is probably the reason why they were not published in the author’s life-time. The earlier parts had given offense to James I., who deemed certain doctrines contained therein injurious to his royal authority. Coke’s ultimate suspension from judicial office was accompanied by a command to consider and revise his reports, and his “scornful treatment of this order” in reporting only five trivial errors was one of the reasons given for his subsequent dismissal.
In method Coke’s reports are unique. They are not reports at all in the strict sense of the term. He says in his preface that he prepared his reports not merely for citation in court but also for educational purposes; and to a large extent, though just how far it is impossible to say, they contain his own statement of the law. Accordingly, they are much more elaborate than other early reports. Since, to Coke’s mind, the art of pleading was the necessary foundation of all accurate knowledge of the common law, the pleadings are fully set out, not only for a proper understanding of the case but for the instruction of students as well. The reasons of the judgment are thrown into the form of general propositions of law, in the exposition of which earlier cases are collected with laborious care. Hence the report of each case forms a treatise on the point at issue. The arrangement of the cases, moreover, is not chronological, but more or less according to subjects.
Coke’s reports are therefore summary in character. Without tracing any form of argument, he usually gives a statement of the case, following with the substance of all that was said in argument, and concluding with the resolutions of the court. He describes his method in Calvin’s case:1 —
“And now that I have taken upon myself to make a report of their arguments, I ought to do the same as fully, truly, and sincerely as possibly I can; howbeit, seeing that almost every judge had in the course of his argument a particular method, and I must only hold myself to one, I shall give no just offense to any if I challenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method as, upon consideration had of all the arguments, the reporter himself thinketh to be fittest and clearest for the right understanding of the true reason and causes of the judgment and resolution of the case in question.”
His method of presenting what was decided is, however, disorderly in the extreme. Throughout all parts of the report, but particularly in giving the resolutions of the judges, his inexhaustible learning breaks forth; “one case is followed by another, quotation leads to quotation, illustration opens to further illustration, and successive inference is made the basis for new conclusion; every part, moreover, being laden with conclusions and exceptions, or protected in a labyrinth of parentheses, until order, precision, and often clearness itself is lost in the perplexing though imposing array.” How animating, therefore, is his assurance to the reader that “although he may not, at any one time, reach the meaning of his author, yet at some other time and in some other place his doubts will be cleared.”2
In connection with his habit of editing the conclusions of the court in accordance with his own views of the law, it may be added that Coke is not always accurate. Sometimes, as in Gage’s case,3 he gives a wrong account of the actual decision. Moreover the authorities which he cites do not always sustain his conclusions.4 This fault, indeed, runs through all his writings and has carried in its train some unfortunate consequences. For instance, in Pinnell’s case, by giving a mere dictum the form and effect of an actual decision upon a point in issue he fixed upon English law the rule that a creditor who, on the day his debt falls due, accepts a smaller sum in satisfaction of the whole, but executes no deed of acquittance, is not bound by his agreement.1 The result has been, as Sir George Jessel ironically said in Couldery v. Bartrum,2 that according to English law “a creditor might accept anything in satisfaction of a debt except a less amount of money. He might take a horse or a canary or a tomtit if he chose, and that was accord and satisfaction; but by a most extraordinary peculiarity of English law he could not take 19s 6d in the pound.” Yet the House of Lords in 1884 held that the error was so firmly established that it did not come within their province to correct it. It may be added in further elucidation of the effect of such errors that the resolution of the judges in Pinnell’s case as reported by Coke is not as absurd as some of the distinctions that have been engrafted upon it from time to time by judges who sought to limit the operation of what they believed to be an erroneous principle. Many questionable doctrines have in this way become firmly imbedded in the law. “I am afraid,” said Chief Justice Best, “we should get rid of a good deal of what is considered law in Westminster Hall if what Lord Coke says without authority is not law.”3 Still, it is less true now than formerly that his works have, as Blackstone said, “an intrinsic authority in courts of justice, and do not entirely depend on the strength of their quotations from older authorities.”
The basis of the vast reputation that Coke’s reports enjoyed for centuries is readily apprehended. The only other reports available in his time were Dyer, Plowden, and parts of the Year Books; in the preface to the third part of his reports Coke gives their number as fifteen. Coke’s extensive reports, covering a period of nearly forty years, not only give a fairly complete account of the law during the reigns of Elizabeth and James I., but they made accessible most of the older learning which till then had to be laboriously gathered from the Year Books and the unsatisfactory abridgments. Lord Bacon admitted no more than the bare truth when he said, “To give every man his due, had it not been for Sir Edward Coke’s reports (which, though they may have errors and some peremptory and judicial resolutions more than are warranted, yet they contain infinite good decisions and rulings over cases), the law by this time had been almost like a ship without ballast, for that the cases of modern experience are fled from those that are adjudged and ruled in former time.” Moreover, his careless and disorderly mixture of things great and small is balanced by the grasp of his intellect and the often inimitable effect of his quaint style.1
There are several other brief collections of cases from Tudor times, chief among which is Dyer’s (1513-82). Sir James Dyer presided in the Court of Common Pleas for more than twenty years, and his accurate, concise and businesslike notes have always been regarded as among the best of their class. Although these notes were taken by Dyer for his own use and without any thought of publication, they were edited from a genuine manuscript by his nephew, and were subsequently annotated by Chief Justice Treby. Moore’s reports (1521-1621), the work of Sir Francis Moore, the supposed author of the Statute of Uses and inventor of the conveyance known as lease and release, were edited from a genuine manuscript by Sir Geoffrey Palmer, a distinguished lawyer of the Restoration, with the assent of Sir Mathew Hale, who married Moore’s granddaughter. Anderson’s Common Pleas Reports (1534-1604), the work of a prominent judge, are quite full and circumstantial for their time. Jenkins’s so-called “Centuries,” a brief but accurate collection of notes of Exchequer decisions, contains some cases as early as the thirteenth century. Leonard’s reports (1540-1613), dealing mostly with cases subsequent to the reign of Henry VIII., have been commended by Nottingham and St. Leonards. Benloe and Dalison (1486-1580), Keilway (1496-1531), Brooke (1515-58), and Benloe (1531-1628) are all of secondary value. The only connection between Benloe and Dalison is the fact that their reports were edited by John Rowe. The later Benloe, which is mainly a compilation, is often called New Benloe, to distinguish it from the former; Brooke is likewise called Little Brooke to distinguish it from the same author’s abridgment. Although Keilway’s reports are of uncertain value, they record many cases not included in other reports of this period. The volume bearing the name of Noy (1559-1649) is a collection of mere scraps of cases and dicta, with only an occasional statement of the facts involved. Noy was attorney-general under Charles I., and one of the six persons recommended by Bacon in connection with his plan for official reporting as being “learned and diligent and conversant in reports and records.” This volume was probably an unauthorized transcript from his note-book. The reports of Brownlow and Gouldsborough (1569-1625) are the work of two prothonotaries of the Common Pleas; they are mostly practice cases. Owen (1556-1615), Goldbolt (1575-1638), Saville (1580-94), and Popham (1592-1627) are of little, if any, value.
Many of the reports just mentioned extend into the seventeenth century. On the other hand, there are several reports dealing principally with the reign of the first two Stuarts, whose earlier cases date, like Coke’s, from Elizabeth’s reign. Of these the reports of Sir George Croke, edited by his son-in-law, Sir Harbottle Grimston, master of the rolls, are of most general interest and value. Croke served with credit in a judicial capacity until his eightieth year, when, upon his petition that he might “retire himself and expect God’s pleasure,” Charles I. granted him a pension. His work is of the first importance whenever he reports a case fully; but the value of his reports as a whole is affected by the fact that he gives not only cases in which he participated or which he heard, but many others not reported elsewhere, which were merely cited in argument or which were shown to him. However, when he takes a case at second-hand he generally states somewhere that he does so, and the discredit into which some of his work has fallen is due to some extent to his practice of printing a case in instalments, and the consequent difficulty of reading him aright. As a rule his reports are too brief to be perfectly clear. These reports are always cited by the names of the sovereigns in whose reign the cases were determined.
In addition to the standard authorities, Coke and Croke, the first half of the reign of James I. is covered by Yelverton (1603-13), the second half by Rolle (1614-25), and the whole reign by Hobart (1603-25). Yelverton’s small volume ranks with the best of the old collections of notes. Yelverton was one of the ablest lawyers of his time, and although his notes are not presented with technical precision, having been prepared for his own use, they are known to be authentic. Rolle’s report is a genuine work by Cromwell’s able chief justice. Hobart’s collection, published several years after the Chief Justice’s death by a careless editor, but improved in a subsequent edition by Lord Nottingham, was a standard work of its day. Yet these reports are still very defective in method and precision, and are replete with legal disquisitions which have not served in modern times to add to their usefulness. Hobart includes some cases from the Star Chamber. There are several minor reports of this reign: Davies (1604-12), Lane (1605-12), Ley (1608-29), Calthrop (1609-18), Bulstrode (1609-39), Hutton (1612-39), J. Bridgman (1613-21), Palmer (1619-29), and Winch (1621-25). Davies was a well-known poet and a friend of Selden and Ben Jonson. Ley prints some cases from the Court of Wards. Calthrop deals mainly with cases concerning the customs and liberties of London; Winch, principally with declarations.
Beginning in the last years of James I., but dealing mainly with the succeeding reign, is the collection by Sir William Jones (1620-41). These are accurate reports, from a genuine manuscript, of cases decided during this distinguished judge’s tenure of office. They are among the most interesting of the old reports. In this reign, also, is the volume bearing the name of Littleton (1626-32); but the cases were probably not reported by him. They are concerned largely with applications for prohibitions. Latch (1625-28), Hetley (1627-32), and March (1639-43) are of minor importance. Clayton’s assize reports (1631-51) throw some light on early practice. Aleyn (1646-49) contains loose notes of cases decided during the last years of the reign of Charles I., when judicial proceedings were disturbed by the turbulence of approaching civil war.
There are few reliable records of litigation during the Commonwealth period. Style’s reports (1646-55), which were published by the author himself, are valuable as our sole record of the decisions of Rolle and Glyn, the able chief justices of the Commonwealth. Hardres’ Exchequer reports (1655-69) cover part of this period. They were printed from a genuine manuscript, and give fair reports of the arguments, but very brief reports of the judicial opinions, which are usually by Sir Mathew Hale. Siderfin (1657-70), who gives some cases from this time, is of small consequence.
Within the first decade after the Restoration there are several new reports, extending for the most part over the remainder of the Stuart period. Chief among them is Saunders (1666-73), who is universally conceded to be the most accurate and valuable reporter of his age. His work is confined to the decisions of the King’s Bench between the eighteenth and twenty-fourth years of the reign of Charles II. Saunders participated as counsel in most of the cases, and he reports them with admirable clearness. In general his reports resemble Plowden’s; but they are much more condensed. He gives the pleadings and entries at length, and follows in regular order with a concise statement of the points at issue, the arguments of counsel, and a clear statement of the grounds of the judgment. The work was subsequently enriched by the learned annotations of Sergeant Williams. Thomas Raymond’s notes (1660-84) bear a good reputation. T. Jones (1667-85) and Ventris (1668-91) are of fair authority; about Levinz (1660-96), and especially Keble (1661-79), opinion is conflicting. It is unfortunate that we have no better record than these volumes afford of Sir Mathew Hale’s decisions. The manuscript of Freeman’s notes (1670-1704) was stolen by a servant and published without authority.
The so-called Modern reports (1669-1732), which begin in the first decade after the Restoration and cover a period of more than sixty years, are of considerable importance when due allowance is made for certain serious limitations. This work, originally composed of five volumes, was formed by combining in a series the work of different hands. It was subsequently revised and remodeled by Leach, who published a definitive edition in twelve volumes (1793-96). Leach made many improvements in the text; he corrected the headings, inserted the names of the judges at the beginning of each term, and modernized the references. In former editions a variety of cases without any names were often crowded together in such a confused mass as to be practically undistinguishable. Leach separated these cases under the title “Anonymous.” Besides contributing many notes and references he added a large number of cases. As thus corrected the work was much improved; but the volumes are still wanting in accuracy and completeness, and, moreover, vary greatly in value. The second, sixth, and twelfth, for instance, have often been cited with commendation, while the reputation of the fourth, eighth, and eleventh is particularly bad. The arrangement of the contents of the work is disorderly and confusing in the extreme. The first two volumes, containing both law and equity cases, deal with the reign of Charles II.; the third mainly with the reign of James II.; the fourth and fifth, during William III.’s reign, and the sixth, during Anne’s, are made up of decisions by Chief Justice Holt; volume seven completes Anne’s reign and contains decisions of Chief Justices Hardwicke and Lee in the King’s Bench from the sixth to the eighteenth years of George II.; volume eight contains King’s Bench decisions from the eighth to the twelfth years of George I., during the service of Chief Justice Pratt; the ninth volume is made up entirely of chancery cases, containing Lord Chancellor Macclesfield’s decrees from the eighth to the eleventh years of George I., and Hardwicke’s from the tenth to the twenty-eighth years of George II.; the tenth, extending from the eighth year of Anne to the eleventh year of George I., is made up of decisions by Macclesfield in law and in chancery; the eleventh gives Holt’s decisions during the first eight years of Anne’s reign, and Chief Justice Pratt’s from the fourth year of George I. to the fourth year of George II.; and the last volume is given to Holt’s cases in the reign of William III. This collection of reports, notwithstanding its deficiencies, has perhaps been cited oftener in modern times than other seventeenth century report. Many of the best known early cases are scattered through these volumes.
The inaccuracies of Shower (1678-94), who gives some good cases, have been somewhat remedied in subsequent editions. Some of Sir Orlando Bridgman’s excellent opinions in the Common Pleas are preserved in the reports bearing his name (1660-67). Vaughan’s reports (1665-74) from the same court deal principally with the labors of the judge of that name; Lutwyche (1683-1702) also records some Common Pleas cases from the latter part of the seventeenth century. Among the minor reports of this time, besides J. Kelyng’s brief collection of criminal cases (1662-69), are several of little, if any, value: Carter (1664-85), Comberbach (1685-99), and Carthew (1686-1701). Since almost all the cases printed by Skinner (1681-98) had appeared in prior reports his work is seldom cited.
Some of the ante-Revolutionary reports exhibit technical learning of a high order; but it must be admitted that they are not easy reading. The cumbersome system of feudal tenure, with which the vast proportion of the cases prior to the Restoration are concerned, was at best unpromising material.1 After the Restoration the reports increase in interest. The radical reforms in the law of real property, and the slow but steady amelioration during the latter half of the seventeenth century of common law doctrines and procedure, in consequence of the interference of the chancellor, gradually brought within the purview of the common law remedial measures which had theretofore been recognized only in equity. For instance, the introduction in the reign of Charles II. of new trials with reference to the evidence obviated recourse to equity in cases like that which had brought about the conflict between Coke and Ellesmere.
Although these early reports, with few exceptions, are now seldom cited in practical work, their historical value can hardly be overestimated. Reports that are almost worthless as judicial records often throw valuable side-lights upon early practice and procedure;1 not infrequently they supply interesting illustrations of the social life of the time.1
The Revolution forms almost as distinctive an epoch in legal as in political history. In the passing of the despotism of the Stuarts, and the consequent acknowledgement and definition of civil and political liberty, the judiciary acquired a stability which has never been shaken. The judges have ever since held their office during good behavior instead of at the sovereign’s pleasure, and their removal could only be effected by the crown upon the address of both houses of Parliament. The turning point in judicial affairs at the Revolution is clearly marked. Of the notorious instruments of usurpation and violence, the dethroned king’s chancellor was in the Tower and his chief justice in Newgate. On the other hand, the new era was opened by the appointment of one of the ablest and best of chief justices, Sir John Holt, to succeed Wright, one of the worst; and from that time no address has ever been voted by either house of Parliament with a view to the displacement of an English judge.
From the Revolution the reports increase in value and importance; they deal more with modern conditions. The development of commerce, and the consequent variety and importance of personal property and of contracts, the growth of maritime jurisprudence, the development of equity, and the general introduction of more liberal and enlightened views of justice and public policy, all combined to give a new tone and impulse to the common law.
It is a great misfortune that the labors of the distinguished jurist whose character and career exemplified the best features of the new era should have been so inadequately preserved. Reference has already been made to the reports of Chief Justice Holt’s cases in Modern. Holt’s term is covered, in addition, by Salkeld (1689-1712), Lord Raymond (1694-1734), and Comyns (1695-1741). The first two volumes of Salkeld (the third volume being a mere collection of detached notes of cases from other reports) were published under the supervision of Lord Hardwicke, and enjoy a good reputation; yet the reports are too brief to be clear, and many of the cases are taken at second hand. Lord Raymond’s reports of Holt’s decisions are of excellent authority. After Holt’s death Raymond seems to have relaxed his efforts. His third volume contains the pleadings at large. Comyn’s reports are posthumous, and are not as reputable as his digest. In addition to the volumes above mentioned, some of Holt’s cases may be found in Carthew (1686-1700), and Levinz (1660-97), both of poor reputation, and in the appendix to Kelyng’s criminal cases. The volume entitled Temp. Holt (1688-1710) is mainly an abridgment of Holt’s decisions by Giles Jacob, Pope’s “blunderbus of the law.”
During the first dozen years of George II.’s reign we have several new reports: Barnardiston (1726-35), Fitzgibbon (1727-32), W. Kelynge (1731-36), Barnes (1732-60), Ridgeway (1733-37), Lee (1733-38), Cunningham (1734-36), Andrews (1737-39), and Willes (1737-60),—most of them, unfortunately, of inferior workmanship. Most of the cases in Cunningham, Ridgeway, 7th Modern, and Lee’s Cases Temp. Hardwicke, are apparently all taken from the same manuscript; yet they are our main reliance for Hardwicke’s services in the King’s Bench.
Fortescue (1695-1738) and Strange (1715-48) are of fair repute. Fortescue is partial to his own opinions, which are characterized by more solicitude for taste than power of thought. Strange was master of the rolls and the colleague of Hardwicke, some of whose arguments at the bar and common law decisions he reports. His reports are quite modern in form. Cooke’s Common Pleas reports, which are frequently cited, are mostly practice cases. Gilbert’s Cases in Common Law and Equity (containing, however, no equity cases) cover the term of Chief Justice Parker. Bunbury (1713-42) and Parker (1743-67) together form a consecutive chronicle of the Exchequer under George I., George II., and the first seven years of George III. Bunbury’s reports are mere notes, but they were taken in court by Bunbury himself, and were afterward edited by his son-in-law, Sergeant Wilson.
Willes’s reports of his own opinions as chief justice of the Common Pleas are highly authoritative. Although published after Willes’s death, they appear to have been carefully prepared by this learned judge, and they were afterward revised and edited by Durnford, the editor of the Term Reports. This volume also contains some cases in the House of Lords. Willes’s excellent reports are little if at all superior to those prepared by Wilson (1743-74). This very accurate work records the labors of such distinguished judges as Wilmot, Willes, and De Grey, and is of great value. Sir William Blackstone’s miscellaneous collection of cases (1746-79), extending over a period of thirty-three years, do not display the care that we should expect from the celebrated commentator. Wilmot’s opinions (1757-70) contain decisions by this learned judge not reported elsewhere. Foster’s small collection of criminal cases (1743-61), the work of a very eminent authority in criminal law, is of the highest authority as far as it goes. The collection of notes published in Kenyon’s name (1753-60) came from a genuine manuscript, but was probably not designed for publication.
Burrow’s reports (1757-71), beginning in the year following Mansfield’s appointment as chief justice of the King’s Bench and just prior to the accession of George III., mark an epoch in law reporting. Burrow was led to publish his work by the same circumstances that had overcome Plowden’s modesty two centuries before. When it became known that he had for many years preserved some account of the decisions of the courts, he was subjected, he says, to “continual interruption and even persecution by incessant application for searches into my notes, for transcripts of them, sometimes for the note-books themselves (not always returned without trouble and solicitation), not to mention,” he feelingly adds, “frequent conversations upon very dry and uninteresting subjects, which my consulters were paid for considering, but I had no sort of concern in.” Burrow’s published reports date only from the time of his appointment as master of the crown office, when personal charge of the court records and regular attendance in court gave him superior opportunities to render his work accurate and complete. Beyond their substantial accuracy, these reports are characterized by clearness of statement and lucid arrangement of the materials of a case. Burrow was the first reporter to appreciate the advantage of prefixing to the report of each case a statement of the facts and issues separate from the opinion of the court, and following in regular order with the arguments, the opinions of the judges, and the judgment of the court. As he did not write short-hand, the opinions of the judges are not given in the exact language in which they were delivered; nor were they revised by the judges. The consequent limitations of all such reporting is analyzed by Burrow in terms which should always be borne in mind in citing the early reports.1
“I do not take my notes in short-hand. I do not always take down the restrictions with which the speaker may qualify a proposition to guard against its being understood universally, or in too large a sense, and therefore I caution the reader always to imply the exception which ought to be made when I report such propositions as falling from the judges. I watch the sense rather than the words, and therefore may often use some of my own. If I chance not fully to understand the subject, I can then only attend to the words, and must in such cases be liable to mistakes. If I do not happen to know the authorities shortly alluded to, I must be at a loss to comprehend (so as to take down with accuracy and precision) the use made of them. Unavoidable inattention and interruptions must occasion chasms, want of connection, and confusion in many parts; which must be patched up and connected by memory, guess, or invention, or those passages totally struck out which are so inextricably puzzled, in the original rough note, that no glimpse of their meaning remains to be seen.”
“I pledge my character and credit,” he says in conclusion, “only that the case and judgment and the outlines of the ground or reason of decision are right.” Their accuracy to this extent has never been questioned.
These reports, of the utmost value in themselves as a record of the services of Mansfield, Foster, Wilmot, and Yates, exercised, moreover, a most beneficial influence upon subsequent reporting. Burrow’s immediate successors, Cowper (1774-78) and Douglas (1778-84), who give a consecutive chronicle of Mansfield’s work from 1774 to the beginning of the Term Reports, follow the same plan and are of similar excellence. Although Burrow had something to say of his vocation, Douglas’s reports contain the first deliberate discussion of the reporter’s art. “My utmost aim will be attained,” he says at the close of his preface, “if I shall be found to have merited in any degree the humble praise of useful accuracy.” Such praise he unquestionably deserves. He edited the opinions of the judges as his predecessors had done, but his statement of the facts, pleadings, and arguments is more concise than Burrow’s, and his work as a whole is less scholastic and technical.
Substantial accuracy and a uniform arrangement of the materials of a case having been attained, the next step in the progress of reporting was the prompt and regular publication of judicial decisions from term to term. This was accomplished in the King’s Bench with the Term Reports, edited by Durnford and East, which were originally published in parts at the end of each term of court. From this time forward the proceedings of the King’s Bench have been regularly and systematically reported. Until 1865 reporting was carried on by private enterprise in each court separately. It often happened that there was more than one reporter from the same court; but some one reporter was understood to be specially authorized by the judges and to have an exclusive, or at least prior, claim to the opinions of the judges as settled and revised by them. Some of the most distinguished of modern English judges, such as Alderson, Cresswell and Blackburn, served an early apprenticeship in reporting, and we have in consequence thoroughly reliable reports of the labors of those great jurists by whom the common law was developed and applied to the needs of modern times.
The Term Reports (1785-1800) cover the term of Chief Justice Kenyon, when Ashhurst, Buller and Lawrence were among the puisnes. The services of Lord Ellenborough and his associates, Lawrence and Bayley, are recorded by East (1801-12) and Maule and Selwyn (1813-17). Barnewall, in association successively with Alderson, Cresswell and Adolphus, reports the decisions of this court from 1817 to 1834, when Lord Tenterden presided over such puisnes as Bayley, Holroyd and Littledale.
The legal reforms contemporaneous with the Reform Bill of 1832 were instrumental in effecting some important changes in the relative value of the different reports. By the Uniformity of Procedure Act the concurrent jurisdiction of the three superior courts of common law was officially established. At the same time, the Exchequer Chamber was reorganized as a regular court of appeal from the three common law courts. The decisions of this appellate tribunal, which was composed on appeals from one court of the judges of the other two, were thereafter included in the reports of the court from which the appeal was taken; and this interchange of judges tended to equalize the standing of the three courts. Aside from this fact, moreover, there was a noticeable revival in the Common Pleas and Exchequer during this period.
Brief reference has already been made to some of the eighteen volumes of decisions of the Court of Common Pleas prior to 1785, chief among which were the individual collections of Chief Justices Orlando Bridgman, Vaughan and John Willes. This court, although a closed court (i. e. only sergeants could argue cases there) until far into the nineteenth century, became very efficient in the last decade of the eighteenth century through the services of several able lawyers who sat on this bench for short periods on their way to scenes of more distinguished labor. The excellent reports of Henry Blackstone (1788-96), recording the services of Loughborough, Eyre, Lawrence, Buller and others, are equal to the best of the King’s Bench reports. From this time the proceedings of the Common Pleas have been regularly reported. But after the retirement of the judges just named the court declined in authority. This falling off is observable during the period covered by Bosanquet and Puller (1796-1807). Taunton’s reports (1808-19) as a whole have never been very highly esteemed. The Common Pleas probably reached its lowest standing in the first five volumes of Bingham’s reports. But the reputation of the court rose rapidly under Chief Justice Tindal (1829-46). The services of this eminent judge, together with his associates, Bosanquet, Maule, and Cresswell, have given deserved repute to the later volumes of Bingham and the reports of Manning and Granger (1840-44). The two series of Common Bench reports (1845-65) represent the highest standard attained by this court. These thirty-nine volumes (particularly the last twenty-five) may be numbered among the classical repositories of the common law, recording as they do the distinguished labors of Jervis, Maule, Cresswell. Vaughan Williams, Willes, Cockburn, Erle and Byles, and the decisions of the Exchequer Chamber on appeal.
Five small volumes comprise our record of the Court of Exchequer prior to 1792. During all this time the Exchequer was hardly regarded as a superior court. Sir Mathew Hale lent distinction to the court after the Restoration, but it was not until far into the nineteenth century that it ranked on an equality with the other two common law courts. The twenty volumes of reports of its proceedings between 1785 and 1830, mostly by Messrs. Anstruther and Price, are seldom cited. Lord Lyndhurst’s acceptance of the chief baronetcy in 1831, after having held the chancellorship, attracted some attention to the court, but it was not until Sir James Parke took his seat upon this bench that its reputation was assured. During the period of Baron Parke’s service (1834-56) the Exchequer exercised an almost dominant authority. The twenty-seven volumes of reports by Messrs. Crompton, Meeson, and Welsby (Crompton and others, 1830-36; Meeson and Welsby, 1836-47; Exchequer Reports, 1847-56), containing the decisions of Parke, Alderson, Pollock, Rolfe and Martin, together with the decisions of the Exchequer Chamber on appeal, have always been highly esteemed for their vast, though for the most part very technical, learning. During the next decade the court, as reported by Hurlstone, was not so effective, in consequence of the habitual conflict of opinion among the barons. Of a bench including Pollock, Martin, Bramwell and Channel, Bramwell was easily the most distinguished.
Notwithstanding the rapid rise in authority of the Common Pleas and Exchequer toward the middle of the last century, the King’s Bench, if it failed to maintain its former preeminence, sustained at all events a corresponding standard of excellence. As a record of the labors of Denman, Littledale, Patteson, and the early services of Coleridge, Wightman, Erle and Campbell, the two series of reports by Adolphus and Ellis (1834-52) have always been held in high esteem. The court attained its highest standing, however, during the period from 1852 to 1865 under Campbell, Coleridge, Wightman, Erle, Cockburn and Blackburn. This period is reported by Messrs. Ellis, Blackburn, Best and Smith.
The chancery reports are of comparatively recent origin. It is not until the last years of the seventeenth century that we have any satisfactory reports of the chancellors’ determinations. Sir John Mitford (afterward Lord Redesdale), writing at the end of the eighteenth century, could still complain of the extreme scarcity of authority; and Lord Eldon, some years later, described Mitford’s book as “a wonderful effort to collect what is to be deduced from authorities speaking so little that is clear.” This slow development was the natural result of the auxiliary nature of the equitable jurisdiction and of the discretionary character of its early administration.
During all these centuries of development we have only a dozen small volumes of so-called chancery reports; in reality they are little more than brief notes on procedure. Of this sort are the cases collected by William Lambert and published under the name of Carey, their editor (1557-1604), which are mostly mere extracts from the registrar’s books, and the so-called Choyce Cases in Chancery (1557-1606), consisting of a collection of notes of cases (mostly between 1576 and 1583), together with a brief treatise on chancery practice. These two volumes contain brief records of many of Ellesmere’s decrees. Tothill’s meagre and imperfect notes extend from Elizabeth to Charles I. (1559-1646). These three collections, which are concerned principally with the reign of Elizabeth, give some idea of the matters dealt with in chancery; but they are extremely brief and unsatisfactory, often giving merely a bare statement of the facts of a case and the final decree, without any indication of the grounds of the judgment.
The seventeenth century reports are not much better. The volume known as Reports in Chancery (1615-1710) is made up mostly of notes of special cases from the reign of Charles I. Nelson (1625-93) records several cases decided by Lord Keeper Coventry, and a few by Littleton and the Parliamentary commissioners. The so-called Cases in Chancery (1660-90) is the best of the earlier reports; it gives in most cases a fair abstract of the chancellor’s judgment, and a few cases are reported quite fully. Dickens’s reports, which extend over a period of more than two hundred years, include some notes of cases as early as the sixteenth century. Freeman’s notes (1676-1706) are unimportant.
In fact, the chancery reports prior to the Restoration are of secondary importance. The official records of the chancery, which begin in the seventeenth year of the reign of Richard II., afford a much more satisfactory and reliable guide to the early history of equity. A selection of these early records, from Richard II. to Elizabeth, has been published by the Record Commission under the title of “Calendar of Proceedings in Chancery.”1 The Selden Society proposes to carry on the work thus begun, and has already published its first volume, “Select Cases in Chancery, 1364-1471.”2 A collection of abstracts from the masters’ reports and from the registrars’ book, published by Cecil Monro under the title, “Acta Cancellariae, 1545-1624,” further illustrate early practice, and serve to correct and supplement many of the reported cases.
Lord Nottingham’s very important chancellorship is covered by the folio volume entitled Reports temp. Finch (1673-80), which is made up of cases in which the reporter was counsel. The work is miserably executed; the statement of facts is defective, and there is only an occasional statement of the arguments; the report concludes with a mere abstract of the decree, without any reference to the reasoning upon which it is based. The only reports at present available that do any sort of justice to the great chancellor’s reputation are those published by Swanston in an appendix to the third volume of his chancery reports.3
The manuscript of Vernon’s reports (1681-1720) was found in the study of that eminent lawyer after his death. Although these volumes constitute our first considerable collection of chancery cases, the reports are very brief and are often inaccurate; they are a most inadequate memorial of the labors of such distinguished chancellors as Nottingham, Somers and Cowper.
The first clear and accurate chancery reports are those prepared by Peere Williams (1695-1736). These excellent reports cover a period during which eminent lawyers presided in chancery, and they have always been regarded as one of the classical repositories of equity. Their value has been enhanced by Cox’s scholarly annotations.1 Precedents in Chancery (sometimes called Finch’s, 1689-1722), generally supposed to be the notes of Pooley, the reputed author of Equity Cases Abridged, is of fair repute. Gilbert (1705-27) is of little value. King’s chancellorship is covered by the reports bearing his name (1724-34) and by Moseley (1726-30), neither of which is particularly good. Cases temp. Talbot (1731-37) is somewhat better. W. Kelynge (1731-36) contains notes of cases by both King and Talbot.
Of all the great lawyers who have administered equity Lord Hardwicke admittedly stands at the head. The desirability of an authentic collection of his perspicuous and invaluable opinions prompted an undertaking some years ago to reprint his cases, revised and corrected from original manuscript.2 Unfortunately the work was abandoned after completing the first three years. Meanwhile our main reliance for Hardwicke’s work is Atkyns (1736-54), Vesey, senior (1746-56), and Ambler (1737). These reports, although much improved in subsequent editions, are extremely unsatisfactory; their statement of facts is often defective, their reports of the arguments of counsel are far from lucid, and sometimes they give an incorrect report of the decree. Dickens’s brief reports (1559-1798), which deal for the most part with the last half of the eighteenth century, are the work of a registrar of the court. Other decisions by Lord Hardwicke are scattered through 9th Modern, Ridgeway, Lee, Kenyon and Cox.
The services of Lord Keeper Henley are recorded by Eden (1757-66), and much more satisfactorily than by the brief and inaccurate reports of Ambler, which also extend through this period. Unfortunately, the second part of Ambler is our main reliance for Lord Camden’s work. Most of Lord Thurlow’s service is covered by Cox’s perspicuous and accurate reports (1783-96). These volumes, which may be termed the first complete reports in chancery, also record part of Lord Loughborough’s service as chancellor, as well as Kenyon’s decisions as master of the rolls. Brown’s reports (1778-94), extending over part of the same period, are not so trustworthy; but they have been improved by the annotations of Eden and Belt. The first five volumes of Vesey, junior, cover the last years of Thurlow’s service, all of Loughborough’s, and include Sir Pepper Arden’s decisions as master of the rolls.
Lord Eldon’s herculean labors are preserved in some thirty volumes, of which the reports of Vesey, junior (1789-1816), record nearly one half. These very important reports were much improved by Belt’s subsequent annotations and corrections. They contain also most of Sir William Grant’s decisions as master of the rolls. Lord Eldon’s other reporters are Vesey and Beames (1812-14), Cooper (1815), Merivale (1815-17), Swanston (1818-19), Jacob and Walker (1819-21), Jacob (1821-22), and Turner and Russell (1822-24).
The strong personalities of Lyndhurst and Brougham did not suffice to conceal their deficiencies in special learning, and their administration of equity, as recorded in Russell’s reports, failed to add to their reputation. Lord Cottenham, on the other hand, was deeply learned in the principles and practice of the chancery jurisdiction, and the ten volumes of reports of his decisions by Messrs. Mylne, Craig, Phillips, Macnaghten and Gordon are among the most authoritative expositions of technical equity. But the twenty volumes of reports by De Gex and his several associates (1851-65) have probably been cited oftener in later times, and have carried more weight than any of the contemporary chancery reports. Their standing is not due entirely to the ability of the chancellors during this period—although the list includes, in addition to Cranworth, Campbell and Chelmsworth, such eminent equity lawyers as St. Leonards and Westbury,—but also to the fact that they record the labors of Lords Justices Knight-Bruce and Turner in the Court of Appeal in Chancery.
The decisions of the masters of the rolls, which have been regularly reported in a separate series since 1836, are, as a whole, inferior to those of the vice-chancellors. Lord Langdale’s work, as reported by Keen (1836-38) and Bevan (1838-66), is eminently respectable; but the last twenty-three volumes of Bevan’s reports, containing Lord Romilly’s decisions, have not been highly esteemed, although the labors of a very able bar supplied many deficiencies.
The seventy volumes of reports of the proceedings of the vice-chancellors vary considerably in authority. Beginning in mediocrity, they advance steadily in value. The work of the first vice-chancellors, Plumer and Leach, as reported by Maddock (1815-22) and Simons and Stuart (1822-26), carries little weight. The same may be said of Smale and Giffard’s reports of Vice-Chancellor Stuart’s decisions. The services rendered by their successors, Shadwell and Kindersley, reported by Simons (1826-52) and Drewry (1852-65), show much improvement. The labors of Knight-Bruce, as recorded in Younge (1841-43), Collyer (1844-45), and De Gex (1846-52), and of Wigram and Turner, in Hare (1841-53), were of a very high order, often outranking in the estimation of the profession the determinations of the chancellor himself. Probably the most substantial contribution to equity was made by Vice-Chancellor Page-Wood, whose very able discharge of the duties of this position led to his subsequent elevation to the woolsack as Lord Hatherley. The reports of Hare, Kay, Johnson and Hemming, from 1853 to 1865, covering most of his service as vice-chancellor, have probably been cited oftener than any other reports from this court.1
The ecclesiastical and admiralty courts and the appellate jurisdiction of the House of Lords and the Privy Council present no great difficulties. As a system of judicial precedents the ecclesiastical and maritime jurisdictions practically date from Lord Stowell’s time; since then the proceedings of these courts have been quite fully reported. The judgments of the House of Lords during the eighteenth century are recorded by Brown and Tomlins; the reasons upon which some of these judgments are based may occasionally be found in the common law and chancery reports of the time. Complete reports of appeal cases date from 1812; since then, with a single break between 1825 and 1827, the judicial proceedings of the House have been admirably reported. Regular reports of the judicial proceedings of the Privy Council practically begin with the organization of the Judicial Committee.
The present method of systematic reporting dates from 1865. The “authorized” reports, conducted in each court separately as commercial undertakings, were costly and dilatory. Aside from frequent duplication in particular courts, several legal newspapers issued reports of their own which were cheaper, more prompt, and often superior to their rivals. This competition involved an immense waste of time, labor and money. At length, in 1863, a committee of the Bar devised the present system of coöperative reporting, which soon superseded the old reports. The regular reports are now issued under the general supervision of the Incorporated Council of Law Reporting, assisted by the General Council of the Bar.
LIST OF PRINCIPAL SOURCES OF MEDIAEVAL EUROPEAN LAW1
Leges Barbarorum (Folk Laws)
Lex Salica, ed. Hessels and Kern. London, 1880.
Lex Burgundionum. Monumenta Germaniæ Historica, Fo. Leges, tom. iii. pp. 497-578; and ibid., 4° Leges, sect. i. tom. ii. pp. 1-122.
Lex Ribuaria. Ibid., Fo. Leges, tom. v. pp. 185-268.
Lex Wisigothorum, ed. Bluhme. Paris. 1847.
Leges Langobardorum. Mon. Germ. Fo. Leges, tom. iv. pp. 1-225.
Lex Alamannorum. Ibid., tom. iii. pp. 1-182; and ibid., 4° Leges, sect. i. tom. v. pp. 1-176.
Leges Baiuwariorum. Ibid., Fo. Leges, tom. iii. pp. 183-496.
Lex Frisionum. Ibid., Fo. Leges, tom. iii. pp. 631-711.
Lex Thuringorum. Ibid., Fo. Leges, tom. v. pp. 103-144.
Lex Saxonum. Ibid., Fo. Leges, tom. v. pp. 1-102.
Lex Francorum Chamavorum. Ibid., Fo. Leges, tom. v. pp. 269-276.
Leges Anglo-Saxonum, ed. Schmid (Die Gesetze der Angelsachsen), Leipzig, 1858.
[Also ed. Liebermann, Die Gesetze der Angelsachsen. Halle, 1897-1907.]
Leges Sveonum, ed. Collin and Schlyter (Samling af Sveriges gamla lagar). Stockholm and Lund. 1827-1877.
The Westgötalag has also been edited, with a French translation, by Beauchet. Paris. 1894.
Leges Norvegorum, ed. Keyser, Munch, and Storm (Norges gamle Love.) Christiania. 1846-1895.
Leges Danorum, ed. Kolderup-Rosenvinge (Samling af gamle danske Love.) 1821-1846.
There does not appear to be any separate collection of Icelandic Folk Laws; but most of them will be found in the Norwegian and Danish collections.
Capitularia Regum Francorum. Mon. Germ. Fo. Leges, tom. i. and ii. pp. 1-16, and 4° Leges, Sect. ii. tom. i. and ii.
Capitularia Regum Langobardorum. See Leges Langobardorum.
Corpus Juris Canonici, ed. Friedberg. Leipzig. 1879. Containing—
Codex Theodosianus, ed. Hänel. Bonn. 1839-1842.
Lex Romana Wisigothorum (“Breviarium Alaricianum”), ed. Hänel. 1849.
Edictum Theoderici. Mon. Germ. Fo. Leges, tom. v. pp. 145-179.
Lex Romana Burgundionum. Mon. Germ. Fo. Leges, tom. iii. pp. 579-624, and 4° Leges, Sect. i. tom. ii. pp. 123-188.
Corpus Juris Romani Justinianei. Berlin. 1895. Containing—
English:Statutes of the Realm from Magna Carta to the end of the Reign of Queen Anne. 11 vols. 1810-1828.
Scottish:The Acts of the Parliaments of Scotland. 11 vols. 1814-1824.
German:Constitutiones et Acta Regum Germanicorum. Mon. Germ. Fo. Leges, tom. ii. pp. 16-582, and 4° Leges, Sect. iv. tom. i. and ii.
Collectio Constitutionum Imperialium, ed. Goldast. 4 vols. 1609-1615.
Neue . . . Sammlung der Reichsabschiede, ed. Koch. 4 vols. 1747.
French:Ordonnances des rois de France de la troisième race, ed. Laurière, etc. 21 vols. 1723-1849.
Spanish:Teatro de la Legislacion Universal de España et Indias.
This edition also contains extracts from the other Sources of Spanish Law, analytically arranged.
Swedish: Diplomatarium Suecanum, Liljegren and Hildebrand. 1829-1878.
Volume II. of Hadorph’s Rym-Krönikor. Stockholm. 1674, also contains statutes of later date than those given in the Diplomatarium.
Norwegian: Diplomatarium Norvegicum, Lange and Unger. 12 vols. 1848-1888.
A good many of the older statutes will also be found in Keyser and Munch, Norges gamle Love. Christiania. 1846-1895.
Danish: Aarsberetninger fra det kongelige Geheimearchiv, vol. v.
Corpus Constitutionum Daniae, Secher, 1887.
Regiam Majestatem, in Acts of the Parliament of Scotland, vol. i. pp. 597-641.
Quoniam Attachiamenta. Ibid., pp. 645-659.
Iter Camerarii. Ibid., pp. 693-702.
Concordia, in Mon. Germ. Fo. Leges, tom. iv. pp. 235-288.
Liber Papiensis. Ibid., pp. 290-585.
Expositio. Ibid. (as a commentary on the Liber Papiensis.)
Lombarda. Ibid., pp. 607-638.
Libri Feudorum. See De Feudis Libri Quinque of Cujacius. Lyons. 1566.
(The Libri Feudorum are sometimes printed as an Appendix to the Corpus Juris Civilis, as Decima Collatio Novellarum.)
Codex Babenbergensis, in Eccard, Corpus Historicum Medii Aevi. 1723. Vol. ii.
Auctor Vetus de Beneficiis. in
Sachsenspiegel, ed. Homeyer. 1842-1861.
Summa Prosarum Dictaminis, ed. Rockinger. Quellen und Erorterungen zu bayrische Geschichte, ix. 203.
Deutschenspiegel, ed. Ficker, Der Spiegel deutsche Leute. 1859.
Schwabenspiegel, ed. Lassberg. 1840.
Summa Curiae Regis, ed. Stobbe, in Archiv. fur Oesterreichische Geschichte, xiv. 307.
Kleine Kaiserrecht, ed. Endemann. 1846.
Bambergensis (Johann v. Schwartzenberg), ed. Mentz. 1510.
Très Ancien Coutumier de Normandie, ed. E. J. Tardif, Coutumiers de Normandie, Part I. 1881.
Establissemens le Roy (St. Louis), in Laurière, Ordonnances, vol. i., and ed. Viollet. 3 vols. 1881-1883.
Coutumes de Toulouse, ed. A. Tardif. 1884.
Grand Coutumier Normand. ed. Gruchy, L’ancienne Coutume de Normandie, 1881; and E. J. Tardif, op. cit., vol. ii. 1896.
Charte aux Normands, in Coutume reformée de Normandie, ed. Basnage. 1694.
Très Ancienne Coutume de Bretagne, in Bourdot de Richebourg.
Grant Coustumier de France, ed. Dareste and Laboulaye. 1868.
Style de du Breuil, ed. Lot. 1877.
Grant Coutumier de France. ed. Dareste and Laboulaye. 1868.
Coutume de Poitou, ed. Beautemps-Beaupré. 1865.
Coutume de Berry, ed. Thaumassière. 1701.
The following text-books, though influential, can hardly be regarded as Sources:—
Assises de Jérusalem. Beugnot. 1841-1843. 2 vols.
Le Conseil de Pierre de Fontaines. ed. Marnier. 1846.
Le Livre de Justice et de Plet. ed. Rapetti. 1850. (Collection des documents inédits.)
Coutumes de Beauvoisis par Philippe Beaumanoir, ed. Beugnot. 2 vols. 1842.
La Somme Rurale de Jean Boutillier, ed. Charondas, 1603.
Sjallandske Love (the so-called “Waldemar’s” and “Erik’s”) in Kolderup-Rosenvinge, Samling af Gamle danske Love, 1821-1846, vol. ii.
Thord Degn’s Artikler. Ibid., vol. iii.
Most of the early charters affecting English Law will be found collected in Stubb’s Select Charters . . . of English Constitutional History. 1870.
Leges inter Scottos et Brettos, in Acts of the Parliament of Scotland, vol. i. pp. 663-665.
Use of Merchis. Ibid., pp. 713-716.
Oesterreichisches Landrecht, ed. Hasenöhrl. 1867.
Leges Upstalsbomicae, in Richthofen, Friesische Rechtsquellen. 1840.
Bairisches Landrecht of 1516, ed. Munich. 1520.
Schlesisches Landrecht, ed. Gaupp. 1828.
Dithmarsisches Landrecht, ed. Michelsen. 1842.
Wurtemberger Landrecht, ed. Reyscher. 1834.
Pfalzer Landrecht, ed. Vögelin. 1611.
All the important official Coutumiers are to be found in Bourdot de Richebourg, Coutumier Général. 1724.
El Fuero viejo de Castilla, ed. Asso and Rodriguez. 1771.
Espejo de todos los Derechos, in Opúsculos Legales del Rey Don Alfonso el Sabio, 1836, vol. i.
El Fuero Juzgo. Madrid, 1815 (by Royal Academy); the Latin text also in Monumenta Portugalie, vol. i.
El Fuero Real. ed. Montalvo, 1544, and in Opúsculos Legales, vol. ii.
Las Siete Partidas, ed. Lopez. 1555. 3 vols., and ed. Nys. 1883.
Ley de Toro, ed. Castello. 1527.
Neuva Recopilacion, ed. 1592 (Alcala).
Sweden: Magnus Eriksson’s Landslag, in Collin and Schlyter, Samling af Sveriges gamla lagar, vol. X.
Christopher’s Landslag. Ibid., vol. xii.
The code of Charles IX., though not coming in our period, may be of value as an illustration. It was published in a Latin translation by Loccenius. Stockholm. 1672.
Norway: Magnus Haakonson’s (“Lagabotir’s”) Landslög, in Keyser and Munch. Norges gamle Love, vol. ii.
Almost contemporary with the Code of Charles IX. for Sweden is the Code of Christian IV. for Norway, ed. by Hallager and Brandt. Christiania. 1855.
Leges Quatuor Burgorum, in Acts of the Parliament of Scotland, vol. i. pp. 703, 704.
Articuli in itinere Camerarii. Ibid., pp. 680-682.
The chief collections of medieval German Town Laws are those of—Gaupp. Deutsche Stadtrechte des Mittelalters. 1851-1852.
Gengler. Id. 1852.
Bischoff. Oesterreichische Stadtrechte und Priveligien. 1857.
Etablissemens de Rouen, ed. Giry. 1883.
Statuts de Montpellier.
Statuts de Marseilles.
Statuts d’Avignon, ed. De Maulde. 1879.
Coutume de Toulouse, in Bourdot de Richebourg, op. cit.
Sweden: The old Swedish Town Laws are printed in the collection of Collin and Schlyter, so often referred to.
Norway: The “old” and the “new” Bylov for Norway are printed in vols. i. and ii. respectively of Keyser and Munch. Norges Gamle Love.
Denmark: The Sleswig, Flensborg, Aabenra, and Haderslev Laws are edited by Thorsen (Jydske Lov, etc.). 1855.
Weisthümer, gesammelt von J. Grimm. 1840-1878.
Recueil des jugements de l’Echiquier de Normandie, ed. Delisle. 1864.
Plaids de l’Echevinage de Reims, ed. Varin, in Archives Administratives de Reims, vols. i. and ii.
Les Olim (du Parlement de Paris), ed. Beugnot. 1839.
Registre Criminel du Châtelet, ed. Société des Bibliophiles français. 1861. 2 vols.
Parloir aux Bourgeois, ed. Le Roux. 1846.
Leyes del Estilo, in Opúsculos Legales del Rey Don Alfonso el Sabio, 1836, vol. ii.
Udvalg af gamle Danske Domme. Kolderup-Rosenvinge. 1842. 4 vols.
SUPPLEMENTARY LIST OF REFERENCES1
Bibliography and General Reference.
Gavet, G., Sources de l’histoire des institutions et du droit français; manuel de bibliographie historique, 1899 (the best general bibliographical and critical survey of European law).
Dareste, R., Etudes d’histoire du droit; 1st ser. 1889, 2d ser. 1902, 3d ser. 1906.
Commercial and Maritime Law.
Goldschmidt, L., Handbuch des Handelsrechts; Part I, Universal-geschichte des Handelsrechts (3d ed. 1891).
Desjardins, A., Introduction historique à l’étude du droit commercial maritime, 1878.
Pardessus, J. M., Collection des lois maritimes antérieures au XVIIIe siècle, 6 vols., 1828-45.
Monumenta Germaniae Historiae. Quarto Edition. More recent volumes have appeared as follows:
Sect. I, Tom. I, Leges Visigothorum, ed. Zeumer, 1902.
Sect. IV, Tom. III, Constitutiones ad 1273-1298, ed. Schwalm, 1904-6.
In Brunner’s Deutsche Rechtsgeschichte, ed. 1906 (infra under Germany) is the latest and most authoritative examination of these sources.
Roman Mediaeval Law.
In Professor Maitland’s English Law and the Renaissance (Essay No. 6, ante. Vol. I, p. 168) will be found bibliographical data, including the subject of the Reception of Roman Law; to which may be added:
Flach, J., Etudes critiques sur l’histoire du droit romain au moyen âge, 1890.
Halban, A. v., Das romisches Recht in den germanischen Volkstaaten, 1899-1901.
Wilmanns, Die Reception des römischen Rechts und die sociale Frage des Gegenwarts, 2d ed., 1896.
Ficker, J., Untersuchungen zur Rechtsgeschichte, 1891-99.
Oesterreichische Weisthümer; pub. by Kaiserliche Akademie der Wissenschaften, Wien, 8 vols., 1870-1906.
Recueil des anciens Ordonnances et Coutumes de la Belgique; pub. by Commission Royale, etc., 86 vols., 1868-1906.
Beaune, H., Introduction à l’étude historique du droit coutumier, etc., 1880.
—, Droit coutumier français, 3 vols., 1882-89.
Brissaud, J., Manuel d’histoire du droit français, 2 vols., 1898-1907 (this contains profuse bibliographies).
Brunner, H., Ueberblick über die Geschichte der französischen, normannischen, und englischen Rechtsquellen (in Holtzendorff’s Encyclopädie, 3d ed., 1877).
Esmein, A., Cours elementaire d’histoire du droit français, 1895.
Flach, J., Les origines de l’ancienne France, 3 vols., 1886-1904.
Fournier, M., Histoire de la science du droit en France, 6 vols., 1892-1902.
Glasson, E., Histoire du droit et des institutions politiques de la France, 8 vols., 1887-1903 (specially useful for bibliography).
Tardif, A., Histoire des sources du droit français, 1890.
Viollet, P., Histoire du droit civil français, 1893.
—, Histoire des institutions politiques et administratives de la France, 3 vols., 1890-98.
Amira, K. v., Grundriss des germanischen Rechts, 1901 (this, with Brunner’s works, gives the latest and most comprehensive bibliographies).
Brunner, H., Deutsche Rechtsgeschichte (1st ed., 1887-92, 2d ed., vol. I., 1906).
—, Forschungen zur Geschichte des deutschen und franzosischen Rechts (1894).
—, Grundzüge der deutschen Rechtsgeschichte (1st ed., 1901, 2d ed., 1905).
—, Quellen und Geschichte des deutschen Rechts (in Holtzendorff’s Encyclopädie, 6th ed., 1904).
Daniels, Gruber, Kuhns, and Massman, Rechtsdenkmaler des deutschen Mittelalters, 3 vols., 1857-63.
Gengler, H., Germanische Rechtsdenkmaler, 1875.
—, Deutsche Stadtrechtsalterthümer, 1882.
Gierke, O., Rechtsgeschichte der deutschen Genossenschafts, 3 vols., 1868-1881.
Grimm, J., Deutsche Rechtsalterthümer, 2 vols., 4th ed. by Heusler, 1889.
Hensler, A., Institutionen des deutschen Privatrechts, 2 vols., 1883-85.
Lehmann, H. O., Quellen zur deutschen Reichs- und Rechtsgeschichte, 1891.
Loersch and Schroeder, Urkunden zur Geschichte des deutschen Privatrechts, 2d ed., 1881.
Maurer, K. v., Geschichte der Mark-, Hof-, Dorf-, und Stadt-Verfassung, 9 vols., 1854-1877.
Rozière, E. de, Recueil général des formulaires usitées dans l’empire des Francs du Ve au Xe siècle, 3 vols. 1859-71.
Schroeder, R., Lehrbuch der deutschen Rechtsgeschichte, 4th ed., 1902.
Stintzing, R., Geschichte der deutschen Rechtswissenschaft, 3 vols., 1880-98.
Stobbe, O., Geschichte der deutschen Rechtsquellen, 2 vols., 1860-64.
Waitz, G., Deutsche Verfassungsgeschichte, 8 vols., partly 2d ed., 1844-1896.
Wasserschleben, H., Sammlung deutscher Rechtsquellen, 2d ed., 1892.
Wattenbach, W., Deutschlands Geschichtsquellen im Mittelalter, 2 vols., 7th ed., 1904.
Zeumer, K., Quellensammlung zur Geschichte der deutschen Reichsverfassung, 1904.
Zoepfl, H., Altertumer des deutschen Reichs und Rechts, 3 vols., 1860-61.
Calisse, C., Storia del diritto italiano, 3 vols., 2d ed., 1902-07.
—, Storia del diritto penale italiano, 1895.
Ficker, J., Forschungen zur Reichs- und Rechtsgeschichte Italiens, 1868.
La Mantia, V., Storia della legislazione italiana, vol. i, 1884.
Padelletti, G., Fontes juris italici mediaevi, 1877.
Pertile, A., Storia del diritto italiano, 6 vols., 2d ed., 1903.
Salvioli, G., Manuale di storia del diritto italiano, 4th ed., 1903.
Schupfer, F., Manuale di storia del diritto italiano, 3d ed., 1904.
Oude Vaderlandsche Rechtsbronnen; pub. by Vereeniging tot de Uitgaaf der Bronnen, etc., 1st ser., 20 vols., 1880-1903, 2d ser., 7 vols., 1903-1906.
Fockema-Andreae, S. J., Bijdragen tot de Nederlandsche Rechtsgeschiedenis, 4 vols., 1892-1900.
—, Het Oud-Nederlandsche Burgerlijk Recht, 2 vols., 1906.
Richthofen, K. v., Untersuchungen über friesische Rechtsgeschichte, 3 vols., 1880-1886.
General. Amira, K. v., Nordgermanisches Obligationenrecht, 2 vols., 1882-95.
Aagesen, A., Fortegnelse over Retssamlingar og Retsliteratur, i Danmark, Norge, Sverige, og til dels Finlands, 1876.
Maurer, K. v., Ueberblick uber die Geschichte der Nordgermanischen Rechtsquellen (in Holtzendorff’s Encyclopädie, 3d ed., 1877).
—, Vorlesungen über altnordische Rechtsgeschichte, 1906-7.
Norway. Norges gamle Love, ed. Kayser and Munch, is continued in a second series, ed. Taranger, vol. i, 1904.
Taranger, Udsigt over den norske Retshistorie, 1898.
Iceland. Sigurdsson, Diplomatarium Islandicum, 8 vols., 1857-1906.
Stephenson and Sigurdsson, Lovsamling for Island, 1832.
Spain and Portugal
Alcubilla, M. M., Codigos antiguos de España, 2 vols., 1855 (reprints of the principal ones from Fuero Juzgo to Novisima Recopilacion).
Hinojosa, E. de, Historia general del derecho español, vol. i, 1887 (with bibliography of the early period, and list of prior historians).
Marichalar, A., and Manrique, C., Historia de la legislacion y recitaciones del derecho civil de españa, 9 vols., 1861-1868.
Ureña, R. de, Historia de la literatura juridica española, 2 vols. (not completed), 2d ed., 1906 (the most comprehensive and critical bibliographical work).
Visigothic law, new editions:
Leges Visigothorum antiquiores, ed. Zeumer, 1894.
Lex Romana Visigothorum, ed. Regia Historiae Academia Hispana, 1896.
Portugal. Collection complète des ouvrages sur l’histoire du droit portugais, Freirius, 7 vols., 1827-49.
Huber, E., System und Geschichte des Schweizerischen Privatrechts, 4 vols., 1886-93.
Sammlung Schweizerischer Rechtsquellen, 6 vols., 1890-1906.
Segesser, P. A., Amtliche Sammlung der älteren eidgenossischen Abschiede, 3 vols., 1843-74.
A SHORT BIBLIOGRAPHY OF AMERICAN COLONIAL LAW1
Addison, Alexander. Charges to Grand Juries in Pennsylvania, 1791-1798. Washington, Pa., 1799.
Andrews, Chas. M. The Connecticut Intestacy Law. Yale Review, 1894.
Arnold, Samuel Green. History of Rhode Island. Providence, 1894.
Balch, Thomas. Letters and Papers relating to the Provincial History of Pennsylvania. Philadelphia, 1855.
Baldwin, Simeon E. American Business Corporations before 1789. Rep. Amer. Hist. Assoc., 1902, I, 255.
—. The American Judiciary. New York, 1905.
—. Modern Political Institutions. Ch. 6, 7. New York, 1898.
—. Three Constitutions of Connecticut. New Haven Hist. Soc. Papers, V., 180.
Batchellor, A. S. Development of Probate Law in New Hampshire. Concord, 1907.
Bassett, J. S. Landholding in Colonial North Carolina. Law Qu. Rev. 11: 154.
Belknap, Jeremy. History of New Hampshire. Dover, 1831.
Bell, Charles H. Bench and Bar of New Hampshire. Boston, 1894.
Benedict. American Admiralty. Ch. 9.
Blenman, J. Remarks on the Trial of Zenger for Libel in New York. London, 1738.
Bonney, C. C. Practical Law Reform. Ill. State Bar Assoc. Rep., 1882.
Bronson. Early Government in Connecticut. New Haven Hist. Soc. Papers, III, 291.
Brown. Civil Liberty in Maryland. Maryland Hist. Soc. Papers, 1850.
Brown, Alexander. The First Republic in America. Boston, 1898.
—. The Genesis of the United States. Boston, 1890.
Browne, Irving. William Sampson. Green Bag, 1896.
Butler, Wm. A. The Revision and the Revisors. New York.
Byrd, William. History of the Dividing Line and other Tracts. Richmond, 1866.
Calendar of State Papers. Colonial Series; America and the West Indies, 1677-1698. (6 vols., last vol. dated 1904.)
Calendar of Virginia State Papers.
Calvert Papers. Maryland Hist. Soc. Publications. Baltimore, 1889.
Campbell, Charles. History of the Colony and Ancient Dominion of Virginia. Philadelphia, 1860.
Carpenter, A. H. Habeas Corpus in the Colonies. Am Hist. Rev. 8: 18-27.
Carter, J. C. New York Practice Code. Am Bar Assoc. Rep., 1895.
—. The Proposed Codification of our Common Law. Am. Bar Assoc. Rep., 1884.
Chalmers, George. Opinions of eminent Lawyers on various Points of English Jurisprudence chiefly concerning the Colonies. London, 1858.
—. Political Annals of the Present United Colonies. London, 1780.
Century of Law Reform. New York, 1901.
Chipman, Daniel. Reports (Vermont). Introductory Dissertation.
Clarke, R. Digest of Law Publications. Cincinnati, 1879.
Collections of the Connecticut Historical Soc., Vol. I. Hartford, 1860.
Collections of the Historical Soc. of South Carolina.
Common Law Jurisdiction. No. Amer. Rev., 21: 104.
Commonwealth vs. Knowlton, 2 Mass. 530.
Coxe, B. Judicial Power and Unconstitutional Legislation, Phila., 1893.
Dallas (Pennsylvania) Reports.
Daly, Charles P. The Common Law. Albany, 1894.
—. Preface to 1 E. D. Smith’s Reports (New York).
Davis, Andrew M. Corporations in the Days of the Colony. In Publication of Colonial Society of Massachusetts, I, 196. Boston, 1895.
Delaware Historical Soc. Papers, Vol. II.
De Lovio vs. Boit, 2 Gallison 470.
Denis, Henry. The Analogies and Differences of the Civil and Common Law (Louisiana). Am. Law Rev., 33: 28-41.
Dillon, John F. The Laws and Jurisprudence of England and America. 1895.
Documents relative to the Colonial History of New York.
Duke of York’s Laws. Charters and Laws of Pennsylvania. (Published at Harrisburg, Pa., 1879.)
Dwight (Loomis) and Calhoun (J. G.). Judicial and Civil History of Connecticut. 1895.
Eliot, Edward C. The Common Law of the Federal Courts. Am. Law Rev., 36: 498-525.
Etting. Admiralty Jurisdiction in America. Philadelphia, 1879.
Ewart, John S. What is the Common Law? Columb. Law Rev., IV, 116-126.
Fernow, Berthold. Calendar of Wills, 1626-1836. New York, 1896.
Field, David D. American Progress in Jurisprudence. Am. Law Rev. 27: 641.
—. Codification in United States. Jurid. Rev., I, 18.
—. Speeches, Arguments, and Miscellaneous Papers. Edited by A. P. Sprague and T. M. Coan. New York, 1884-1890.
Field, Henry M. Field Family History.
Field, Richard S. Provincial Courts of New Jersey. New York, 1849.
First National Bank vs. Kinner, 1 Utah 106.
Force, Peter. Tracts and other Papers. Washington, 1844.
Fowler, Robert L. History of the Law of Real Property in New York. New York. Baker. 1895.
Gambrall, Th. C. Studies in the Civil, Social, and Ecclesiastical History of Early Maryland. New York, 1893.
Gray, F. C. Remarks on the Early Laws of Massachusetts Bay. Massachusetts Hist. Collections, Third Series, VIII, 191.
Grants and Concessions of New Jersey.
Grubb, Ignatius C. The Colonial and State Judiciary of Delaware.
Hawks, F. L. History of North Carolina. Fayetteville, 1859.
Hening. Statutes at Large of Virginia.
Hoadly, George. The Codification of the Common Law. Amer. Law Rev. 23: 495-520.
Hollister, G. H. History of Connecticut. New Haven, 1855.
Howard, G. E. History of Matrimonial Institutions. Part III. Chicago, 1904.
—. Local Constitutional History of the United States. Baltimore, 1889.
Howison, R. R. History of Virginia. Philadelphia, 1846.
Hubbard’s History. Massachusetts Historical Collections: Second Series, VII, 320.
Hutchinson Papers. Prince Society Publications. Albany, 1865.
Illinois Historical Collections, Vol. II, 1907. Cahokia Records.
Jefferson, Thomas. Complete Works. Washington, 1853-1854.
Jones, Hugh. The Present State of Virginia (1724). New York, 1865.
Kellogg, Louise P. The American Colonial Charter. Rep. Am. Hist. Assoc., 1903. I, 187.
Kilty, John. Landholder’s Assistant. Baltimore, 1808.
Kinne, Asa. Imprisonment for Debt. New York, 1842.
Laussat, Anthony. Equity in Pennsylvania. 1825. Pennsylvania Bar Assoc. Rep., Vol. I.
Laws of Pennsylvania. Edition of 1810.
Lechford, Thomas. Plaine Dealing, or News from New England. Trumbull’s Edition. Boston, 1867.
—. Note Book, 1638-1641. In Trans. of the American Antiquarian Society, Vol. VII. Cambridge, 1885.
Legal Condition of Women. No. Amer. Rev., April, 1828.
Lewis, Lawrence. Courts of Pennsylvania in the 17th Century. Pennsylvania Bar Assoc. Rep., Vol. I.
Lewis and Newhall. History of Lynn. Boston, 1865.
Livingston, Edw. Codes and Reports on Codes. New York, 1872.
Marks vs. Morris, 4 H. & Mun. 493.
Martin. Statutes of Parliament in force in North Carolina in 1792.
Maryland Archæological Society Proceedings.
Maryland Archives, Proceedings and Acts of the General Assembly.
—. Proceedings of the Council.
Massachusetts Historical Society Collections.
McCrady, Edward. The History of South Carolina under the Proprietary Government. New York, 1897.
McKennon vs. Winn (Okl.). 22 L. R. A., 501.
McMahon, John Van Laer. Historical View of the Government of Maryland. Baltimore, 1831.
Metcalf (Theron) and Perkins (J. C.). Digest of the Decisions of the Courts of Common Law and Admiralty in the United States. Vol. I. Boston, 1846.
Mills, Robert. Statistics of South Carolina. Charleston, 1826.
Morgan vs. King, 30 Barbour 13.
Morris, W. O. The Civil Code of New York. Fortn. Rev. 14: 294.
Meyers vs. Gemmel, 10 Barbour 541.
Neill, Edward D. Virginia Carolorum. Albany, 1886.
New York Historical Society Collections.
Osgood, Herbert L. The American Colonies in the Seventeenth Century. 3 vols., 1904.
Palfrey, John Gorham. History of New England. Boston, 1858-1898.
Penn and Logan Correspondence. Memoirs of the Historical Society of Pennsylvania, Vols. IX and X. Philadelphia, 1870.
Pownall, Thomas. The Administration of the Colonies. London, 1768.
Potter, Platt. Dwarris on Statutes and Constitutions. Albany, 1871.
Prince, W. F. The First Criminal Code of Virginia. Rep. Am. Hist. Assoc., 1899. I, 309.
Quincy (Massachusetts) Reports.
Ramsey, David. History of South Carolina. Charleston, 1808.
Randolph, Edward. Prince Society Publications. Boston, 1898.
Records of New Amsterdam. New York, 1897.
Rivers, William James. A Sketch of the History of South Carolina Charleston, 1856.
Roberts. Digest of British Statutes in force in Pennsylvania.
Rogers, H. J. (Edited by). International Congress of Arts and Sciences, St. Louis, 1903. Vol. 2. History of Law.
Russell, W. The California System of Codes. Mich. L. J. II, 279.
Sampson, Wm. Discourse before the New York Historical Society on the Common Law. 1823.
Sharswood, George. The Common Law of Pennsylvania. Pennsylvania Bar Assoc. Rep., Vol. I.
Simmons, John F. The Territorial Expansion of the Common Law Ideal. Mich. Law Rev., 4: 1-18.
Smith, George. History of Delaware County. Philadelphia, 1862.
Smith, Wm. History of New York. Albany, 1814.
Smith, Samuel. History of the Colony of New Jersey. Burlington, 1765.
Sparks, F. E. Causes of the Maryland Revolution of 1689. (Johns Hopkins University Studies). Baltimore, 1896.
State vs. Campbell. T. W. P. Charlton’s Reports (Ga.), 166.
Stokes, Anthony. View of the Constitution of the British Colonies in North America and the West Indies. London, 1783.
Story, On the Constitution. Sections 146-198.
Suffolk Deeds. Boston, 1880-1897.
Terry. Leading Principles of Anglo-American Law. 1884.
Thayer, J. B. A Chapter of Legal History in Massachusetts. Harvard Law Rev., 9: 1.
—. Miscellaneous Essays, 1908.
Thomas, Gabriel. Historical and Geographical Account of Pennsylvania and West Jersey. London, 1698.
Tower, Charlemagne. The Charlemagne Tower Collection of American Colonial Laws. Privately printed for the Historical Society of Pennsylvania. 1890.
Trumbull, John Hammond (Ed.). The True Blue Laws of Connecticut and New Haven. Hartford, 1876.
Two Centuries of Growth of American Law, 1701-1901. By Members of the Faculty of Yale Law School. Yale Bicentennial Publication.
Van Ness vs. Packard, 2 Pet. 144.
Virginia Historical Collections.
Washburne, Emory. Sketches of the Judicial History of Massachusetts. Boston, 1840.
White, H. Civil Government in the New Haven Colony. New Haven Hist. Society Papers, I, 1.
Wilford vs. Grant, Kirby (Conn.) 114.
Williston, S. Business Corporations before 1800. Harv. Law Rev., 2: 165.
Wilson, James. Law Lectures.
Winthrop, John. History of New England from 1630 to 1649. Boston, 1853.
AN HISTORICAL SURVEY OF ANCIENT ENGLISH STATUTES1
NO Complete and Authentic Edition of the Statutes has hitherto been undertaken by authority; nor has the design itself ever been suggested, simply, and without connection with other schemes of reformation or improvement.
A general revision of the statute law has been often reccommended from the throne; and has been petitioned for by both houses of Parliament; It has engaged the labours of successive committees, and has been undertaken by individuals sometimes with, and sometimes without, the sanction of royal or parliamentary authority; but has never yet been carried forward to any degree of maturity.
In Queen Elizabeth’s Reign ad 1557, Sir N. Bacon, Lord Keeper, drew up a short plan for reducing, ordering, and printing the Statutes of the Realm. The following are the heads of this plan:3 “First where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated.—Item, where there is but one lawe for one thing, that these lawes are to remain in case as statutes.—Item, where part of one acte standeth in force and another part abrogated, there should be no more printed but that that standeth in force.—The doing of these things maie be committed to the persons hereunder written, if it shall so please her Majesty and her Counsell, and daye wolde be given to the committees until the first daie of Michaelmas terme next coming for the doing of this, and then they are to declare their doings to be considered of by such persons as it shall please her Majesty to appoint.” Then follow lists of twenty committees of four each, in which the judges, sergeants, attorney and solicitor general, &c. are named; One judge, &c. and three counsel forming a committee, to each of which it was proposed that a title or division of the statute law shall be referred.
The subject was afterwards taken into consideration, so far as related to the penal laws, at subsequent periods in the reign of the same Queen, viz. Anno 27, ad 1585.1 —Anno 35, ad 1593.2 —Anno 39 & 40, ad 1597.3 —Anno 43, ad 1601.4 —In the proceedings in 1593 and 1597 Sir Francis Bacon took part, and upon them he appears to have founded his sketch, or plan of a general revisal of the statute law.5 —King James I., upon his accession to the throne of England, 1603-4, and in subsequent periods of his reign, recommended also to Parliament a reform of all the statute law and of the penal laws in particular.6
In the year 1610 a digest and repeal of the penal law was expressly stipulated for by the House of Commons, and acceded to by the House of Lords, in their joint transaction of the great contract with the Crown;7 and in the same reign Sir Francis Bacon, Lord C. J. Hobart, Serjeant Finch, Mr. Noy, and others, by the King’s command, made considerable progress in the general work of reforming and recompiling the statute law, which Lord Bacon describes8 as “an excellent undertaking, of honour to his Majesty’s times, and of good to all time;” and recommends, in imitation of the statutes of 27 Hen. VIII. c. 15, and 3 & 4 Edw. VI. c. 11, for appointing commissioners to examine and establish ecclesiastical laws, that commissioners be named by both houses for this purpose also, with power not to conclude, but only to prepare and propound the matter to Parliament.
In the British Museum is preserved a manuscript volume1 containing the plan of an elaborate report, particularizing the several statutes, from the statute of Westminster First, 3 Edw. I. to 7 Jac. I. 1609, then actually repealed or expired, and also the statutes thought fit either to be absolutely repealed, or to be repealed and new laws to be made in their place. Possibly this may be the very work spoken of by Sir Francis Bacon.2 It is drawn up as by authority, with detailed reasons for every proposed measure; but it is not signed by, or addressed to, any one. A table is subjoined to it, exhibiting the result of the report.
Among the papers of Mr. Petyt, in the inner Temple Library3 is a letter of Lord Bacon’s dated 27th, February 1608, which shews that he had the advantage of using for his proposed plan a manuscript collection of the statutes made with great labour by Mr. Michael Heneage, keeper of the Tower records, in five large volumes, which it is feared has been lost. Lord Bacon’s disgrace at the latter period of the reign of King James I. and the distractions of the Government in what related to Parliament, were probably the causes of the failure of these measures, and of the silence that ensues respecting them in parliamentary history.
During the usurpation, the same undertaking was resumed with ardor. In 1650, a Committee was named, one of the members whereof was Bulstrode Whitelock, then first Lord Commissioner for the Custody of the Great Seal: the purpose was “to revise all former statutes and ordinances, now in force and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a compendious way and exact method, for the more ease and clear understanding of the people.” And the committee were empowered “to advise with the judges and to send for and to employ and call to their assistance therein, any other persons whom they should think fit, for the better effecting thereof, and to prepare the same for the further consideration of the house, and to make report thereof.”1 But no such report has been preserved.
In 1651-2, Mathew Hale, Esq., afterwards Lord Chief Justice Hale, Sir Anthony Ashley Cooper, afterwards Lord Shaftesbury and Rushworth, the author of the historical collections, with other persons out of the House, were appointed to report to the committee their opinions upon the inconveniences of the law; and a revised system of the law was reported to the House in the course of the same year.2 The same labour was afterwards transferred to other hands, but the work was not abandoned; and in 1653, a committee was appointed to consider of a new model or body of the law.3 But of this committee no proceedings are now discoverable.
After the restoration, Finch, Solicitor General, afterwards Earl of Nottingham and Lord Chancellor, Serjeant Maynard, Sir Robert Atkins, Mr. Prynne and others, were appointed in 1666, to be a committee “to confer with such of the Lords, the Judges, and other persons of the long robe, who have already taken pains and made progress in perusing the statute laws; and to consider of repealing such former statute laws as they shall find necessary to be repealed; and of expedience for reducing all statute laws of one nature under such a method and head as may conduce to the more ready understanding and better execution of such laws.”4 This, however, was as ineffectual as any of the former measures; and it is the last recorded instance of the interference of Parliament on the subject, previous to those proceedings which gave rise to the commissions under the authority whereof the present work has been executed.
The earliest instance of the exertions of any individuals without the sanction of parliamentary authority, towards making a collection of statutes from authentic sources, appears to have been afforded by Pulton.—He was a learned barrister, of great age and experience, and was employed for several years in the consideration of the statute law. He published two useful books upon that subject; first, an abridgement of the penal statutes; and afterwards a calendar or abstract of all the statutes in use, chronologically arranged; together with an alphabetical abridgement of them, in the manner of Rastall’s collection. He appears to have been encouraged and assisted in his first work by Sir William Cordell, then Master of the Rolls, to whom it is dedicated; various editions of this were published from 1560 to 1577. His calendar, first published about 1606, is distinguished by the following expression in the title page, viz: “Editum per mandatum Domini Regis.” But nothing else, either in the book or elsewhere, has been found to confirm any marks of royal authority upon the contents of the book. After the publication of these works, without any public patronage or recommendation beyond the permission to use the records, he conceived the plan of copying from their original records, and printing for general use, all the statutes supposed to be in force.
This plan it will be useful to state at length: And this we are enabled to do by the preservation of the papers, containing his original scheme, among Sir Robert Cotton’s manuscripts in the British Museum.1 In one of these papers the design is set forth: it is indorsed, in a hand frequent among the Cottonian manuscripts, “concerning Mr. Pulton’s suite;” and has no other title, mark or description at the beginning or end; though by another article referring to it, there is proof of its date being in or previous to 1611. “Mr. Pulton seeketh to print the statutes at large. He promiseth to set down which statutes or parts of statutes are repealed, and which, being at the first but temporary, are since expired and void, because not revived. This he hath already done in his late abridgement, for which he had a recompense of the printer. Now, to make this new book at large saleable, he promiseth to print the statutes first in the language the same were first written; and such as were originally in French or Latin, he will translate and print likewise in English. Where the statute has no title, he will devise a title out of the body, and print it with the statute. He will set down which statutes are warranted by the record, and which not. He will correct the printed book by the record. For which purpose he requireth free access at all times to the records in the Tower. Being very aged, viz. almost four score, he desireth that for his ease and better enabling in his work, the keeper of the records within the Tower of London, may every day deliver unto him, when he shall so require, one Parliament Roll, to be by him and his clerk perused and viewed, in a lodging which he hath taken near unto the said office; the same afterwards to be redelivered by them to the said keeper thereof. That the clerk do help further, and assist him in this service by all the means he can.”
Several objections to the prosecution of this plan were made by Bowyer and Elsyng, keepers of the Tower records; among others, that they and their predecessors had actually prepared materials for the work in question, and that they then had ready written five volumes of statutes copied from the records. These were perhaps the volumes alluded to in Lord Bacon’s letter before mentioned.1 The dispute between the parties was continued for some time; but there remains among the Cottonian manuscripts2 a draft of an award for its determination by Sir Robert Cotton himself, to whom they referred their differences; and from a paper in the British Museum, among the manuscript of Mr. Madox,3 it appears that an order of Council passed on the 24th October, 1611, granting license to Pulton to have the use of the records in the manner asked. It recites that he undertook the work by persuasion of the judges and others learned in the laws, and requires the keepers of the records, on account of the importance of the work, and for the benefit of the learned, to assist and further him all they can.
Pulton lived to publish the proposed edition in 1618; which is the work already spoken of as Pulton’s English Statutes. In his preface, after noticing the redundancies of former editions, containing subsidy Acts and other Acts “expired, repealed, altered, and worn out of use,” and his intention to publish such only “which be now in life, force, and general use,” he gives the following statement of the means he had employed in compiling his collection.
“First, with as great means, care, and industry, as possibly I could use, so many of the old statutes heretofore printed in the English tongue, made and published in the reigns of the first ten kings (accounting from 9 of Hen. III. unto 1 Ric. III. inclusive) as be chiefly in use and practice, and which are the foundation of proceedings both legal and judicial, have been by me truly and sincerely examined by the original records thereof remaining in the Tower of London, and the residue with the Register of Writs, being the most antient book of the law, the old and new Natura Brevium, the Books of Entries, the Books of Years, and Terms of the Law; the best approved, printed, and written books; and by all such other circumstances, as might best give probability of truth unto the learned. By reason whereof, the aforesaid defects, imperfections, and emblemishments being reformed in this edition, as it is a collection of the most usual laws, gathered from out the Grand Codex of all the statutes, so it may serve as a correction to the former impressions.”
The defects of Pulton’s publication, as a general collection of statutes, are chiefly these: 1st. As to the statutes preceding Henry VII., it is a translation in English, and does not exhibit the text in the original language of the records, as might have been expected from his proposal: 2dly. Though it had the permission, it had not the authority of the king, by whom all acts of legislation are to be communicated to the subject; and was only the private work of an individual for his own benefit: 3dly. It is a partial selection of such statutes as in the judgment of the author, were fittest to appear in his book; their authority and use, whether in force or repealed, depending on his opinion: 4thly. It is not, nor does it purport to be, a correct and examined copy from the original records, of all those acts which are given at large; but of such only as the author thought necessary so to examine and correct: and it is left uncertain, which, and how many of them were taken from printed or written books. It has, therefore, though in a less degree, the same faults as all the collections and editions of statutes printed before; and it was particularly unfortunate that the author did not execute that part of his proposals which made their greatest merit, namely, the giving an accurate copy of the original text of the antient statutes from the record.
These objections are no less applicable to the editions by Hawkins and Cay, as falling short of the character of a complete and authentic collection of the statutes. They professed indeed to have copied their text from original records, or other manuscripts, in Latin and French; but by printing some statutes and parts of statutes, with a translation, and some without it, and giving only a translation of others, they have rendered their editions liable to still further objections, for which no subsequent editor has hitherto attempted to offer a remedy.
From the preceding statement, the necessity and use of an authentic publication of the statutes of the realm will appear: For, although the defects of all former collections have been long complained of by learned and eminent men, and although various propositions have been offered at different times, for an authentic publication of the statutes, none such has yet been executed. At length, however, a select committee, appointed by the House of Commons of Great Britain, in the year 1800, to enquire into the state of the public records of the kingdom, having reported upon this branch of the matters referred to their consideration, that in their opinion, it was “highly expedient for the honour of the nation, and the benefit of all his Majesty’s subjects, that a complete and authoritative edition of all the statutes should be published;” in pursuance of their recommendation the present work has been undertaken and executed; under the authority and direction of commissioners specially appointed by his Majesty to carry into effect the several measures which were by that committee recommended to the attention of Parliament.
Sect. I.—Of the Matters inserted in this Collection of the Statutes; and their Arrangement. Sect. II.—Of the Sources from whence the several Matters have been taken. Sect. III.—Of the Mode used in searching for, transcribing, collating, noting, and printing the Text of the Statutes.
Of the Matters inserted in this Collection of the Statutes; and their Arrangement.
1. All instruments whatever, comprehended in any of the several collections of the statutes printed previous to the edition of Hawkins, are inserted in this work; these having for a long series of years been referred to, and accepted as statutes in courts of law: together with these are inserted all matters of a public nature, purporting to be statutes, first printed by Hawkins or any subsequent editor; and also new matters of the like nature, contained in any Statute Rolls, inrollments of Acts, exemplifications, transcripts by writ and original Acts, although not heretofore printed in any general collection of statutes. All these are placed in the body of the work as text. But it is to be particularly observed, that any decision upon the degree of authority to which any new instrument may be entitled, as being a statute or not, is entirely disclaimed.
2. Other matters of a parliamentary form and character have been recognized at different periods of our history, as appearing to have legislative authority. It has been observed by Lord Coke, that “Acts of Parliament are many times in the form of charters or letters patent;”1 and many such have been inserted in all editions of the statutes: and that there are “many acts of Parliament that be in the rolls of Parliament and never yet printed:”2 In the report also of the select committee of the House of Commons, in the year 1800, upon the subject of the public records, it is stated, that many statutes and ordinances in the rolls of Parliament are not inserted in the printed statute book; and it is certain that many Acts and matters not found on any statute roll, nor contained in any printed edition of the statutes, are found on the Parliament Rolls, which appeared to have received the threefold assent of King, Lords, and Commons, or to have such qualities, as have been allowed by courts of law to imply that assent.3
With a view therefore to a consideration of the question, whether matters of this nature should be comprehended in the present work, lists of a great number of them were prepared, not only from the Parliament Rolls, but also from other records, particularly the Close Rolls and Patent Rolls, which were examined for the purpose with great care and diligence, and transcripts and collations of many of them were made for the examination of the Commissioners. In the progress of this labour, however, it appeared that the matters which came within the description above mentioned, were so numerous, that the indiscriminate insertion of all of them would constitute a mass, the very bulk of which would prove inconvenient. But, what was of still greater importance, upon examination, it became with respect to many of them, a subject of discussion, from which no certain conclusion could be derived, to what extent they had in fact received sanction, and whether therefore they were, in any degree, entitled to be considered as of legislative authority.1 It was obvious, at the same time, that to have made a selection only of such matters as in the opinion of the commissioners were the least doubtful, was in effect encountering the same difficulty only in a smaller degree; and the sources, from which they were to be taken, not being in themselves conclusive evidence,2 that the matters contained in them were statutes, the selection in each instance necessarily could be nothing more than the result of private judgment; without the authority of that “general received tradition,” which, as Lord Hale observes,3 attests and approves those statutes which are not properly extant of record.
Acts also which received the royal assent, and which were entered only on the Parliament Roll, and not on the Statute Roll, have been frequently termed Ordinances; and various distinctions have ineffectually been attempted to be made between an ordinance and a statute, with regard to the nature and validity of each respectively:4 but whatever has at any time been written on this subject, is contradictory and indistinct; and in the reign of Charles I., the information on this point, then of some importance, appears to have been very unsatisfactory.5
From these considerations therefore, upon mature deliberation, it has been deemed advisable that this collection should include all such instruments as have been inserted in any general collection of statutes printed previously to the edition by Hawkins; with the addition, only, of such matters of a public nature, purporting to be statutes, as were first introduced by him or subsequent editors, and of such other new matters of the like nature, as could be taken from sources of authority not to be controverted; namely, Statute Rolls, inrollments of Acts, exemplification, transcripts by writ, and original Acts.
In the 31st year of Henry VIII. the distinction between Public Acts and Private Acts is for the first time specifically stated on the enrollment in Chancery. No private Acts passed after that date have been admitted into this collection: It has been thought sufficient to notice them, by the insertion of their titles only.
Of the Sources from whence the several Matters have been taken.
1. The sources from which the materials have been taken for this collection, are necessarily of a different character and description in different periods of our history.
The earliest statutes contained in the several collections are those of Henry III.; but no parliamentary record of statutes is now known to be extant, prior to the Statute Roll 6, Edw. I. To this interval nevertheless belong the statutes of Merton, Marlborough, Westminster the First, and several others, always included in the printed editions. For this early period, therefore, recourse must be had to inferior sources for the text of our statute law: and even in subsequent times, there is not only an interruption in the series of Statute Rolls, namely, after 8 Hen. VI., until 23 Hen. VI., inclusive, during which the like recourse must be had to sources of an inferior degree of authority; but the Statute Rolls themselves do not, within their own period, contain all the instruments which have been acknowledged as statutes. After 8 Edw. IV. the Statute Roll is not preserved; after 4 Hen. VII. it ceased to be made up; and ultimately it was succeeded, for practical purposes by the enrollment in chancery; though during a short period the Statute Roll and the enrollment appear to have been contemporary.
The materials for the several periods during which no Statute Rolls or parliamentary records exist, can only be collected from records on which copies or extracts of statutes have been entered; or from other manuscripts not on record; or, in default of other authority, from the oldest printed editions in which such matters were first inserted. With respect to entries of record, in these periods, that has been judged to be the most authentic evidence of a statute, which has been preserved as a record or authentic copy from antient times, in the custody of the highest courts authorized for that purpose. Such are copies or extracts of particular statutes found in the Close, Patent, Fine, and Charter Rolls, being records of chancery. Such also are the Red Books of the Exchequer of Westminster, and Dublin. On failure of these records, recourse has, of necessity, been had to manuscripts not of record preserved in the custody of courts of justice, public libraries, or other public repositories. Such are some antient books of statutes in the exchequer at Westminster, in the town clerk’s office, London, in the several cathedrals, in the public and other libraries of the several universities of Oxford, Cambridge, and Dublin, and in the British Museum: When all these sources have proved deficient, and in such case only, a copy has been admitted, from the oldest printed edition, with various readings from subsequent printed editions.
During the periods in which Statute Rolls or other parliamentary records do actually exist, the authentic evidence of statutes (and of other proceedings in Parliament, before the commencement of the journals,) must be searched for upon the Statute Rolls; Inrollments of Acts; exemplifications of such Statute Rolls or enrollments; transcripts by writ into chancery for the purpose of such exemplifications; original Acts; and Rolls of Parliament.—These are the only authentic sources from whence, during those periods, a knowledge can be obtained of the different occurrences in Parliament, whether important or minute. With the exception of some rolls containing proceedings in Parliament from 18 to 35 Edw. I., which are in the Chapter House at Westminster, such of the original Statute Rolls, inrollments of Acts, and Parliament Rolls, as are still preserved, are deposited in the Tower of London, or at the Chapel of the Rolls, places appropriated to the custody of the records of the King’s chancery, which has ever been deemed the proper repository of the statutes of the Kingdom.
II. The Nature and qualities of the several records and manuscripts from whence all the statutes, as well those of an earlier as of a later period, have been taken for insertion or collation in this work, and the place where such original record and manuscript is kept, will more fully appear from the following detail.
1. Statute Rolls.—These are records of chancery, of the highest authority, on which were entered the several statutes, when drawn up in form, for the purpose of being proclaimed and published; these statutes being framed upon such original petitions and answers, or entries thereof on the Parliament Rolls, as related to public concerns. The earliest Statute Roll now known to exist, is that which commences with the statute of Gloucester, 6 Edw. I. ad 1278. From that period to 8 Edw. IV. inclusive, ad 1468, with an interruption after 8 Hen. VI. until 23 Hen. VI. inclusive, the statutes are preserved in the Tower of London in a regular series, on 6 separate rolls, each roll consisting of several membranes tacked together. The contents of each roll are as follows, viz:
Of the Great Roll; statutes from 6 Edw. I. to 50 Edw. III. But this roll does not contain all the statutes which have been printed as of that period.1
Second Roll; statutes temp. Ric. II. there is also a separate roll, of one membrane, containing a duplicate of the statutes 21 Ric. II.
Third Roll; statutes temp. Hen. IV. and V.
Fourth Roll; statutes 1 Hen. VI. to 8 Hen. VI.
Fifth Roll; Statutes 25 Hen. VI. to 39 Hen. VI.
Sixth Roll; Statutes 1 Edw. IV. to 8 Edw. IV. This is the last Statute Roll now known to exist, none of a later date having been found.
These have ever had the reputation annexed to them of being Statute Rolls. Some of them are cited by that name upon the Close and Patent Rolls; and referred to by great law writers, Lord Coke, Lord Hale, and the editors of statutes, Pulton, Hawkins, Cay, &c. There is evidence also that Statute Rolls have existed of a subsequent time; for the statutes after 8 Edward IV., until 4 Henry VII. inclusive, are inserted in the early printed editions in a form manifestly copied from complete Statute Rolls; and they are found in the like form in Lib. XI. in the exchequer at Westminster, MS. Cott. Nero C. I., in the British Museum, and in several other manuscript collections. But there is reason to conclude, that the making up of the Statute Roll entirely ceased with the session 4 Hen. VII., as no such roll of a later date, nor any evidence thereof, has been discovered; and it is observable that in the next session, 7 Hen. VII., public Acts were, for the first time, printed from the several bills passed in Parliament, and not as part of one general statute drawn up in the antient form.
2. Inrollments of Acts of Parliament.—These are records containing the acts of Parliament certified and delivered into chancery. They are preserved in the Chapel of the Rolls, in an uninterrupted series from 1 Ric. III. to the present time; except only during the Usurpation. By the officers of chancery they are commonly termed “Parliament Rolls;” and they are variously endorsed, some with the Phrase “Inrollments of Acts.” From 1 Ric. III. to 3 Car. 1. inclusive, they comprehend several other proceedings of Parliament besides the Acts enrolled; (sometimes for instance, the commissions for giving the royal assent to bills are found entered on them;1 ) thus partaking of the qualities of rolls of Parliament, and including nearly the same contents: until, the miscellaneous matters disappearing by degrees, the Acts inrolled only occur: After 5 Hen. VII. they may be considered in effect, as coming in the place of the Statute Roll. To 25 Hen. VIII. they contain all Acts, public and private, which were passed in every session, each with an introductory and concluding form of their being presented and assented to: From 25 Hen. VIII., to 35 Eliz. several of the private Acts, and afterwards to 3 Car. 1. all the private Acts, are omitted, their titles only being noticed. From 16 Car. 1. to 31 George II., the inrollments contain nothing but public Acts, and the title of the private Acts, with the several forms of assent, without any other parliamentary matter. And from 32 George II. their contents are the same, with the omission of the titles of the private Acts.
At present, after all the public-general Acts of the session have received the royal assent, a transcript of the whole is certified by the clerk of the Parliaments, and deposited in the Rolls Chapel: On that occasion the clerk of the Parliaments sends the roll, or rolls, containing such transcript, apparently in a complete state, engrossed on parchment, signed, and certified by him as clerk of the Parliaments; and it is thereupon arranged with the other records; and thus becomes the inrollment of the statutes of that session of Parliament. For this transcript the clerk of the Parliaments is paid every session out of the Hanaper, on a receipt by the clerk of the records in the Rolls Chapel, stating that the roll is delivered there.
It may be further observed upon this subject, that the proceedings which took place in the House of Lords in Ireland in 1758, for the better preservation of the records of Parliament in that kingdom, where the constitution and law of Parliament were in all essential points conformable to those of England, afford a strong illustration of the practice of certifying statutes and recording them in chancery.1
3. Exemplifications; and transcripts by writ.—Exemplifications are copies sent out of chancery under the King’s seal; either to sheriffs of counties and cities in England, or to the Chancellor or Chief-Justice of Ireland, or to other courts or places, for the safe custody and for the proclaiming and confirming of the statute; or in other cases for affording authentic evidence of the statute. In the Tower of London, copies of the statutes 9, 10, 11, 14, 15, 18 and 20 Hen. VI. (for some years to the number of two, three, six, or seven copies) are preserved on separate skins of parchment, which appear to have been prepared as exemplifications, for the purpose of proclaiming the several statutes; and these serve to supply the deficiency of the Statute Roll during that period. One similar copy of the statutes 13 Ric. II. is also preserved in the Tower.
It is not irrelevant to remark, that an exemplification differs from an original grant under the great seal, or an original act of Parliament, in this; that an exemplification is a copy, and can be made only from the record. At the present day every exemplification, being first made out in form by the proper officer, is examined with the record by two masters in chancery, who not only subscribe a certificate on the exemplification, of their having examined it with the record, but also sign a certificate to that effect, addressed to the Lord Chancellor, on a paper called “The Docket,” which is left with him before the exemplification is allowed to pass the Great Seal.
Transcripts by writ were copies sent into chancery in answer to the King’s writ or mandate, calling for a copy of the statute from the officer in whose custody it was preserved. A transcript of the statutes of Wales, 12 Edw. I. is preserved in the Tower of London, with the writ annexed, by which that transcript was required from the exchequer at Westminster, where it was entered of record, according to the usage which formerly prevailed of sometimes inrolling statutes in courts of justice. Transcripts and exemplifications of statutes have also been occasionally found in various other depositories.
4. Original acts.—These, from the 12th year of Henry VII. to the present time, with some interruption, particularly in 14 & 15 Hen. VIII. are preserved in the Parliament office. Some petitions and bills previous to 12 Hen. VII. are in the Tower of London, but in no regular series. The original Acts in the Parliament office consist of the bills as ingrossed after being brought into Parliament, and in the state in which, after such ingrossment they passed both Houses, and received the royal assent. Each Act is on a separate roll numbered; and reference is made to them from a calendar kept of the Acts of each session in the Parliament office. These are the materials from which the clerk of the Parliaments makes up the inrollments of public Acts sent by him into chancery and preserved there; or certifies Acts into chancery, when required so to do.
As to the comparative authority of the original Acts and the inrollments in chancery, it is to be observed, that all the original Acts are separate from each other; and that they are frequently interlined, defaced, erased, and in many instances, with great difficulty intelligible: the inrollment in chancery is always fair and distinct; and the Acts are entered in a regular series, on one roll or subsequent rolls, as part of the proceedings of a Parliament, the time of the holding of which is stated at the beginning of the roll. In modern practice, if any doubt arises as to the correctness of the inrollment in chancery, application is made to the clerk of the Parliaments; and the original Act is thereupon produced, and compared with the inrollment, and an amendment, if requisite, is made in the inrollment accordingly.
5. Rolls of Parliament.—These contain entries of the several transactions in Parliament; when complete they include the adjournments, and all of the common and daily occurrences and proceedings from the opening to the close of each Parliament, with the several petitions or bills, and the answers given thereto, not only on public matters, on which the statute was afterwards framed, but also on private concerns. In some few instances the statute as drawn up in form is entered on the Parliament Roll; but in general the petition and answer only, are found entered; and in such case the entry of itself furnishes no certain evidence, that the petition and answer were at any time put into the form of a statute.1
Copies of petitions in Parliament and answers thereto, as early as 6 Edw. I. and in various years of Edw. II. and Edw. III. are among Lord Hale’s manuscripts in the library of Lincoln’s Inn. Rolls containing pleas, petitions and answers, and other proceedings in Parliament, from 18 to 35 Edw. I. and one of the petitions in Parliament 7 Hen. V., are in the Chapter House at Westminster. A book of inrollment, called Vetus Codex, in which are entered proceedings in Parliament, from 18 Edw. I. to 35 Edw. I. and in 14 Edw. II. is in the Tower of London.2 In that repository also are preserved rolls containing pleas and other proceedings in Parliament, between 5 Edw. II. and 13 Edw. III.; rolls of Parliament of 9 Edw. II.; 4, 5, and 6 Edw. III.; and 13 Edw. III.; and from thence, to the end of the reign of Edw. IV., in a regular and nearly uninterrupted series. After that time the rolls of Parliament are for a certain period supplied by the inrollments of Acts preserved in the Chapel of the Rolls, and finally by the journals of the two Houses of Parliament.3
6. The Close, Patent, Fine, and Charter rolls, among a variety of grants, recognisances, and other miscellaneous matters, concerning the state of the realm, and the rights of the Crown, recorded in them, include entries of statutes, and some instruments having direct reference to statutes wherein such statutes are recited at length. These rolls are kept at the Tower, from the beginning of the reign of King John to 22 Edw. IV., and from the reign of Edw. V., to the present time at the Chapel of the Rolls.
7. Books of record, containing entries of statutes and parliamentary proceedings.—Of this sort is, the Red Book of the Exchequer of Westminster, some of the early part of which was compiled by Alexander de Swereford, first a clerk and afterwards a baron of the exchequer, in the reign of Henry III. It seems afterwards to have been considered and used as an authorized repository by the court itself; and contains entries and inrollments of many charters and antient acts of Parliament, as well as other instruments relating to the King and the rights of the Crown, from the time of William the Conqueror to the end of Edw. III.: the originals of several of these Acts and instruments are preserved in the Tower of London, and in the Chapter House at Westminster, with references to inrollments in this book, or to the circumstance of the Act being sent into the exchequer. The Red Book of the Exchequer at Dublin is considered as of the same authority: it contains entries of Magna Carta, 1 Hen. III. especially granted to the people of Ireland; of the Statute of Westminster the first, 3 Edw. I. (which is not to be found on the Great Roll of statutes in the Tower of London, being prior in date to the present commencement of that roll,) and also of the Statutes of Gloucester, 6 Edw. I. de Viris Religiosis, 7 Edw. I., and Westminster the second, 13 Edw. I., agreeing in general to the text of those statutes on the Statute Roll in the Tower. There is reason to conclude that these statutes were entered in the Red Book at Dublin, from an exemplification sent over from England in the 13th year of Edw. I., as is noticed in a memorandum on the Close Roll of that year. A register book marked “A” preserved at the Chapel House at Westminster, as in the custody of the treasurer and chamberlains of the exchequer, contains entries or inrollments made in the time of Edw. I. Among these are the Statute of Gloucester, 6 Edw. I., and the Statute of Westminster the second, 13 Edw. I. The originals of the several statutes and instruments, it is stated in the register, were deposited in certain chests in the Chapter House; but these originals had not been discovered.
8. Books and manuscripts not of record, containing entries or copies of statutes, are very numerous. In the court of exchequer at Westminster, are three books, marked IX., X., XI. Book X. contains many of the earlier statutes previous to Edw. III.: Books IX., XI. contain the statutes from 1 Edw. III. to 7 Hen. VIII.
In the town clerk’s office, at the Guild Hall of the city of London, are several manuscript volumes; in which, among other matters chiefly relating to the laws and customs of the city of London, are entries of many of the antient statutes previous to Edw. III. The greatest number, and the earliest copies are in two volumes, distinguished by the appellations Liber Horn, and Liber Custumarum. It appears from internal evidence that Liber Horn was compiled about the year 1311, and Liber Custumarum not long after the year 1320: Liber Horn is rendered valuable by having been in many instances corrected, in a later hand writing, from exemplifications of statutes sent under seal to the sheriffs of London. In two other manuscripts one called Liber de Antiquis Legibus and the other Transcriptum Libri Albi, copied from a volume originally compiled in the mayoralty of Richard Whityngton ad 1419, 7 Hen. V., are occasional entries of a few antient statutes. In other volumes marked G. H. and I. are entries of some of the statutes of Edw. III., Richard II., Henry IV., and Henry V.; many of them appearing to have been made from exemplifications sent to the sheriffs of London for proclamation.
Of manuscript collections of statutes, preserved in public repositories, the greatest number collected together in any one place, is to be found in the British Museum. They are distinguished as being of the Cottonian or Harleian Collection; from the royal library; Donation manuscripts; and Lansdowne manuscripts. The Cottonian manuscripts Claudius D. II. and Vespasian B. VII. were resorted to by Hawkins and Cay, for copies of statutes previous to Edw. III.; and Nero C. I. for statutes of Henry VI. and Edw. IV. not found at the Tower.
In the Bodleian library at Oxford, are Rawlinson’s, Hatton’s, and Laud’s manuscripts. Among the latter is a roll of statutes, No. 1036, consisting of eleven small membranes of parchment united together; not much more than four inches wide; but each being two feet or more in length. This roll appears to have been written in the time of Edw. I.: it contains no statute later than the Articuli Super Cartas, 28 Edw. I.
At Cambridge several manuscript collections of statutes are preserved in the library of the University and in Trinity College Library. In Corpus Christi or Bene’t College Library are the manuscripts bequeathed to the College by Archbishop Parker.
Chartularies or registers, preserved in several cathedrals, contain copies of some of the old statutes. Such are the Black Book of the cathedral of Christ Church, Dublin, written between the years 1280 and 1299, and register A in Gloucester cathedral, compiled in 1397.
In Lincoln’s Inn Library, are Lord Hale’s manuscript copies of rolls and petitions in Parliament: in the Inner Temple Library, Mr. Petyt’s collection of manuscripts among which are several volumes of the statutes. In many other public libraries also manuscript collections of statutes are preserved.
Of the several manuscripts not of record, an extensive and careful examination has been made in preparing for the present edition: and it has been ascertained that, although they differ from each other considerably in their degrees of antiquity and correctness, yet the credit of no single one is entirely to be relied on; for scarcely any manuscript has yet been discovered, in any repository, in which there are not some material errors perverting or altogether destroying the sense of the text. In some instances, however, such as Cott. Claud. D II. in the British Museum, and M m. v. 19, in the library of the University of Cambridge, several of the instruments contained in the manuscripts purport to be examined by the roll. In Liber Horn, in the town clerk’s office, London, several are marked as examined ‘per Ceram;’ ‘per Ceram Gildaule;’ ‘per Statutum Gildaule London in Cera;’ ‘cum brevi cum eisdem in Gildaula adjunct’; all which signify that the entry in the book has been examined with an exemplification of the statute or instrument under the Great Seal, sent to the mayor and sheriffs of London with or without a writ for publication thereof. The Rawlinson Manuscript No. 337 in the Bodleian Library at Oxford, and the Harleian Manuscript No. 5022 in the British Museum, refer to the inrollment on the Statute Roll, of several articles inserted in those volumes, but do not profess that the articles themselves were examined by that roll.
III. On a mature consideration of all the circumstances before stated, the following Rules of Preference have been adhered to, in the use of the several sources for the text, and for various readings of the statutes, in the present collection.
During the periods in which Statute Rolls exist, such Statute Rolls have been considered and used as the highest authority for the statutes contained in them: namely, the statutes 6 Edw. I. to 8 Edw. IV.; with the omission of the statutes 9 to 23 Hen. VI. both inclusive.
But for such statutes as, during the period of the existence of the Statute Rolls, do not appear on those rolls; and for statutes made in any period of which the Statute Roll is not now in existence namely, previous to 6 Edw. I.; after 8 and before 25 Hen. VI.; and after 8 Edw. IV.; and also for the correction of manifest errors or omissions in the text, whether taken from Statute Rolls or elsewhere the following sources have been recurred to in regular gradation; preference being given to them according to the following order, but all being used and collated, where necessary: viz. 1. Inrollments of Acts.—2. Exemplifications and transcripts.—3. Original Acts.—4. Rolls of Parliament.—5. Close Patent, Fine and Charter rolls.—6. Entries and books of record.—7. Books and manuscripts not of record.—And finally, 8. The printed copies; the earliest of which was not published until more than 200 years subsequent to the present commencement of the Statute Rolls.
The following reasons for preference among manuscripts not of record have been adopted: 1. Their professing to be authentic copies from any records, exemplifications, or transcripts: 2. Their age; the oldest being on the whole the most worthy of credit: 3. The uniformity and regularity of the series of statutes, and instruments in each collection: 4. Their having been already printed and received in use, as evidence of the text of statutes; or, if not so printed, their according with the printed copies, and with each other, so that when the manuscripts differ, the majority should prevail: 5. Certain manuscripts have been holden to be of superior authority upon some particular subjects, having special connection with the places in which they are preserved: Such as the books preserved in the exchequer, for statutes relating to that court, or to accounts, or to money; books at the town clerk’s office, London, relating to the assises of bread and ale, weights, and measures, &c: 6. In all manuscripts some articles are found much more correct than others; a judgment has therefore frequently been formed from internal evidence in favour of a particular statute or reading, although the manuscript in which such statute or reading were found, might not, in other instances, be entitled to preference: 7. Where it has happened that several manuscripts agreed in the text or reading of any instrument, and were so equal in their claims for preference, that it was entirely matter of indifference which should be chosen for a source of extract or quotation, that manuscript has been used which has been quoted or extracted from for other purposes, in preference to one not before quoted; and one which has already been printed from, in preference to one which has not.
Of the Original Language of the Charters and Statutes.
The language of the charters and statutes, from the period of the earliest charter now given, 1 Henry I. to the beginning of the reign of Henry VII. is Latin or French. From that time it has been uniformly English. The petitions or bills on which the statutes were founded, began to be generally in English early in the reign of Hen. VI.
All the Charters of Liberties, and of the Forest, from 1 Hen. I. to 29 Edw. I. (with the exception after mentioned), are in Latin; but translations of some of them into French, are found in various collections. In D’Achery’s Spicilegium1 there is a French translation, as it is called by Blackstone, of the Charter of King John; for it is doubtful whether that charter was ever promulgated in French in this kingdom. Some early manuscripts2 contain French translations of the two charters of 9 Hen. III., and of the Charters of Inspeximus and Confirmation in 25 and 28 Edward I., though these latter appear on the Statute and Charter Rolls in Latin. The charter dated 5 Nov. 25 Edw. I.3 is in French: as is also the duplicate of that charter dated 10 Oct. and entered on the Statute Roll 25 Edw. I.4
The statutes of Henry VIII. are almost entirely in Latin. Some legislative matters, not in the printed collections, are entered on the Patent Rolls in French.5
The statutes of Edward I. are indiscriminately in Latin or French; though the former language is most prevalent. But the Statute of Gloucester 6 Edward I. which on the Statute Roll is in French, appears in many contemporary manuscripts in Latin. In several manuscripts, particularly Register A. in the Chapter House at Westminster, this statute is given at length both in Latin and French. On the other hand the statute of Westminster the second, 13 Edw. I., which is in Latin on the roll, appears in many manuscripts in French; and Chapter 34 of this latter statute, as to violence against women, which on the roll appears in French, is given, like the rest of the statute, in Latin, in several manuscripts.1 The French Chapter, 49, as to champerty by Justices, is omitted in the Tower Roll, and in many other copies, which give the statutes in Latin, but is found in the copies which give the statute in French.2
The statutes of Edward II. are, like those of Edward I., indiscriminately in Latin or French: but the latter language prevails more than in the statutes of Edward I.
The statutes of Edward III. are more generally in French than those of any preceding king: yet some few are in Latin. The statutes of Richard II. are almost universally in French; those of the sixth and eighth years are in Latin. The statutes of Henry IV., with the exception of chapter 15 of the statute 2 Hen. IV. which is in Latin, are entirely in French; as are those of Henry V., with the exception of the short statutes 5 and 7 Henry V. which appear in Latin.
The earliest instance recorded of the use of the English language in any parliamentary proceeding, is in 36 Edw. III. The style of the roll of that year is in French as usual, but it is expressly stated that the causes of summoning the Parliament were declared “en Englois,”3 and the like circumstance is noted in 37 and 38 Edw. III.4 In the fifth year of Richard II.,5 the Chancellor is stated to have made ‘un bone collacion en Engley’s (introductory, as was then sometimes the usage, to the commencement of business) though he made use of the common French form for opening the Parliament. A petition from the “Folk of the Mercerye of London,” in the 10th year of the same reign,6 is in English; and it appears also, that in the 17th year1 the Earl of Arundel asked pardon of the Duke of Lancaster by the award of the King and Lords, in their presence in Parliament, in a form of English words. The cession and renunciation of the Crown by Richard II. is stated to have been read before the estates of the realm and the people in Westminster Hall, first in Latin and afterwards in English, but it is entered on the Parliament Roll only in Latin.2 And the challenge of the Crown by Henry IV. with his thanks after the allowance of his title, in the same assembly, are recorded in English; which is termed his maternal tongue.3 So also is the speech of Sir William Thirnyng, the Chief Justice of the Common Pleas, to the late King Richard, announcing to him the sentence of his deposition, and the yielding up, on the part of the people, of their fealty and allegiance. In the sixth year of the reign of Henry IV.4 an English answer is given to a petition of the commons, touching a proposed resumption of certain grants of the Crown, to the intent the King might the better live of his own. The English language afterwards appears occasionally, through the reigns of Henry IV. and V.5
In the first and second, and subsequent years of Hen. VI. the petitions or bills, and in many cases the answers also, on which the statutes were afterwards framed, are found frequently in English; but the statutes are entered on the roll in French or Latin. From the 23rd year of Hen. VI. these petition or bills are almost universally in English, as is also sometimes the form of the royal assent: but the statute continued to be inrolled in French or Latin.6 Sometimes Latin and French are used in the same statute, as in 8 Hen. VI.; 27 Henry VI.; and 39 Henry VI. The last statute wholly in Latin on record is 33 Henry VI.; the last portion of any statute in Latin is 39 Henry VI.; chapter 2.
The statutes of Edward IV. are entirely in French. The statutes of Richard III. are in many manuscripts in French, in a complete statute form; and they are so printed in his reign and that of his successor. In the earlier English editions a translation was inserted, in the same form: but in several editions, since 1618, they have been printed in English, in a different form, agreeing, so far as relates to the Acts printed, with the inrollment in chancery at the Chapel of the Rolls. The petitions and bills in Parliament, during these two reigns, are all in English.
The statutes of Henry VII. have always, it is believed, been published in English; but there are manuscripts containing the statutes of the first two Parliaments, in his first and third year, in French.1 From the fourth year to the end of his reign, and from thence to the present time, they are universally in English.
Attempts have been made by many learned persons to explain this variety of languages in the earlier periods of our legislation; and some have referred the preference of the one language or of the other, to the operation of particular causes.2 Nothing, however, is known with certainty on this subject; and at the present day it is utterly impossible to account, in each instance, for the appearance of the statute in French or in Latin. It seems on the whole to be highly probable that for a long period of time, charters, statutes, and other public instruments were drawn up indiscriminately in French or Latin, and generally translated from one of those languages into the other,1 before the promulgation of them, which in many instances appears to have been made at the same time in both languages.2
It is matter of curiosity to observe, that the use of the French language in statutes was preserved rather longer in Ireland than in England. The Statute Roll of the Irish Parliament, 8 Hen. VII., preserved at the rolls office in Dublin, is in French; on the Statute Roll of the two next Parliaments of Ireland, 16 and 23 Hen. VII., the introductory paragraphs stating the holding of the Parliament, &c. are in Latin; after which follows an Act or chapter in French, confirming the liberties of the church and the land: and all the other Acts of the session are in English.
Of the Methods Successively Adopted for Promulgating the Statutes, Before and Since the Union of Great Britain and Ireland.
The Promulgation of the Statutes, which formerly took place within the realm of England, as well as in Scotland and Ireland, has been wholly superseded by the practice of modern times. Before the introduction of printing, the publication of the statutes of England was made by means of exemplifications thereof, sent to the sheriffs, under the Great Seal, out of chancery, with writs annexed, requiring the proclamation and publication of the same by them,3 and sometimes also directing copies to be made and distributed, and the sheriffs to return what was done by them thereupon. The earliest statutes were published in this manner; as appears not only by copies of the writs subjoined to the records and manuscripts of the respective statutes, of the thirteenth century, but also by original writs still preserved in the Tower of London.
In England printed promulgations of the statutes, in the form of sessional publications, began in the first year of Ric. III. ad 1484, very recently after the introduction of printing; and in consequence thereof, such exemplifications and writs as are above mentioned, were soon altogether discontinued;1 yet the statutes themselves, continued nevertheless to be inrolled in chancery; and some of the earliest sessional publications appear by their form to have been printed from a Statute Roll. All the original bills and Acts now extant in the Parliament office, are some years subsequent in date to the commencement of the printed sessional publications of the statutes; and it is evident, from some of those printed sessional publications in the time of Hen. VII. whereof the contemporary bills and Acts are still preserved, that such bills and Acts, though concurrent in time were not then uniformly used as the original text for such publications. The sessional publications are at present, and have for a long series of years been printed entirely from original Acts in the Parliament office.2
In Scotland it was the exclusive privilege and official duty of the Lord Clerk Register to enter the acts of Parliament in the proper record, and to give authentic copies of them to the sheriffs, magistrates of boroughs, and such as might demand them. A precept is extant for proclaiming and publishing the statutes of Robert I. in the year 1318; and there exists also a parliamentary ordinance made in the reign of David II., 1366, by which the Acts of that Parliament are directed to be sent under royal seal to each sheriff to be by him publicly proclaimed. The earliest printed publication of statutes in Scotland took place in the year 1540-1.
In Ireland the promulgation of such statutes as were passed in England and transmitted to Ireland, was regularly made by means of a transcript sent under seal from England, with a writ directed to the Chancellor of Ireland, requiring the same to be kept in the chancery of that Kingdom, to be enrolled in the rolls of the said chancery, then to be exemplified under the Great Seal of Ireland, and sent unto and proclaimed in the several courts and counties throughout the kingdom. Sometimes the writ was to the justices, in Ireland, simply requiring proclamation.
With respect to the statutes made in Ireland, provisions are contained in several Acts for the special proclamation of such Acts, so that the penalties inflicted by them should not be incurred until after such proclamation.1 It appears also that it was usual to proclaim the statutes in general by the king’s writ, made out by the clerk of the Parliament. Sessional publications of the acts did not take place in Ireland before the reign of Charles I.; and such publications were not continued regularly and uniformly until after the Revolution.
In Great Britain the public inconvenience experienced from the defective promulgation of the statutes, led to the adoption of new measures in the year 1796; by which, the Acts printed by the King’s printer, whose authority had been long deemed sufficient to entitle his printed copies to be received in evidence, in all courts of law,2 were distributed throughout the kingdom as speedily as possible after they had received the royal assent: and the experience of the good effects of those measures led soon afterwards to their execution in a much greater extent.
After The Union of Great Britain and Ireland, a select committee of the House of Commons was appointed in the first session of the United Parliament, to consider of the most effectual means of promulgating the statutes of the United Kingdom; upon whose report resolutions for that purpose were adopted by the Commons, and having been agreed to by the Lords, they were presented to his Majesty by a joint address of both Houses; and his Majesty was thereupon pleased to give directions accordingly.
By the tenor of these resolutions, his Majesty’s printer was authorized and directed to print not less than five thousand five hundred copies of every public general Act, and three hundred copies of such local and personal Act as were printed; the public general Acts to be transmitted as soon as possible after each bill should receive the royal assent, to the members of both houses of Parliament, the great officers and departments of state, public libraries, courts of justice, sheriffs, municipal magistrates, and resident acting justices of the peace, throughout Great Britain and Ireland; according to a prescribed mode of distribution; with a direction that every chief magistrate and head officer of every city, borough, or town corporate in England and Ireland, and of every royal burgh in Scotland, and every sheriff, clerk of the peace, and town clerk in the United Kingdom, receiving such copies should preserve them for the public use, and transmit them to his successor in office: and this mode of authenticating and promulgating the statutes is now carried into execution, throughout every part of the United Kingdom.
[1 ]This essay appeared under the title “Ueberblick über die Geschichte der franzosischen, normannischen, und englischen Rechtsquellen,” in Prof. Dr. Franz von Holtzendorff’s “Encyclopadie der Rechtswissenschaft,” 3d ed., 1877, pp. 229-267, Part II., § 4 (Leipzig: Duncker & Humblot); in the 4th edition (1882, pp. 277-317) and the 5th edition (1890, pp. 303-347) the article was reprinted, but in the 6th edition (1904), it was omitted. The author has revised, enlarged, and recast it for the present volume of Essays, omitting the portions dealing with French and Norman sources.
[2 ]Professor of Legal History in the University of Berlin, since 1873. Privatdozent in the University of Lemberg (Lvov), 1865; assistant professor in the same, 1866; professor in the same, 1868; professor in the University of Prague, 1870; in the University of Strassburg, 1872; member of the Prussian Royal Academy of Sciences; one of the Editorial Commission for the Monumenta Germaniae Historica.
[1 ]Linguistic and legal history distinguish East and West Teutons. The former include the Gothic-Vandal nations and the Scandinavian (North Teutonic) peoples. West Teutons are the Germans including the Frisians and the emigrated tribes out of which the Anglo-Saxon people arose (Ingvaeonian Saxons, Angles, and the West Teutonic Jutes who are regarded as the ancestors of the Kentians).
[2 ]In legal historical writings the word witenagemot (concilium sapientum) has become the technical term for these assemblies. It is found in the Saxon chronicle, but nowhere in the Anglo-Saxon laws.
[1 ]Wergild is a sum of money payable as penalty for homicide.
[2 ]The Textus Roffensis, written about 1120, and going back for Kentish sources to an edition originating about 1020. See Liebermann, Notes on the Textus Roffensis, 1898 (reprinted from “Archaeologia Cantiana”).
[1 ]Leges Henrici, c. 70, 1.
[2 ]It is unfortunately impossible to extricate them as such from Alfred’s laws.
[1 ]As to the date see Liebermann, Wulfstan und Cnut, in the Archiv für das Studium der neueren Sprachen und Literaturen, 103, p. 53.
[1 ]Liebermann, Die angelsächsische Verordnung über die Dunsaete, in the Archiv für das Studium der neueren Sprachen und Literaturen, 102, p. 267 sqq.
[1 ]Liebermann, Zum angelsächsischen Krönungseid, in the Archiv für das Studium der neueren Sprachen und Literaturen, 109, p. 375.
[2 ]Liebermann, Die Abfassungszeit von “Rectitudines singularum personarum,” in the Archiv für das Studium der neueren Sprachen und Literaturen, 109, p. 73 sqq.
[3 ]Liebermann in the Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, germanistische Abteilung, V., 207.
[1 ]Vinogradoff, Folkland, in the English Historical Review, 1893, viii. 1.
[2 ]Liebermann, Quadripartitus, ein englisches Rechtsbuch von 1114, 1892.
[1 ]In a manuscript of Holkham Ulpianus de edendo is appended. It does not belong to the Quadripartitus.
[2 ]Liebermann, Ueber das englische Rechtsbuch Leges Henrici, 1901, p. 57 sq.
[1 ]Liebermann, Instituta Cnuti, Transactions of the R. Histor. Soc. N. S. vii. (1893), p. 77-107.
[2 ]Liebermann, Consiliatio Cnuti, eine Uebertragung angelsächsischen Gesetze aus dem zwölften Jahrhundert, 1893.
[3 ]Liebermann, Ueber die Leges Eduardi Confessoris, 1896.
[1 ]Liebermann designates the longer text in his edition as Edw. Conf. retractatus. The retractator is not the author of the older text.
[2 ]Liebermann, Ueber Pseudo-Cnut’s Constitutiones de foresta, 1894. Also Konrad Maurer in Kölbing’s Englische Studien, xvii. 57 sq.
[1 ]John E. Matzke, Lois de Guillaume (Collection de textes pour servir à l’histoire), Paris, 1899; Liebermann, Ueber die Leis Willelme, Archiv für das Studium der neueren Sprachen, etc., 106, p. 113 sqq.
[1 ]So designated by Liebermann, Eine anglo-normannische Uebersetzung des 12. Jahrhunderts von Articuli Willelmi, Leges Edwardi und Genealogia Normannorum, in Gröber’s Zeitschrift fur romanische Philologie, 1895, p. 77 sqq.
[2 ]Liebermann proposes to call this compilation “Leges Anglorum Londiniis saeculo XIII ineunte collectae. Liebermann, Ueber die Leges Anglorum, 1894.
[1 ]The jury of inquest originated in the Frankish mode of proofs per inquisitionem as we find it in the Karolingian Empire.
[1 ]An exhaustive commentary on this document, the constitutional significance of which is often overrated, is given by William Sharp MacKechnie, Magna Charta, Commentary on the Great Charter of King John, 1905.
[1 ]Maitland, Select Pleas of the Crown, i, Introduction, p. 10.
[1 ]Coroners were county officers (custodes placitorum coronae) placed beside the sheriff and charged to look after the administration of criminal justice and the perquisites and revenues resulting therefrom to the king. See Gross, Early History of the Office of the Coroner, New York, 1892.
[2 ]1. La Court Baron, a treatise in Anglo-French language of the thirteenth century; 2. De placitis et curiis tenendis, by John of Oxford; 3. Modus tenendi curias, collected and edited about 1307, by Sir John de Longueville; 4. Curia de visu franciplegii of 1342.
[1 ]See Pollock, The First Book of Jurisprudence, 1896, p. 274, sqq., Pike, An Action at Law in the Reign of Edward III, the Report and Record (in Harvard Law Review, viii. 266), and the Introductions by Maitland in the Year Books edited by him.
[1 ]Gundermann, Englisches Privatrecht, 1864, p. 61.
[2 ]The author of the title would surely not have said tempore regis Henrici secundi, if Henry II had then been living. Perhaps the oldest designation of the treatise contained the words “leges Anglicanae.” This supposition seems to be supported by the words of the prologue (leges namque Anglicanae), and by Roger of Hoveden ii. 215, who is speaking of “leges quas Anglicanas vocamus,” and probably refers to Glanvill’s treatise. It is to be hoped that Leadam’s edition will set this matter clear.
[3 ]Glanvill’s authorship is doubted, so by Pollock & Maitland, History of English Law, i. 142, who surmise that Hubert Walter, Glanvill’s relative and secretary, wrote the book.
[4 ]Maitland, Glanvill revised, Harvard Law Review, vi. 1.
[1 ]The passages borrowed from Azo are given synoptically by Maitland: Select Passages from Bracton and Azo, 1894 (Selden Society, vol. viii).
[1 ]In Liber 1, c. 4, at the end of the last but one line after the word “femmes” a line has been omitted, which the most recent editor fails to notice.
[1 ]Edgar III. 2, 1: If the law of the land be too strict, let him seek relief of the king.
[1 ]Maitland, English Law and the Renaissance, 1901.
[2 ]H. Brunner, The Share of the German Law in the Development of the Universities, 1896, p. 15.
[1 ]Translator’s note: See Bulletin of American Library Association, 1907, p. 94, where the total is placed at about 14,500.
[1 ]A list of the various editions, prepared by Charles C. Soule, has been printed in the publisher’s circular entitled “Legal Bibliography” (Boston).
[1 ]This essay was first published in the Political Science Quarterly, vol. iv, pp. 496-518, 628-647 (1889).
[2 ]A biographical notice of this author is prefixed to Essay No. 1, in volume i of this Collection.
[3 ]Charles Elton, English Historical Review, 1889, p. 155.
[1 ]Contemporary Review, vol. xxxi (1877-78), p. 824, Mr. Freeman on Mr. Froude.
[1 ]The History of the Common Law of England, written by a learned hand (1713). There are many later editions.
[2 ]History of the English Law (4 vols., 1783-87). Originally the work was brought down to the end of Mary’s reign; in 1814 a fifth volume dealing with Elizabeth’s reign was added. An edition published in 1869 cannot be recommended.
[1 ]George Crabb, A History of English Law (1829). George Spence, in the first volume of his Equitable Jurisdiction of the Court of Chancery (2 vols., 1846), has given a learned and valuable account of the development of the common law, perhaps the best yet given. In 1882-83, Ernest Glasson published his Histoire du Droit et des Institutions de l’Angleterre; but this does not go very far below the surface. Heinrich Brunner in Holtzendorff’s Encyklopädie has published a most useful sketch of the French, Norman and English materials for legal history; the part relating to England has been translated into English by W. Hastie (Edinburgh, 1888); this translation I have not seen.
[1 ]James Fitzjames Stephen, History of the Criminal Law (3 vols., 1883); Luke Owen Pike, History of Crime (2 vols., 1873).
[2 ]Kenelm Edward Digby, Introduction to the History of the Law of Real Property (1875).
[3 ]Melville Madison Bigelow, History of Procedure in England (1880).
[4 ]O. W. Holmes, Jr., The Common Law (1882). The History of Assumpsit, by J. B. Ames (Harvard Law Review, April, May, 1888), is a masterly dissertation on some of the central ideas. In many articles in magazines, American and English, one may see a freer and therefore truer handling of particular themes of legal history than would have been possible twenty years ago; and the best text writers, though their purpose is primarily dogmatical, have felt the necessity of testing such history as they have to introduce instead of simply copying what Coke or Blackstone said.
[1 ]Yes, but by no means all of it is in print. The nation was attacked with one of its periodical fits of parsimony, and the consequence is that there exist volumes upon volumes of transcripts made by Palgrave or under his eye. Very possibly the commissioners were for a while extravagant, still it was hardly wise to stop a great work when the cost of transcription was already incurred. However, these transcripts will become useful some day.
[2 ]Some of the coincidences are very striking: thus “fines” were abolished in 1834; in 1835 the earliest fines were printed.
[1 ]To any one who proposes to investigate the English public records the following books will be of use: C. P. Cooper, An Account of the Public Records (2 vols., 1832); F. S. Thomas, Handbook to the Public Records (1853); Richard Sims, A Manual for the Genealogist (1856); Walter Rye, Records and Record Searching (1888). The Annual Reports of the Deputy Keeper of the Public Records are also very useful.
[1 ]Some of the dooms, forgotten for many centuries, were printed by William Lambard in his Archaionomia (1568). An improved and enlarged edition of this book was published by Abraham Whelock (Cambridge, 1644). A yet ampler collection was issued in 1721 by David Wilkins, Leges Anglo-Saxonicae Ecclesiasticae et Civiles. In 1840 these works were superseded by that of Richard Price and Benjamin Thorpe, Ancient Laws and Institutes of England, published for the Record commissioners both in folio and in octavo; the second volume contains ecclesiastical documents; a translation of the Anglo-Saxon text is given. Meanwhile Reinhold Schmid, then of Jena and afterwards of Bern, had published the first part of a new edition. Die Gesetze der Angelsachsen, Erster Theil. In 1858, having the commissioners’ work before him, instead of finishing his original book he published what is now the standing edition of all the dooms, Die Gesetze der Angelsachsen (Leipzig, 1858), an excellent edition equipped with a German translation of the Anglo-Saxon text and a glossary which amounts to a digest. Yet another edition has for some time been promised by F. Liebermann. The manuscripts are so numerous and in some cases so modern and corrupt, and the study of the Anglo-Saxon tongue and of the foreign documents parallel to our dooms is making such rapid progress, that in all probability no edition published for some time to come will be final.
[1 ]The standing collection is (or until lately was) the great work of John Mitchell Kemble, Codex Diplomaticus Aevi Saxonici (6 vols., 1839-48), published for the English Historical society, with excellent introductions, a work not now easily to be bought. Kemble marks with an asterisk the documents that he does not accept as genuine. Benjamin Thorpe’s Diplomatarium Aevi Saxonici (1865), is a small collection of much less importance. Walter de Gray Birch, under the title Cartularium Saxonicum, is publishing a collection which will contain all Kemble’s documents and more also and which will be based on a new examination of the MSS.; two volumes of this work are already completed John Earle’s Handbook to the Land Charters and other Saxonic documents (1888), is a most useful work, containing many typical charters which are critically discussed chiefly from the standpoints of philology and the diplomatic art. For close study the following are invaluable: Bond’s Facsimiles of Ancient Charters in the British Museum (4 vols., 1873-78; photographs of about 120 documents), and the photozincographed Facsimiles of Anglo-Saxon Manuscripts, edited by W. Basevi Sanders, 3 vols.
[1 ]Some of the legal points in these documents are discussed by Brunner, Zur Rechtsgeschichte der romischen und germanischen Urkunde (1880). Kemble’s introductions are still of the highest value.
[2 ]The classical collection of the Councils has been David Wilkins, Concilia (1737, 4 vols.). The first volume goes far beyond the end of this period, goes as far as 1265. For the time before 870 this is superseded by vol. iii of Councils and Ecclesiastical Documents relating to Great Britain and Ireland, by Arthur West Haddan and William Stubbs (Oxford, 1869-73); a yet unfinished work, the first volume of which refers to the British, Cornish, Welsh, Irish and Scottish churches. This collection contains, besides the Councils, many other ecclesiastical documents and what seems to be the best part of the penitential literature. Canons and penitentials are also to be found in vol. ii of the Ancient Laws and Institutes, but it is said that they were not very discriminately edited. The history of penitentials seems to be an intricately tangled skein.
[1 ]In the following remarks I rely partly upon Brunner, partly upon Ernest Joseph Tardif, who is engaged upon editing the Norman Coutumiers.
[2 ]Thomas Stapleton, Magni Rotuli Scaccarii Normanniae (2 vols., 1840-44). A fragment of the roll of 1184 was published by Leopold Delisle, Magni Rotuli Scaccarii Normanniae Fragmentum (Caen, 1851).
[3 ]These are most accessible in Leopold Victor Delisle’s Recueil de Jugements de l’Exchiquier de Normandie au XIIIe siècle (Paris, 1864). A collection of judgments delivered in the “Assises” between 1234 and 1237 (Assisiae Normanniae will be found in Warnkönig’s Französische Staats- und Rechtsgeschichte, vol. ii, pp. 48-64).
[4 ]The former has lately been edited by Tardif under the title, Le très ancien Coutumier de Normandie (Rouen, 1881); the latter may be found in A. J. Marnier’s Établissements et Coutumes, Assises et Arrêts de l’Exchiquier de Normandie (Paris, 1839).
[1 ]This was first printed in 1483; there have been many subsequent editions. The Latin text can be found in Johann Peter Ludewig, Reliquiae Manuscriptorum (Frankfort and Leipzig), vol. vii; the French in Bourdot de Richebourg, Coutumier Général, vol. iv. For some time past a new edition of the Latin Summa by Tardif has been advertised as in the press. The authorship of the work has been discussed by Tardif in a pamphlet entitled Les Auteurs presumés du Grand Coutumier de Normandie (Paris, 1885).
[2 ]From this and other sources, some very important documents are printed by way of appendix to M. M. Bigelow’s History of Procedure (London, 1880); as to their date, see Brunner, Zeitschrift der Saviany Stiftung, ii, 202. Tardif, in his edition of the Très ancien Coutumier, p. 95, has given a list of unprinted cartularies.
[1 ]The “Leges” will be found in the Record Commissioners’ Ancient Laws, and in Schmid’s Gesetze. The best version of the Conqueror’s ordinances, together with the charters of Henry I and Stephen and the various assizes of Henry II, is in Stubbs’s Select Charters, which book now becomes indispensable. An earlier collection of the laws of this age, which is still useful, is Henry Spelman’s Codex Legum Veterum, published from Spelman’s posthumous papers by David Wilkins in his Leges Anglo-Saxonicae. Some points about the “Leges” are discussed by Stubbs in the Introduction to vol ii of his edition of Roger Hoveden (Rolls series) and by Freeman in his Norman Conquest, vol. v, app. note kk.
[1 ]Liebermann’s article on the date of the Leges Henrici is in Forschungen zur deutschen Geschichte, Bd. xvi; his book on the Dialogus de Scaccario, mentioned below, has some critical remarks on the Leges Edwardi. The lost legislation of Henry II may be partially reconstructed by means of Glanvill and Bracton. There is yet room for a great deal of work on the assizes and “leges.” We have reason to believe that there once existed an important law book of Henry I’s day, but it is not now forthcoming; what is known about it will be found in Cooper’s Account of the Public Records (1832), ii, 412. For the strange history of “the bilingual code” reference should be made to the famous article in the Quarterly Review, No. 67 (June, 1826), p. 248, in which Palgrave exposed the Ingulfine forgery, and two articles by Riley in the Archæological Journal (1862), vol. xix.
[2 ]The treatise was printed by Tottel without date about 1554; later editions were published in 1604, 1673, 1780; an English translation by Beames in 1812. It will be found also in the official edition of Acts of Parliament of Scotland, vol. i, where it is collated with the Scottish law book Regiam Majestatem. It will also be found in David Houard’s Traités sur les Coutumes Anglo-Normandes (1776), and in Georg Phillips’ Englische Reichs- und Rechtsgeschichte (1827-28). An ancient French translation of it, not yet printed, exists in Mus. Brit. MS. Lands, 467. A new edition in the Rolls series by Travers Twiss is advertised. The evidence as to Glanvill’s authorship will be briefly canvassed in the Dictionary of National Biography, s. v. Glanvill.
[1 ]The Dialogue, which was at one time cited as the work of “Gervasius Tilburiensis,” was appended by Thomas Madox to his beautiful History of the Exchequer (1st ed. in one vol., 1711; 2d ed. in two vols., 1769), one of the greatest historical works of the last century. It will also be found in the Select Charters. It is the subject of an essay by Felix Liebermann, Einleitung in den Dialogus de Scaccario (Göttingen, 1875).
[1 ]Lanfranc’s juristic exploits are chronicled in the Liber Papiensis, Monumenta Germaniae, Leges, iv, pp. xcvi, 402, 404, 566. It is not absolutely certain that this Lanfranc is our Lanfranc. The Pavian law school, which was engaged in reducing the ancient Leges Longobardorum, a body of law very similar to our Anglo-Saxon dooms, into rational order, would have afforded an excellent training for the future minister of the Norman Conqueror; and the close resemblance of some of our writs and pleadings to the Lombard formulas has before now been remarked.
[2 ]Carl Friedrich Christian Wenck, Magister Vacarius (Leipzig, 1820), gives an elaborate account of Vacarius’s work (the title of which was Liber ex universo enucleato jure exceptus et pauperibus praesertim destinatus), together with many passages from it. One of the few MSS. is in the library of Worcester Cathedral.
[3 ]Stubbs, Lectures on Mediæval and Modern History, p. 303.
[1 ]As a starting-point the investigator might take Savigny, Geschichte des romischen Rechts im Mittelalter, Kap. 36, and E. Caillemer, Le Droit Civil dans les Provinces Anglo-Normandes, Mémoires de l’Académie Nationale de Caen (1883), p. 157. Caillemer gives what remains of the treatise of William Longchamp, and will put a student on the track of what is known about “Pseudo-Ulpianus,” Ricardus Anglicus, who is identified with Richard le Poor, bishop of Salisbury and Durham, and William of Drogheda. The lectures of Stubbs on the history of Canon law in England, Lectures on Mediæval and Modern History (1886), Lects. 13, 14, are of great interest. The old learning as to the history of Roman law in England is found in Selden’s Dissertation suffixed to Fleta (more of this below); see also Thomas Edward Scrutton, The Influence of Roman Law on the Law of England (Cambridge, 1885).
[2 ]Few aids would be more grateful to the historian of law or even to the historian of England than a “Codex Diplomaticus Normannici Aevi.” As it is, the documents must be sought for in the Monasticon and the cartularies and annals of various religious houses. Some of these have been published in the Rolls series; those of Abingdon. Malmesbury, Gloucester, Ramsey and St. Albans (Mat. Par. Chron. Maj. vol. vi) may be mentioned. A useful selection for this and later times is given by Thomas Madox, Formulare Anglicanum (1702), with good remarks on matters diplomatic; another small selection of early charters has just been edited by J. Horace Round for the Pipe Roll society. Stubbs, Select Charters, gives the municipal charters of this time.
[3 ]Domesday, or the Exchequer Domesday, as it is sometimes called, was published by royal command in 1783 in two volumes; in 1811 a volume of indexes appeared; in 1816 the work was completed by a supplementary volume containing (a) the Exon Domesday, a survey of the south-western counties, the exact relation of which to the Exchequer Domesday is disputed, (b) the Inquisitio Eliensis, containing the returns relating to the possessions of the church of Ely, and two later documents, viz. (c) the Winton Domesday, a survey of Winchester in the time of Henry I, and (d) the Boldon Book, a survey of the Palatinate of Durham in 1183. Since then (1861-63) the Exchequer Domesday has been “facsimiled” by photozincography; the part relating to each county can be bought separately. The Inquisitio Comitatus Cantabrigiensis, published by N. E. S. A. Hamilton in 1876, contains the returns made by the jurors of Cambridgeshire to the Domesday inquest.
[1 ]Among the works relating to Domesday may be mentioned the following: Henry Ellis, A General Introduction to Domesday Book (Rec. Com., 2 vols., 1833); Samuel Heywood, A Dissertation upon the Distinctions in Society and Ranks of the People under the Anglo-Saxon Governments (1818); James F. Morgan, England under the Norman Occupation (1858); several works of Robert William Eyton, A Key to Domesday [Dorset], Domesday Studies [Somerset] (2 vols., 1880), Domesday Studies [Stafford] (1881); appendixes to vol. v. of Freeman’s Norman’s Conquest; Domesday Studies (1888), a volume of essays by various writers edited by P. Edward Dove (a second volume of this work is promised).
[2 ]The Pipe Rolls of 31 Henry I, 2, 3, 4 Henry II, 1 Richard I and 3 John (this last from the Chancellor’s antigraph) were edited for the Record commissioners by Joseph Hunter. The Pipe Roll society has now taken these documents in hand and published the rolls for 5-12 Henry II.
[1 ]The Liber Niger Scaccarii was edited by Thomas Hearne (2 vols., 1728).
[2 ]Melville Madison Bigelow, in his Placita Anglo-Normannica (London, 1879), has collected most of what has been discovered touching litigation between 1066 and 1189. For a newly found case, see F. Liebermann, Ungedruckte anglo-normannische Geschichtsquellen (Strassburg, 1879), pp. 251-256; for Norman cases of great value and their connection with English law, Brunner’s Entstehung der Schwurgerichte (Berlin, 1871). As to early plea rolls and early fines, reference may be made to the Selden society’s Select Pleas of the Crown, vol. 1 (1887), Introduction; since that introduction was written five more copies of fines of Henry II’s day have been found in Camb. Univ. Libr. MS. Ee. iii, 60.
[1 ]The laws must be sought primarily in editions of the Statute Book, in particular in the Statutes of the Realm, published for the Record commissioners, the first volume of which work (1810) contains the Charters of Liberties besides the earliest statutes. Stubbs’ Select Charters is invaluable for this period, especially as giving the documents relating to the revolutionary time which preceded the Barons’ War. Blackstone, The Great Charter (1759), is a learned and useful work. It should be remembered that the text of the earliest statutes is not in all respects very well fixed, e. g. it is possible to raise doubts as to the contents of the statute of Merton. There is yet room for work in this quarter. Also it should be noticed that editions of the statutes, including the commissioners’ edition, contain Statuta Incerti Temporis. In lawyers’ manuscripts these were found interpolated between the Statuta Vetera, which end with Edward II, and the Statuta Nova, which begin with Edward III, like the Apocrypha between the two Testaments; hence they came to be regarded as statutes of the last year of Edward II. Some of them are certainly older, and some of them were certainly never issued by any legislator, but are merely lawyer’s notes; in the Year Books their statutory character is disputed; “apocryphal statutes” seems the best name for them. To make a critical edition of them would be a good deed. Perhaps the most interesting is the Prerogativa Regis, apparently some lawyer’s notes about the king’s prerogatives. Coke’s Second Institute is the classical commentary on the early statutes.
[1 ]We are still behindhand in the work of exploiting the Plea Rolls. In 1811 the Record commissioners published the Placitorum Abbreviatio, a collection of extracts and abstracts extending from Richard I to the death of Edward II, made by Arthur Agard and others in the reign of Elizabeth. Valuable as this book is, it can only be regarded as a stopgap; our wants are not those of Elizabeth’s day. In 1835 Palgrave edited for the commissioners a few of the rolls of Richard I and John under the title Rotuli Curiae Regis; the residue of Richard’s rolls are to be published by the Pipe Roll society; the earliest rolls are not the most interesting. The present writer has edited Pleas of the Crown for the County of Gloucester (1884), the criminal part of an Eyre Roll of 1221; Bracton’s Note Book (3 vols., 1887), near two thousand cases of Henry III’s reign; and, for the Selden society, Select Pleas of the Crown (vol. i, 1887), a selection of criminal cases from the period 1200-1225. In 1818 the Record commissioners published a large volume of Placita de Quo Warranto, mostly from Edward I’s reign, which is full of precious information about feudal justice. But only a beginning has been made; in particular the very valuable Rolls of Exchequer Memoranda must be brought to light; their general character may be gathered from the few extracts printed at the beginning of Maynard’s Year Book of Edward II (1678).
[2 ]Some of the fines of Richard’s and John’s reigns were edited for the commissioners by Joseph Hunter (2 vols., 1835-44); the residue are to be published by the Pipe Roll society. The fines of a little later date are far more valuable and show elaborate family settlements; but they are unprinted.
[1 ]Published for the Record commissioners are the Close Rolls, 1204-1224, edited by T. D. Hardy (2 vols., 1833-44); the Patent Rolls, 1201-1216, by Hardy, with a learned Introduction (1 vol., 1835); the Oblate and Fine Rolls of John’s reign, by Hardy (1 vol., 1835); Excerpts from the Fine Rolls, 1216-1272, by Charles Roberts (2 vols., 1835-36); the Charter Rolls, 1199-1216, by Hardy (1 vol., 1837). The Rolls of Parliament (6 vols. and Index) were officially published in the last century, but at least so far as the first period (Edward I, II, III) is concerned, this edition leaves much to be desired. Many materials for the illustration of parliamentary business have since come to light, and vast numbers of early Petitions to Parliament still remain unprinted. Of the Hundred Rolls hereafter.
[2 ]An edition of Bracton was published in 1569 and reprinted in 1640; a new edition has been given in the Rolls series by Travers Twiss (6 vols., 1878-83); the editor however was hardly alive to the difficulty of his task and failed to observe that the very numerous MSS. present the work in several different stages of composition. A more adequate edition is much wanted. It should show what Bracton borrowed from Azo, and also, when this is important, what he declined to borrow from Azo; it should give all the cases cited by Bracton which are not already printed in the Note Book, or such of them as can yet be found on the rolls; it should settle the pedigree of the MSS., distinguish the author’s original work from his afterthoughts and from the glosses by later hands, some of which glosses (never yet printed) are of great interest. Five years of hard work might give us a really good edition. The Note Book alluded to above was brought to light by Paul Vinogradoff in 1884 and has since been published (1887).
[1 ]Fleta was printed in 1647 and again in 1685; these editions are faulty but are accompanied by a learned dissertation coming from Selden. Part of Fleta was edited anonymously by Sir Thomas Clark in 1735. An admirable edition of Britton has been published by Francis Morgan Nichols (2 vols., Oxford, 1865). Britton was first printed by Redman (without date) and was again printed in 1640; a translation of part of it was published in 1762 by Robert Kelham. Britton and Fleta are also to be found in Houard’s Traités sur les Coutumes Anglo-Normandes.
[1 ]“Fet assavoir” appears at the end of the editions of Fleta. The two Henghams appear in Selden’s edition of Fortescue’s De Laudibus (1616). Some of the minor tracts seem never to have been printed.
[2 ]A poor version of the French text of the Mirror was issued in 1642, an English translation of it by William Hughes in 1642, 1768 and 1840. A critical edition of this curious book would be of great value.
[1 ]Thus a Cambridge MS. Kk, v, 33, gives a very early Registrum Brevium in which we may read how a number of writs were invented by William Raleigh. The earliest Register known to me is in Mus. Brit. MS. Cotton. Julius D. II.
[2 ]Happily the Year Books of Edward I remained unprinted until very lately; the consequence is that we have a good edition of them. Between 1863 and 1879 Alfred J. Horwood edited for the Rolls series five volumes containing cases from the years 20, 21, 22, 30, 31, 32, 33, 35 Edw. I. Before his death he had begun work on the Year Books of a later age, and the inference might be drawn that he was unable to find any more reports of Edward I’s reign. But he seems to have nowhere stated that this was so, and a cursory inspection of the manuscripts induces the belief that they have not yet been exhausted.
[1 ]The Boldon Book was published as an appendix to the official edition of Domesday, vol. iv, and again by the Surtees society; the Glastonbury Inquisitions were printed for the Roxburghe club; an abstract of the Burton Cartulary for the Salt society; the Black Book of Peterborough for the Camden society at the end of the Chronicon Petroburgense; the Domesday of St. Paul’s and the Worcester Register (both with valuable introductions by William Hale Hale) and the Battle Cartulary for the Camden society; the Gloucester and Ramsey Cartularies are in the Rolls series. The Hundred Rolls were published by the Record commissioners (2 vols., 1812-18). The publications of the Camden society are often in the market.
[2 ]The Selden society’s volume for 1888, Select Pleas in Manorial and other Seignorial Courts, gives extracts from some typical rolls of the thirteenth century and may serve to stimulate a desire for further information.
[1 ]There are several little treatises on the practice of manorial courts. Some of these in their final shape belong to the next period and are represented by the Modus tenendi Curiam Baronis, two editions by R. Pynson (n.d.—1516-20?); Modus tenendi unum Hundredum, Redman (1539); Modus tenendi Curiam Baronis, Berthelet (1544); The Maner of kepynge a Courte Baron, Elisabeth Pykeringe (1542?); The Maner of kepynge a Court Baron, Robert Toye (1546). But beside these there is a quite early set of precedents which seems never to have been printed. It generally begins “Ici poet home trover suffysaument . . . tut le cours de court de baron.” It is found in several MSS., e. g. Mus. Brit. Egerton, 656; Add. 5762; Lands, 467.
[2 ]One of these tracts (in an English version) got printed very early without date or printer’s name. “Boke of husbandry. Here begynneth a treatyse of husbandry whiche mayster Groshede somtyme byssshop of Lyncoln made and translated it out of Frensshe into Englysshe. . . . The 1. chapitre. The fader in his olde age sayth to his sone lyve wysely. . . . Here endeth the boke of husbandry and of plantynge and graffynge of trees and vines.” One of the tracts was published by Louis Lacour; Traité inédit d’économie rurale composé en Angleterre, Paris, 1856. These seem at present the only printed representatives of this “Walter of Henley literature;” but it appears in many manuscripts. For information on this subject I am indebted to my friend Dr. William Cunningham, the author of The Growth of English Industry and Commerce, who proposes, I believe, to reprint in the second edition of his book the rare tract ascribed to Bishop Grostete of Lincoln. Some other of these tracts are, I hear, to be edited for the Royal Historical society.
[1 ]Thomas Madox’s Firma Burgi (1726) is a vast mine of facts, and many will be found in The History of Boroughs, by Henry Alworth Mereweather and Archibald John Stephens (3 vols., 1835). For London, Henry Thomas Riley’s Monumenta Gildhallae Londoniensis (Rolls series, 3 vols. in 4, 1859-62) is the great book. A custumal of Ipswich is printed by Travers Twiss in vol. ii of the Black Book of the Admiralty (Rolls series, 1873). A considerable number of other municipal custumals belonging to this and the next period are known to exist in manuscript. A little about the law merchant will be found in the Selden society’s vol. ii, where some pleas in the court of the Fair of St. Ives are given. A great deal about the legal treatment of merchants and mercantile affairs is collected by Georg Schanz, Englische Handelspolitik (2 vols., Leipzig, 1881).
[1 ]It is said that the rolls of the Court of Common Pleas for Henry VIII’s reign consist of 102,566 skins of parchment.
[1 ]The Proceedings and Ordinances of the Privy Council from 1386 to 1542 were edited for the Record commissioners by Nicholas Harris Nicolas (7 vols., 1834-37). There are two well-known monographs, Francis Palgrave, Essay upon The Original Authority of the King’s Council (1834) and A. V. Dicey, Essay on the Privy Council (2d ed., 1887). The Calendars of the Proceedings in Chancery in the Reign of Elizabeth, as published by the commissioners (3 vols., 1827-32), contain some specimens of earlier proceedings beginning in the reign of Richard II. A calendar of proceedings in Chancery beginning with Richard’s reign is in the press. Spence’s Equitable Jurisdiction, mentioned above, affords much that is of historical value. But quite new ground was broken by L. O. Pike’s essay on Common Law and Conscience in the Ancient Court of Chancery, Law Quarterly Review. I, 443, and by O. W. Holmes’ daring paper on Early English Equity, ibid. 162. The suggestions thus made must be followed up; and it is believed that the materials for a history of the beginnings of equity are to be found at the Record office in great abundance. It is high time that they should be used. As to the Star Chamber, considering how important, how picturesque a part it played in English history, it is surprising that no very serious attempt should have been made to master the great mass of documents relating to it.
[1 ]Early editions of Littleton’s Tenures are numerous and some of them are precious; an edition by T. E. Tomlins, 1841, is probably the best. Any one who has heard of Coke upon Littleton has probably also heard of the fine edition of that book made by Francis Hargrave and Charles Butler; their notes, especially Butler’s, are of real value even for the mediæval period. The Novae Narrationes were printed by Pynson without date and were published again in 1561; both the Old Tenures and the Old Natura Brevium were printed by Pynson.
[2 ]Fortescue’s most famous work De Laudibus Legum Angliae was edited with important notes by Selden in 1616, and has since been edited by A. Amos. His writings will be found in the first volume of a luxurious book printed for private circulation by Lord Clermont, Sir John Fortescue and his Descendants. His tract on The Governance of England has been beautifully edited with an elaborate apparatus by Charles Plummer (1885).
[1 ]As I have reason to believe that the difficulty of reading legal MSS. is greatly exaggerated by those who have made no experiment, I may be allowed to say that any one who knows some law and some Latin will find that the difficulty disappears in a few weeks. Of course I am not denying that from time to time problems may arise which only an experienced or perhaps a specially gifted eye can solve, but as a general rule our legal records from the beginning of the thirteenth century downwards are written with mechanical regularity; during the thirteenth century the writing is often beautiful; usually if one cannot read them this is because one does not know law enough, not because the characters are ill-formed or obscure.
[1 ]This essay was first published in the Law Quarterly Review, vol. xxii, pp. 266-284 (1906), and has been revised by the author for this Collection; it will form a chapter in vol. ii. of the author’s History of English Law, to appear in 1908.
[2 ]Lecturer in St. John’s College, Oxford. A biographical note of this author is prefixed to Essay 9, in volume I of this Collection.
[1 ]See Y. B. 1, 2 Ed. II (S. S.), xxx, and 3 Ed. II (S. S.), xvi-xxi for a MS., described by Selden in his Dissertatio ad Fletam which is now lost; and Y. B. 17, 18 Ed. III (R. S.), xix for a MS. used by Fitzherbert, which has also disappeared.
[1 ]Y. B. 20, 21 Ed. I (R. S.), xv.
[2 ]Y. B. 2, 3 Ed. II (S. S.), ix, x.
[3 ]Ibid. x.
[4 ]Ibid. xiv.
[5 ]Y. B. 2, 3 Ed. II (S. S.), xiv.
[6 ]Y. B. 1, 2 Ed. II (S. S.), xc; 3 Ed. II (S. S.), xii, xxxii-xli.
[7 ]Y. B. 3 Ed. II (S. S.), xli.
[1 ]Y. B. 12, 13 Ed. III, xix; cp. 11, 12 Ed. III, x-xviii, 13, 14 Ed. III, xvii-xxi, xxiv, 17 Ed. III, xxx, xxxi.
[2 ]20, 21 Ed. I (R. S.), xviii; 13, 14 Ed. III (R. S.), xxv; 16 Ed. III, (R. S.), i, xxi. “It is probable that in the multiplication of copies by hand, for the use of the profession, various remarks originally made in the margin became incorporated in the text. . . . It is difficult to account otherwise for the occasional interpolation of a query, with the answer Credo quod non, and for various observations, complimentary or otherwise, or statements of law by particular persons.”
[3 ]Hale, Hist. Comm. Law, 201, says that he saw the entire years and terms of Richard II’s reign in MS.; there are a few cases in Fitzherbert, Jenkins, Keilway and Benloe; these have been collected by Bellewe, Reeves, H. E. L. ii. 487, Cooper, Public Records, ii. 392, 393.
[4 ]On this subject see Soule, Year-Book Bibliography, Harv. Law Rev. xiv. 557 seqq.
[1 ]Soule, 563, 564.
[2 ]Soule, 561.
[3 ]Ibid., 564, 565. At p. 562 Mr. Soule says, “It would seem that while the printers issued separate years and even supplied separate sheets to complete imperfect years, the booksellers and lawyers bound together after 1550, and probably even before that time, these separate pamphlets in chronological order, by reigns, with very much the same arrangement followed in the 1679 edition. But there was no uniformity of editions or imprints—every owner making his own combinations as he happened to get hold of different editions of the several years.”
[1 ]Soule, 565.
[1 ]Pike, The Manuscripts of the Year Books, The Green Bag, xii. 534.
[2 ]See passages from Tottell’s editions of Magna Carta, and the Quadragesms cited by Soule, 563, 564, 568.
[3 ]Soule, 568.
[4 ]Y. B. 1, 2 Ed. II (S. S.), xxi-xxviii.
[5 ]Ibid. xxi.
[6 ]Ibid. xxviii; to the same effect Mr. Pike, The Green Bag, xii. 535.
[7 ]Born 1602, died 1690.
[1 ]Cooper, Public Records, ii. 390, 391.
[2 ]Mr. Pike, Harv. Law Rev. vii. 266, says: “The report was intended for the use of the legal profession. . . . It was designed to show general principles of law, pleading or practice. . . . The record, on the other hand, was drawn up for the purpose of preserving an exact account of the proceedings in the particular case in perpetuam rei memoriam, but only in the form allowed by the court. The report contains not only the reasons eventually accepted, but often the reasons or arguments which preceded each, and the reasons or arguments for which other pleadings were disallowed.”
[1 ]Y. B. 13, 14 Ed. III (R. S.), xvi, xvii; the idea seems to have been anticipated by Blackstone, see Comm. i. 71.
[2 ]Y. B. 1, 2 Ed. II (S. S.), xxxi.
[3 ]Ibid. xvii.
[4 ]Co. Rep. iii, Pref.
[5 ]Works, v. 86; in 1617 Bacon persuaded James I “to revive the ancient custom” by appointing two reporters, “to attende our Courts at Westminster,” at a salary of £100 a year, Rymer, Foedera, xvii. 27, 28.
[6 ]Comm. i. 71, 72. Blackstone adds or invents the information that the reports were made by the prothonotaries.
[1 ]Y. B. 30, 31 Ed. I (R. S.), xxiii, xxiv.
[2 ]Y. B. 14, 15 Ed. III (R. S.), xv; 18 Ed. III, lxxx, lxxxi.
[3 ]Y. B. 1, 2 Ed. II (S. S.), xi-xiv.
[4 ]Ibid. xii. Mr. Pike, The Green Bag, xii, 535, says. “No Year Books or copies of them have been found among the records of any of the courts. Some of the manuscripts are still in private hands; and those which are in public libraries can usually be traced to a particular donor or vendor.”
[5 ]22 L. Quart. Rev. 268.
[6 ]Y. B. 21 Ed. IV, Mich. pl. 4.
[7 ]Y. B. 2, 3 Ed. II (S. S.), xv, xvi.
[1 ]Y. B. 1, 2 Ed. II (S. S.), xiii.
[2 ]Y. B. 3 Ed. II (S. S.), lxxii-xciii for specimens of the reporter’s work compared with the record. A good instance of divergent reports will be found in Y. B. 3 Ed. II (S. S.), cases 21 A & B, pp. 186-8. Perhaps a little polish was expected; R. Farewell and J. Dyer tell us, in their dedication of Dyer’s reports to the students of the law, that the Chief Justice “wanted time and leisure to polish and beautifie the said cases with more large arguments which he had a full purpose to have done.”
[3 ]Y. B. 3 Ed. II (S. S.), xii.
[4 ]Y. B. 2, 3 Ed. II (S. S.), xiv; 3 Ed. II (S. S.), xiv.
[1 ]Novae Narrationes, ff. 71-73 b; and see an extract from the Brevia Placitata cited Y. B. 2, 3 Ed. II (S. S.), xiv, n. 1.
[2 ]Y. B. 1, 2 Ed. II (S. S.), xiv.
[3 ]Bracton’s Note Book, i. 25.
[4 ]Professor Maitland (Y. B. 3 Ed. II [S. S.], xxi) says that one of the MSS. of Edward II’s Y. BB. contains many records with a precise reference to the roll; Mr. Pike says that one MS. of the Y. BB. (Add. MS., no. 16560, in the British Museum) for the first 120 folios contains copies of records; the rest of the 323 folios of which the MS. consists is taken up by reports, Y. B. 11, 12 Ed. III (R. S.), xv; sometimes what look like copies of records appear in the Y. BB., e. g. 11, 12 Ed. III (R. S.), 210, 13, 14 Ed. III, 306, 17 Ed. III, 324, Longo Quinto, pp. 20, 97, 98, 4 Ed. IV, Mich. pl. 25—a precedent of a recognizance; perhaps there was sometimes an attempt to combine the two sources of information. Cf. Y. B. 34 Hy. VI, Mich. pl. 42, where the reporter refers at the conclusion of the case to “Roll 28 of the Easter Term of 33 Henry VI.”
[1 ]22 L. Quart. Rev. 272, n. 1; cp. Y. B. 3 Ed. II (S. S.), lxix, lxx.
[2 ]Y. B. 1, 2 Ed. II (S. S.), xv.
[3 ]22 L. Quart. Rev. 267.
[4 ]Y. B. 2, 3 Ed. II (S. S.), xi; and cp. Y. B. 30, 31 Ed. I (R. S.), 1.
[5 ]Y. B. 14, 15 Ed. III (R. S.), xv.
[1 ]Y. B. 20, 21 Ed. I (R. S.), xviii, it is said that the MS. was clearly written from dictation, and that the scribe did not understand what he was writing; see Y. B. 13, 14 Ed. III (R. S.), xxi for an account of a MS. in which Y. BB. of Ed. II have got in among Y. BB. of Ed. III; and cp. Plowden’s Rep. Pref. for the manner in which his reports were borrowed, and so incorrectly copied that he resolved to publish them himself.
[1 ]Y. B. 32, 33 Ed. I (R. S.), 32.
[2 ]Y. B. 3 Ed. II (S. S.), x, “A little acquaintance with the manuscripts that we have been transcribing would be enough to show that the justices could not have treated them in the way which a modern judge can treat a modern law report. Those manuscripts differ in every conceivable way. Every citation would begin a new dispute.”
[3 ]Y. B. 20, 21 Ed. I (R. S.), 358 (not followed), 438 (distinguished); 21, 22 Ed. I (R. S.), 280, 340 (authenticity questioned), 242, 406; 30, 31 Ed. I (R. S.), 178; 32, 33 Ed. I (R. S.), 28, 146, 300; 33-35 Ed. I (R. S.), 24; 3 Ed. II (S. S.), 34, 60, 199. Sometimes the citation of cases by the judges takes the form of reminiscences, cp. Y. B. 16 Ed. III (R. S.), ii. 6, “When you and I were apprentices,” said Sharshulle, “and Sir W. de Herle and Sir J. Stonore were serjeants, you saw Sir J. come to the bar,” etc.
[4 ]Y. B. 18, 19 Ed. III (R. S.), 378.
[1 ]Co. Rep. iii, Pref.
[2 ]There are a few cases in Dyer from the 4th, 6th, 19th, and 24th years of Henry VIII. His reports therefore just overlap the latest Year Books. The style of the later Y. BB. is very similar to the style in which these earlier cases in Dyer are reported.
[3 ]Y. B. 13, 14 Ed. III (R. S.).
[4 ]Dict. Nat. Biog.; Dugdale, Orig. Jurid. 58, 247, 257.
[1 ]Dict. Nat. Biog.; Foss, Judges, v. 167-169.
[2 ]Bracton’s Note Book; i. 117-121.
[3 ]Dict. Nat. Biog.; Foss, Judges, v. 359-361.
[4 ]H. E. L., iii. 814.
[5 ]A selection of the more recent cases contained in Broke was published in 1578, under the title, “Ascuns novell cases de les Ans et Temps le Roy Henry VIII, Edward VI et la Roygne Mary escriti en la Graunde Abridgement;” this selection was republished in 1587, 1604, and 1605; it was translated in 1651 by J. March, and the French and English text was republished in 1873.
[1 ]22 L. Quart. Rev. 380.
[2 ]The Encyclopædia of English Law.
[1 ]Y. B. 3 Ed. II (S. S.), 196; something of the Countess of Albemarle will be found in Red Book of the Exchequer (R. S.), iii, cccxii-cccxv, 1014-1023.
[1 ]Y. B. 21, 22 Ed. I (R. S.), 272.
[2 ]Y. B. 12, 13 Ed. III (R. S.), 236. [“Parning” was really Parvyng; see Mr. Pike’s introduction to Y. B. 18 Ed. III.]
[3 ]Y. B. 11, 12 Ed. III (R. S.), 370; cp. 3 Ed. II (S. S.), 112, 113.
[1 ]Y. B. 17, 18 Ed. III (R. S.), 618.
[2 ]Y. B. 35 Hy. VI, Mich. pl. 33, p. 29. Prisot C. J. says “Un carue de terre est grand en ascun pais que n’est en auter pais; et uncore, mesque un soit moins que un auter, chescun per luy est un carue, car un plough puit arrer plus terre en l’an en escun pais que en auter pais.”
[3 ]Y. B. 33-35 Ed. I (R. S.), 120; 38 Hy. VI, Pasch. pl. 13.
[4 ]Longo Quinto, p. 54, “Car ne purromus arguer matters en ley per cause del fine del terme.”
[5 ]Y. B. 43 Ed. III, Pasch. pl. 43, cited Y. B. 30, 31 Ed. I (R. S.), xxxi.
[1 ]Y. B. 20, 21 Ed. I (R. S.), 436; cp. 11, 12 Ed. III (R. S.), 312.
[2 ]Y. B. 32, 33 Ed. I (R. S.), 72.
[3 ]Ibid. 400.
[4 ]Y. B. 14, 15 Ed. III (R. S.), 114; cp. 11, 12 Ed. III (R. S.), 442.
[5 ]Y. B. 21 Ed. IV, Mich. pl. 6 (p. 47).
[1 ]Y. B. 2 Hy. VI, Mich. pl. 3. An apprentice had put a case to the court, and then, “Martin l’un des justices mettra le cas a les Serjeants a le barre et demanda que semble a eux seroit fait en ce cas.”
[2 ]See e. g. Y. B. 34 Hy. VI, Mich. pl. 13, “Quod fuit concessum per omnes justitiarios et per plusors Sergeants al barre.”
[3 ]21, 22 Ed. I (R. S.), 218.
[4 ]30, 31 Ed. I (R. S.), 106.
[5 ]Y. B. 3 Ed. II (S. S.), 160.
[6 ]14 Ed. III (R. S.), 214, 216 (22 L. Quart. Rev. 280, n. 3).
[7 ]Y. B. 21, 22 Ed. I (R. S.), 446.
[8 ]Y. B. 2, 3 Ed. II (S. S.), xv, xvi; 30, 31 Ed. I (R. S.), 234; 14 Hy. IV, Hil. pl. 37; 33 Hy. VI, Trin. pl. 26.
[9 ]Y. B. 32, 33 Ed. I (R. S.), 446; 33-35 Ed. I (R. S.), 6, 20.
[1 ]Y. B. 3 Ed. II (S. S.), 47, 169, 195.
[2 ]Y. B. 33-35 Ed. I (R. S.), 348.
[3 ]Y. B. 16 Ed. III (R. S.), ii, 446; cp. ibid. 480, 482.
[4 ]Y. B. 18, 19 Ed. III (R. S.), 446, 448, and cp. ibid. 436.
[5 ]Y. B. 17, 18 Ed. III (R. S.), 350.
[6 ]Y. B. 8 Ed. IV, Pasch. pl. 11, “Il avera [remedie] et issint poies dire s jeo enfeoffe un home en trust etc., s’il ne voit faire ma volunte jeo n’avera remedy per vous, car il est ma folie d’enfeoffer tiel person que ne voit faire ma volunté etc.; mez il avera remedie en cest courte car Deus est procurator fatuorum:” for other scenes between judge and counsel cp. Y. BB. 11 Hy. IV, Trin. pl. 49, and 5 Hy. V, Hil. pl. 11.
[7 ]Y. B. 1, 2 Ed. II (S. S.), 64.
[8 ]Y. B. 33-35 Ed. I (R. S.), 326.
[9 ]Y. B. 16 Ed. III (R. S.), i, 242.
[1 ]Y. B. 31, 32 Ed. I (R. S.), 192.
[2 ]Y. B. 2, 3 Ed. II (S. S.), 200.
[3 ]Y. B. 14 Hy. IV, Hil. pl. 37.
[4 ]Y. B. 2 Hy. IV, Mich. pl. 48.
[5 ]Y. B. 19 Hy. VI, Pasch. pl. 5, “Mettons que sl un home veut defouler votre femme, vous justifierez de luy battre en defence de votre tres cher compagnon, et subridebat.”
[6 ]Y. B. 4 Ed. IV, Hil. pl. 3, “En l’Exchequer Chambre devant touts les Justices le matiere fuit reherce que fuit perentre le Roy et Sir John Paston, et la fuit le novel Tresorer que fuit fait meme cel terme id est Sir Walter Blount que fuit Tresorer de Calice ii ou iii ans ore passes.”
[7 ]Y. B. 4 Ed. IV, Pasch. pl. 40.
[8 ]e. g. Y. B. 21 Ed. IV, Mich. pl. 6 (p. 47), “Ad alium diem plusiors des Serjeants argueront mes jeo ne fue a lour arguments.”
[9 ]e. g. Y. BB. 12, 13 Ed. III (R. S.), 74; 17, 18 Ed. III (R. S.), 204; 38 Hy. VI, Pasch. pl. 9; Y. B. 18, 19 Ed. III (R. S.), 32.
[1 ]This essay was first printed in the Harvard Law Review, vol. XV, pp. 1-24, 109-117 (1901), and is reprinted in part.
[2 ]A biographical notice of this author is prefixed to Essay No. 20, in volume I of this Collection.
[3 ]The list includes Aleyn, J. Bridgman, Carter, Goldbolt, Gouldsborough, Hetley, Hutton, Keble, Lane, Latch, Ley, March, Noy, Owen, Popham, Saville, Siderfin, Tothill, Winch, in addition to Anderson, New Benloe, Brownlow, Bulstrode, Calthrop, Carey, Choyce Cases in Chancery, the twelfth and thirteenth parts of Coke, Clayton, Croke, Jenkins, W. Jones, Leonard, Littleton, Mavnard’s Year Books of Edward I. and Edward II., the first Modern, Moore, Palmer, Rolle, Saunders, Style, Vaughan and Yelverton. The first group comprises many of the most worthless of all the reports, and few names in the list carry much weight.
[1 ]2 Ld. Raymond 1072.
[1 ]Cro. Eliz. 313.
[2 ]Page 148.
[3 ]Page 593.
[4 ]Fitzgibbon 24, 25; Fortescue 77.
[5 ]1 Siderfin 109; 1 Levinz 4.
[1 ]As in his note on equity in Eyston v. Studd, ii. 465.
[2 ]5 Mod. viii.
[1 ]Hob. 300; Bulst. preface; 10 B. & C. 275.
[1 ]8 Rep. 4 a.
[2 ]See Sugden on Powers 23, n.
[3 ]5 Rep. 45 b; see 1 Salk. 53, and Will. 569.
[4 ]See Jones on Bailments 41, as to Southcote’s case, 4 Rep. 83 b, and 1 Inst. 89 a; Stephen’s Hist. Crim. Law, ii. 205.
[1 ]5 Rep. 117 a; Co. Litt. 212 b; see Foakes v. Beer, 9 App. Cas. 605.
[2 ]19 Ch. Div. 399.
[3 ]See also 17 Pick. 9.
[1 ]For a detailed examination of Coke’s reports see Wallace’s scholarly work on The Reporters, 165 et seq.
[1 ]Coke’s work affords abundant examples of the verbose and pedantic judicial utterances of early times. On the other hand, Chief Justice Crewe’s remarks on the honors of De Vere (W. Jones, 101) is one of the rare specimens of stately eloquence: “I have labored to make a covenant with myself that affection may not press upon judgment; for I suppose that there is no man that hath any apprehension of gentry and nobleness but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or a twine thread to uphold it. And yet Time has his revolutions; there must be an end of all temporal things,—finis rerum; an end of names and dignities and whatsoever is terrene; and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality. And yet let the name and dignity of De Vere stand so long as it pleaseth God.” The judges were particularly sententious in their use of analogy, as where Hobart contrasts the common and statute law by saying that “the statute is like a tyrant; where he comes he makes all things void; but the common law is like a nursing father, and makes void only that part where the fault is and leaves the rest.” Biblical citations and analogies abound. One of the most curious instances of scriptural allusion is Lord Ellesmere’s reference to the dissenting opinion of his two dissenting brethren in the case of the Post-nati: “The apostle Thomas doubted of the resurrection of the Lord Jesus Christ when all the rest of the apostles did firmly believe it; but this his doubting confirmed in the whole church the faith of the resurrection. The two learned and worthy judges who have doubted in this case, as they bear his name, so I doubt not but their doubting hath given occasion to cleare the doubt in others, and so to confirme in both the kingdomes, both for the present and the future, the truth of the judgment in this case.” There is every evidence that these legal luminaries were devoid of a sense of humor. It has been suggested that Shakespeare derived part of the humorous colloquy between the grave-diggers in Hamlet from Chief Justice Dyer’s serious discourse in Hales v. Petit, Plowden 262. Sir Thomas Bromley’s diverting argument in Sharington v. Stratton, Plowden 303, upon the distinction between brotherly love and mere acquaintance as a sufficient consideration to raise a use in land, is a good specimen of the exhaustive ingenuity with which discussions were pursued at the bar. See, also, in the same volume, the report of the agreement between counsel, in the case of Clere v. Brook, 442, as to the basis of the preference of males to females in the law of descent. On rare occasions a reporter is moved to display his wit. “One Mr. Guye Faux, of the parish of Leathley, a cavalier, had a cause heard about a plunder upon Monday this week after dinner, and was well in court, and damages a hundred pounds awarded, and he was found dead next morning, upon the conceit of it, as was supposed.” (Clayton’s Assize Cases 116.)
[1 ]One is struck by the interminable arguments. Plowden speaks of cases having “hung in argument eight, ten, and twelve terms.” Considering the wide range of the arguments, the consumption of time must have been enormous. For instance, the case of Stowell v. Zouche, in Plowden, was argued twice in the Common Bench and then twice in the Exchequer Chamber before all the judges. Calvin’s case, in Coke, was argued first at the King’s Bench bar by counsel and then in the Exchequer Chamber, first by counsel and then by all the judges; it was afterward twice argued by counsel and then upon four successive days at the next term by all the judges, and thereafter, at another term, by all the judges on four successive days. It was not until Mansfield’s time that this habit of reargument was suppressed.
[1 ]For instance, pages 266 to 298 of W. Jones’s reports contain “notes taken at a justice seat in the forest at Windsor,” forming a quaint record of litigation between Lord Lovelace, Sir Charles Howard, and others, in the time of Charles I., concerning their “deeres and dogges.”
[1 ]It has always been the custom among English judges to deliver their opinions orally. Among the civilians I believe written opinions are the rule.
[1 ]This work is a sort of index to the vast mass of documents brought to light by the commission. In almost all cases, however, the printed volume gives the names of the parties, together with the purpose of the bill and a description of the property. The forms of equity pleading are illustrated by examples of bills and petitions in various reigns. The record consists of the bill, and after written answers were introduced, the answers and further pleadings, together with occasional reports of the examinations of defendants, copies of the decrees entered and of the writs issued.
[2 ]Lest it be thought that these records deal only with legal antiquities, it may be well to note the case (No. 23) of the poor herring hawker of Scarborough, who travelled up into Huntingdonshire and was there assaulted by his local rivals because he sold his merchandise below their rates.
[3 ]These cases were taken from the chancellor’s note-books, which are said to record more than a thousand cases. It is to be hoped that we may one day have them in print.
[1 ]Peere Williams gives several special cases from the King’s Bench. The distinction between common law and chancery is not strictly observed in many of the earlier reports. There are occasional chancery cases in the common law reports of Ventris, Salkeld, Fortescue, Comyns, Fitzgibbon, Strange, Kelynge, Ridgeway, W. Blackstone, Kenyon and others.
[2 ]West (1736-39).
[1 ]The decisions rendered by Lord Redesdale (1802-06) and by Lord St. Leonards (1834-35; 1841-46) as lord chancellors of Ireland, although not strictly binding on English courts, have always been cited with such deference that they have come to partake of the nature of authoritative precedents. Lord Redesdale is reported by Scholaes and Lefroy; Lord St. Leonards in iv.-ix. Irish Equity Reports, and by Messrs. Lloyd, Goold, Drury, Warren, Jones and Latouche.
[1 ]This list originally appeared as an Appendix to “Law and Politics in the Middle Ages” (New York, 1898, 2d ed., 1907; Henry Holt & Co.), to accompany the chapter reprinted as Essay No. 2, in Vol. I of the present Collection.
[2 ]A biographical note of this author is prefixed to Essay No. 2, Vol. I.
[1 ]These references have been omitted, in view of the lists given in Essays No. 22 and 23.—Eds.
[1 ]See the preceding note.—Eds.
[1 ]The ensuing list is intended to supplement the original one by the citation of such new editions or continuations as have appeared since the original list was published, and by the addition of such treatises as afford most useful bibliographical help in the various fields. As many of the more recent undertakings are limited by national political lines, the classification of them here is more conveniently made by countries, instead of according to the more primitive legal stocks.
[1 ]This list first appeared as an Appendix to the article reprinted as Essay No. 13 in Vol. I of this collection; it has been revised by the author.
[2 ]A biographical note of this author is prefixed to Essay No. 13, in Vol. I of this collection.
[1 ]These extracts are taken from “Statutes of the Realm.” Introduction.
[2 ]The Sub-Commissioners. authors of the Introduction, were Alexander Luders, Thomas Edlyne Tomlins, John France, and William Elias Taunton.
[3 ]MS. Harl. No. 249.
[1 ]Dewe’s Journ. 345.
[2 ]Dewe’s Journ. 469, 473.
[3 ]Dewe’s Journ. 553.
[4 ]Dewe’s Journ. 622.
[5 ]See the following articles in Bacon’s Works, viz. Epistle Dedicatory to Queen Elizabeth, prefixed to Elements of the Law;—Proposal for amending the Laws of England, to King James;—Offer to the King of a Digest: 4to Edit. vol. ii. pa. 326, 546, 547, &c.
[6 ]See Lords’ Journals, i. 144. ii. 661. iii. 81. and preface to Coke’s Fourth Report.
[7 ]Lords’ Journ., ii. 661.
[8 ]Vol. ii. 4to. 547.
[1 ]MS. Harl. No. 244.
[2 ]Vol. ii. pa. 346.
[3 ]Miscell. xvii. p. 279.
[1 ]Commons’ Journal. vi. 427.
[2 ]Commons’ Journ. vii. 58, 74, 249, 250.
[3 ]Commons’ Journ. vii. 304.
[4 ]Commons’ Journal, viii. 631.
[1 ]MS. Cott. Titus B. V. p. 269.
[1 ]See page xxvi, n. 12, Statutes of the Realm.
[2 ]Vesp. F. IX. pa. 279.
[3 ]Miscell. Vol. 94. No. 4572. Plut. 19 C. pa. 82.
[1 ]2 Inst. 525; and see also the Prince’s Case 8 Rep. 13, throughout. The creation by Edward III. of his eldest son to be Duke of Cornwall, was by the King’s letters patent, dated at Westminster 17th March, in the 11th year of his reign, and therein recited to be “de coi assensu & consilio Prelatoz, Comitu, Baronu, & alioz de consilio nro in psenti pliamento nro apud Westm die Lune px post festu sci mathie Apli px pterito convocato, existenciu.” The Parliament roll of that year is not now known to exist; but the letters patent are inrolled on the Charter roll of that year, m. 28. nu. 60: other letters patent relating to the Duchy and its rights, dated at Westminster, 18th March in the same year, are entered on the same charter roll m. 26. nu. 53: and others dated at the Tower of London, 3 January in the same year, m. i. nu. i. of the same roll. These letters patent are briefly recited in Rot. Parl. 5 H. IV. nu. 22, and fully in Rot. Parl. 38 Hen. VI. nu. 29.—For other antient grants relating to the Duchy, see Rot. Cart. 11 Edw. III, m. 7. nu. 14: m. 1. nu. 1: and 16 Edw. III. m. 1. nu. 1.
[2 ]4 Inst. 50; and see also Co. Litt. 98 a. b; and the Year Book 7 Hen. VII. 14, 15, 16.
[3 ]On the trial of the Earl of Macclesfield in 1725, before the House of Lords, on an impeachment for extortion in his office, of Chancellor, the entry in Rot. Parl. 11 Hen. IV. nu. 28. of the Petition of the Commons, “that no Chancellor, Judge, &c. should take any Gift or Brocage for doing their office,” to which the King’s Answer, “Le Roi le veut” is subjoined, was produced in evidence on the part of the managers of the impeachment, as a statute, or public Act of Parliament, although not entered on the Statute Roll; and it was also urged in argument, as “common learning,” that the Parliament Roll was the voucher to the statute roll. See State Trials, Vol. VI, 760. the Earl of Macclesfield’s Case; and 3 Inst. 146, 224, 225, where this entry is printed at length, and considered by Lord Coke as an act of Parliament. See also the argument on the jurisdiction of Chancery annexed to Vol. I. of Reports of cases in Chancery, where the necessity and propriety of consulting the petition and answer, or the entry thereof on the Parliament roll, as the warrant for the statute roll, is much insisted on, upon the authority of Sir Francis Bacon, and other eminent lawyers; with reference to the statute 4 Hen. IV. cap. 22. In Rot. Parl. 10 Hen. VI. nu. 20. is a petition of the commons, for settling the payment of the fees and salaries of the King’s Justices, Serjeants, and Attorney, to which is subjoined the King’s answer, “Fiat prout petitur:” In the oldest abridgements of the statutes, title ‘Justices,’ this is abridged as an act of 10 Hen. VI. and called ‘Statutum per se;’ and the abridgement is copied into Rastall’s collection, and it is there noted that “this is not in the printed book of statutes:” The whole is inserted in Cay’s edition of the statutes, as Stat. 2 of 10 Hen. VI. It is observable also, that the Statute 25 Edw. III. ‘pro hiis qui nati sunt in partibus transmarinis’ pa. 310 of the statutes in this volume, is in the old abridgements called ‘Statutum per se:’ and that in those abridgements, Title ‘Excommengement,’ reference is made to an Instrument cited in the earlier editions as of 9 Ed. III and in later editions, as of 8 Edw. III. called ‘Ordinatio per se’ whereby writs were ordained for excommunicating disturbers of the peace of the church and the realm. In the later editions, it is alleged that such writs were framed on a statute 5 Edw. III. st. 2. c. i: Rastall in the early editions of his collection, quoting these abridgements, adds, “But I cannot find anie of these statutes.” See further Rot. Parl. 35 Edw. I: 5 Edw. II: 14 Edw. II. nu. 5, 33: 5 Edw. III. nu. 3, 5, 6: 6 Edw. III. P. 2 nu. 3: 14 Edw. III. P. 2: 20 Edw. III. nu. 11, 45: 25 Edw. III. nu. 10, 16: 28 Edw. III. nu. 13: 36 Edw. III. nu. 35: 38 Edw. III. nu. 9: 40 Edw. III. nu. 8: 42 Edw. III. nu. 9: 46 Edw. III. nu. 13, 43: 2 Ric. II. nu. 62: 3 Ric. II. nu. 39: 6 Ric. II. nu. 53: 8 Ric. II. nu. 31: 20 Ric. II. nu. 29: 5 Hen. IV. nu. 22, 24, 41: 8 Hen. IV. nu. 36: 11 Hen. IV. nu. 23, 63: 6 Hen. V. nu. 27: 8 Hen. VI. nu. 27: 9 Hen. VI. nu. 24: 33 Hen. VI. nu. 43: 38 Hen. VI. nu. 29: and very many other articles, all of which appear to have the same qualities as those of 2 Hen. IV. nu. 28, and 10 Hen. VI. nu. 20. above particularly noticed. See also the instances quoted post, p. xxxvii, note 4. In the old reported statutes from 3 Edw. I. to 1 Jac. I. MS. Harl no. 244 mentioned in p. xxvii of this introduction, the instrument intituled Articuli de Moneta, usually ascribed to 20 Edw. I. is considered as a proclamation not as a statute; and this and some other incidents classed among the antient statutes are reported therein as fit to be repealed, on account of the uncertainty of their validity as statutes.
[1 ]For a statement of the difficulties upon the terms Concilium, &c. as descriptive of Parliament in the early records, according to the doctrine laid down in the Prince’s case, 8 Rep. 20, 2 Inst. 267, and elsewhere, see Prynne’s plea for the Lords and House of Peers, sect. 2, and Prynne, 1st part of an historical collection of the ancient Parliaments of England; Lord Hale’s treatise of the Jurisdiction of the Lord’s House of Parliament, Hargrave’s edit. chap. III; and Luders, Tract. iv. published in 1810.
[2 ]See Pa. xxxvii, and note 4 there.
[3 ]Hale, H. C. L. ch. I. ad fin. And in the Prince’s case 8 Rep. 20 b. it is said, upon the alleged authority of 7 Hen. VII. 14 a, b, and 34 Edw. III. 12, “multa sunt statut, que scribunt, domin Rex statuit; si tamer Rotulo Parliamentario intrentur et semp’ ut act’ Parliament’ approbentur, intendetur hæc authoritat Parliamenti fuisse.”
[4 ]See Co. Litt. 159 b. and the note thereon in the last edition: and 4 Inst. 25.
[5 ]In the British Museum are two copies, donation manuscripts. No. 4489 and 5668, of a manuscript treatise entitled ‘Expenditionis Billarum Antiquitas,’ drawn up apparently by Elsyng, who was Deputy Clerk of the Parliaments in 1620, and for several years afterwards. See also MSS. Harl. 305, 4273, 6585. This work professes to give an historical account of the ancient mode of passing bills in Parliament: it appears from internal evidence to have been written between 1628 and 1640, and to have been designed as a second part of the treatise on parliaments. It is vouched throughout by reference to original petitions and rolls of Parliament, from 4 Edw. III. the earliest known to the writer to exist, to 27 Hen. IV. In this treatise, the form and validity of ordinances, as distinguished from statutes, are stated much at length; and amongst other things it is asserted that an ordinance cannot make new or permanent laws, nor repeal any statute, but that temporary provisions, consistent with the law in force, may be made by way of ordinance; and that an ordinance may be repealed by a subsequent ordinance without statute, see Rot. Parl. 21 Edw. III. nu. 13, 47, 52; 22 Edw. III. nu. 20, 21; 37 Edw. III. P. 1. nu. 37, 38, 39; 45 Edw. III. nu. 24, 25, 37, 40; that the King did forbear to grant those petitions which demanded novel ley, when he had no intent to make a statute. See also Rot. Parl. 22 Edw. III. nu. 30, that the laws had and used in times past could not be changed without making thereon a new statute: and see Rot. Parl. 11 Hen. IV. nu. 63, 13 Hen. IV. nu. 49, that ordinances of Parliament which introduced novel ley were not of any force. In the Parliament 37 Edw. III. it was precisely demanded by the Chancellor, whether the matters then agreed on, being new and not before known or used, should be granted by way of ordinance or statute, and that of ordinance was preferred by the Parliament, for the purpose that if any thing were to be amended, it might be amended at the next Parliament: The ordinance was accordingly entered on the back of the Parliament Roll, and was termed an ordinance in the subsequent Parliament. It is very remarkable, however, that this ordinance is also entered on the Statute Roll, and has always been received as a statute of this year; that penalties inflicted by former statutes were repealed by it; and that words of enactment for statute are expressly used therein. See Rot. Parl. 37 Edw. III. Part 1. nu. 38, 39: 38 Edw. III. nu. 11: 1 Ric. II. nu. 15: Rot. Stat. 37 Edw. III. n. 5, 6: 38 Edw. III. m. 6 d: Chapters 16 and 19 of the statute 37 Edw. III.; and Chapter 2 of stat. 38 Edw. III. Stat. 1. as printed in pages 378, 382, 383 of the statutes in this volume: and further, Rot. Parl. 38 Edw. III. nu. 9, and the ordinances there recited, which were entered on the Statute Roll, and are printed as a statute of that year in all editions, and in page 385 of this volume. See also Prynne’s Irenarchus Redivivus, p. 27, &c. in which, contrary to Lord Coke’s authority, 4 Inst. 25, he lays it down that ordinances and acts of Parliament were one and the same.
[1 ]Lord Hale, H. C. L. ch. I, says this roll “begins with Magna Carta and ends with Edw. III.” This is erroneous; for though part of the roll antecedent to 6 Edw. 1. may have been lost at the time of Lord Hale, there is no reason to conclude that it ever began with Magna Carta: Magna Carta and Carta de Foresta are not entered on this roll prior to 25 Edw. I. and they are accordingly printed as statutes of that year in this collection. There are not wanting authorities which seem to consider the Great Charter, as possessing the validity of a statute from the 1st or the 9th of Hen. III.; before the confirmation of it by the statute of Marlborough, 52 Hen. III. It is so considered by Coke in 2 Inst. 65, 1 Inst. 43a, 81a; in the Prince’s case, 8 Rep. 19; and elsewhere: by Hale H. C. L. ch. 1; and by Blackstone in his introduction to the charters, 4to. pa. xl. 8vo. pa. lxi.: It is also expressly called a statute by Littleton, sect. 108; but this may be referable to its subsequent confirmation by Parliament. Hale’s idea may probably have arisen from supposing it to be on the Statute Roll before 6 Edw. 1. And Coke and Blackstone founded their opinions chiefly upon two judicial decisions cited from Fitzherbert’s Abridgement; (part 2, fo. 120 b. tit. Mordaunc. pl. 23, and Part 1, fo. 188 a. tit. Briefe pl. 881;) the one as of 5 Hen. III. and the other as of 21 Hen. III.; to which may be added another of 23 Hen. III. Fitz. abr. Part 1, fo. 90 a. tit. Assise. pl. 436. These, if of those years respectively, certainly prove that the Great Charter was then considered as the law of the land, but not, absolutely, that it was previously of parliamentary enactment. In the instances of 5 Hen. III. and 23 Hen. III, the phrase “lestatut de Magna Carta” is merely used incidentally by Fitzherbert stating the points adjudged; and there is some ground to think also that the former decision was possibly of a much later period; see the Year Books 38 Hen. VI. 18 and 39 Hen. VI. 19: In the instance of 21 Hen. III. the Great Charter is referred to, not as a parliamentary Act, but as a grant, ‘concessum’ being the word used to denote its authority; which construction, the preamble of the Articuli super Cartas, Stat. 28 Edw. I., and the beginning of chapter 1 of that statute, confirm; though in the Confirmatio Cartarum, Stat. 25 Edw. I. c. 1. which passed during the absence of the King from the realm, it is recited of the two charters “les queles furent faites p comun assent de tut le Roiaume.”—In an admiralty record, quoted by Prynne (Animad. 120) as of 23 Hen. VI., the laws of Oleron are recognized by the term “Statutum.”
[1 ]No notice is taken, at the present day, on the introllment of Acts in chancery, of any commission by which Acts are passed; it is believed that no instance of the entry of any such commission on that inrollment has occurred since the time of Charles I. See in appendix F. subjoined to the introduction, vol. I. Statutes of the Realm, a further account of these inrollments, and a copy of the earliest commission for giving the royal assent.
[1 ]The following minute respecting the mode of framing statutes is extracted from the treatise intituled, ‘Expeditionis Billarum Antiquitas’ quoted in page xxxii, Statutes of the Realm, vol. I, Note 5.
[1 ]See Hale H. C. L. ch. 1, and 3 Keb. Rep. 588. That the royal assent given to a petition did not of itself constitute a statute; see Rot. Parl. 14, E. III. nu. 7: 15 E. III. nu. 42: 17 E. III. nu. 48: 18 E. III. nu. 33, 39: 25 E. III. nu. 12, 13: 37 E. III. nu. 39: 1 Ric. II. nu. 15: 2 Hen. IV. nu. 114: 7, 8 Hen. IV. nu. 60, 66: 13 Hen. IV. nu. 49: 23 Hen. VI. nu. 18, 19: see also Statutes of the Realm, vol. I, pp. xxxi, n. 4; xxxii, n. 5; xxxv, n. 5.
[2 ]The contents of this volume were printed in 1661, by W. Ryley, a clerk in the Record office in the Tower, with an appendix of additional matter, under the title of Placita Parliamentaria. The original manuscript volume is referred to in Rot. Par. 6 Ric. II. P. 2. m. 26. as an authentic book of inrollment, as follows: “D’Exemplific Tykford. Rx Omibz ad quos, &c. saltm. Inspexim tenorem cujusdam pcepti dni E. quondam regis angl fit Regis Henr pgenitoris nri, in quodam libro de pliamentis ejusdem dni E. anno regni sui vicesimo irrotulati in hec verba.” Then follows verbatim the Article ‘De Abbati de Mermonster,’ entered in fo. 36 of the Vetus Codex, and printed in page 102 of Ryley’s Placita Parliamentaria.
[3 ]The journals of the House of Lords commence in I. Hen. VIII.: But of the years 4, 5, 14 & 15, 21, 22, 23, 24, 26 and 27 Hen. VIII., and of the first two sessions in 1 Mary, the journals have not been preserved. In the printed editions therefore, the journals for those years are supplied by copies of, and extracts from, what are there termed the Parliament Rolls, being the inrollments in chancery mentioned above. The Journals of the House of Commons commence in 1 Edw. VI.; But until the beginning of the reign of Elizabeth they contain merely short notes of the several readings of the respective bills before the House, with a few occasional entries only of other proceedings. See further Appendix F, vol. I, Statutes of the Realm.
[1 ]XII., 593 of the first edition; III. 579 of the Paris edition 1723.
[2 ]MS. Harl. No. 5326 and others.
[3 ]Statutes of the Realm, vol. I, p. 37.
[4 ]Ib. p. 123.
[5 ]See Rot. Pat. 43 Hen. III. m. 10; 48 Hen. III. m. 2, d; 53 Hen. III. m. 25, d.
[1 ]Lib. Custum. London; MSS. Harl. No. 79, 3824; MS. Reg. 20 A. VIII. in Mus. Brit.
[2 ]See note at the end of Stat. Westm. 2, pa. 95 of the Statutes of the Realm.
[3 ]Rot. Parl. 36 Edw. III. m. 1. In this year was made the statute (36 E. III. c. 15) that all pleadings in the courts shall be in English.
[4 ]Rot. Parl. 37 Edw. III. nu. 1: 38 Edw. III. nu. 1.
[5 ]Rot. Parl. 5 Ric. II. nu. 1, 2.
[6 ]Petitions in Parl. 10 Ric. II. in Turr. Lond.
[1 ]Rot. Parl. 17 Ric. II. nu. 11.
[2 ]Rot. Parl. 1 Hen. IV. nu. 14.
[3 ]Rot. Parl. 1 Hen. IV. nu. 53, 56.
[4 ]Rot. Parl. 6 Hen. IV. nu. 20.
[5 ]See particularly Rot. Parl. 2 Hen. V. nu. 22.
[6 ]See Stat. 18 Hen. VI. c. 18, 19, as to soldiers, and compare those chapters with the petitions in the Parliament Roll of that year, nu. 62, 63, and with the Writ of Proclamation upon the Close Roll, 18 H. VI. m. 3, 6. The statute is in French, but the petition is in English, and is accordingly so recited in the Proclamation Writ.
[1 ]Petyt Manuscript nu. 8 in the Inner Temple Library; and MS. Hatton 10 No. 4135, in the Bodleian Library. The first of these ends with the statutes of 3 Hen. VII. in French, apparently as from some Statute Roll; or copy thereof. In the latter, which ends with 11 Hen. VII. the statutes of the third year are in French; but those of the fourth and all the following years are in English. The old printed editions of the statutes 1 and 3 Hen. VII. in English, appear to be taken entirely from a Statute Roll; while in the modern editions, some parts of the statutes are manifestly taken from the original acts, or from a Parliament Roll or Inrollment in Chancery.
[2 ]See 2 Inst. 485, as to the two chapters of Stat. Westm. 2, which are in French, although the body of the statute is in Latin. Barrington in his Comments on the Statutum de Scaccario, remarks that when the interests of the clergy are particularly concerned, the statute is in Latin: But on examination, the correctness of this remark may be doubted. See also N. Bacon’s Treatise on Government, Part I. Cap. 56 (pa. 101. 4to Edit. 1760).
[1 ]See Luder’s Essay on the use of the French Language, in our Ancient Laws and Acts of State; Tract. VI. 1810; where it is suggested that many of the Latin statutes were first made in French, and from thence translated into Latin.
[2 ]See the entries of Stat. Glouc. 6 Edw. I. in Register A. preserved in the Chapter House Westminster.
[3 ]See 4 Inst. 26, 28: the Case of Heresy, 12 Rep. 58: 2 Inst. 526: 3 Inst. 41: Hale on Parl. 36: Arg. 1. Ch. Rep. 51, 53. Copies of parliamentary proceedings, or Acts of state, though not statutes, were occasionally proclaimed and published. See the Roll of the Ordinances of the Staple 27 E. III.—Sometimes the knights, citizens, and burgesses were simply charged upon their return into the country to shew and publish to the people the matters agreed on in Parliament. Rot. Parl. 37 E. III. nu. 38.—Sometimes copies were delivered to them of such matters ‘pur ent notifier en soun pavs.’ Rot. Parl. 9 Hen. IV. nu. 27.
[1 ]The last Proclamation Writ entered on the Statute Rolls, is at the end of Stat. 7 Hen. V. ad 1419. Lord Coke, 2 Inst. 526 says the writ continued to issue till the Reign of Henry VII. In printed editions of the statutes, a Proclamation Writ is prefixed to the statutes of 19 Hen. VII.
[2 ]See Commons’ Journals vol. viii, 11th January 1661-2, when it was resolved that a message should be sent to the Lords, requesting “that the original rolls of Acts of Parliament be kept in the office, and not delivered to the printer, but that true copies be delivered to him from the roll, fairly written and carefully examined and attested.”
[1 ]See Irish Acts 12 Edw. IV. c. 2.: 14 Hen. VII. c. I.: 28 Hen. VIII. c. 2. sec. 4: (for the succession of the King and Queen Anne: the clause for proclamation of which is copied from the English Act 25 Hen. VIII. c. 22): 33 Hen. VIII. c. 1. sec. 2. (enacting that the King and his successors, kings of England, should be always kings of Ireland); 14 and 15 Car. II. c. 18 sec. 12.
[2 ]By Stat. 41 Geo. 3 (U. K.) c. 90 sec. 9 it is expressly provided, that the copy of the statutes of England and Great Britain printed by the King’s printer, shall be evidence in Ireland, and that the copy of the statutes in Ireland, printed by the King’s printer, shall be evidence in Great Britain, of the statutes respectively passed, previous to the union between Great Britain and Ireland.