The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

22.

THE SOURCES OF ENGLISH LAW1

By Heinrich Brunner2

A.

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.

B.

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.)

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

(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.

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.

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.

(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.

(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.

(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.

(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.

(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.

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.

C.

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.

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.

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

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.

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.

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.

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.)

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.

[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.

The translation is by Professor Ernst Freund, of the Editorial Committee for these Essays.

An English translation by W. Hastie was published at Edinburgh in 1888, under the title “The Sources of the Law of England,” without indication of the precise edition on which it was founded.

[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.

Other Publications: Zeugen und Inquisitionsbeweis der Karolingischen Zeit, 1866; Das Anglo-normannische Erbfolgesystem, 1869; Die Entstehung der Schwurgerichte, 1872; Zur Rechtsgeschichte der Römischen und Germanischen Urkunde, 1880; Deutsche Rechtsgeschichte, 1887-92, 2d ed. of Vol. I., 1906; Grundzüge der Deutschen Rechtsgeschichte, 1901, 3d ed. 1908; and many separate articles, most of which are collected in Forschungen zur Geschichte des Deutschen und Französischen Rechts, 1894.

[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).