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CHAPTER VII: The Age of Bracton - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 1 
The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 1.
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Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.
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The Age of Bracton
Reign of Henry III.The reign of Henry III. (1216–72) is in the history of our law an age of rapid, but steady and permanent growth. At the end of that period most of the main outlines of our medieval law have been drawn for good and all; the subsequent centuries will be able to do little more than to fill in the details of a scheme which is set before them as unalterable. It is difficult for any historian not to take a side in the political struggle which fills the reign, the simmering discontent, the loud debate and the open rebellion; and the side that he takes will probably not be that of the feeble, wilful and faithless king. But even at the worst of times law was steadily growing. Henry’s tyranny was the tyranny of one who had a legal system under his control; it was enforced by legal processes, by judgments that the courts delivered, by writs that the courts upheld. And on the other side there was little lawlessness. Not only was it in the name of law that the nation rose against the king, but no serious attempt was made to undo the work of his courts and his chancery. If only the nation at large, the universitas regni, could obtain some share in the control over this great machine, its pressure might be patiently borne. But, leaving the political and constitutional events of the reign for others, we, placing ourselves at the end, will make a brief survey of what has been done in the realm of law.
General idea of law.Our English lawyers have no philosophy of law, nor have they pursued very far the question, How does law, or a law, come into being? The opening chapters of Justinian’s Institutes were known. The sentences which define iustitia, iurisprudentia, ius naturale, iusgentium, ius civile, and so forth, were copied or imitated; but, any real knowledge of Roman history being still in the remote future, these sentences served as a check upon, rather than as an incentive to, rational speculation. In practice there is no careful discrimination between ius and lex; the whole mass of legal rules enforced by the English temporal courts can be indicated by such phrases as ius regni,1lex regni,2lex terrae,3ius et consuetudo regni,4lex et consuetudo, leges et consuetudines, lei de la terre, lei et dreit de la terre.5 Of course ius, lex and consuetudo are not in all contexts exactly equivalent words; ius and the French dreit often stand for “a right”;6lex and lei are technically used to signify the various modes of proof, such as the oath, the ordeal, the judicial combat.7 Glanvill and Bracton make some apology for giving the name leges to the unwritten laws of England;8 Bracton can upon occasion contrast consuetudo with lex.9 Of course too it is necessary at times to distinguish a new rule lately established by some authoritative act, from the old rules which are conceived as having been in force from time immemorial. The rule in question has its origin in a royal decree or edict, in a novella constitutio of the princeps,10 in “provisions” made by the king with the common counsel of his prelates and nobles, in an assize, or when we speak in English in an “isetnysse”11 —the word “statute” is hardly yet in common use12 —we may even have to say of some unprincipled rule that it is to be explained only by reference to the will of the legislator.13 But as yet there is no definite theory as to the relation between enacted and unenacted law, the relation between law and custom, the relation between law as it is and law as it ought to be. The assizes of Henry II. have worked themselves into the mass of unenacted law, and their text seems already to be forgotten. On the other hand, the writer of Edward I.’s day, who is known to us as Britton, can represent the whole law as statutory: it all proceeds from the king’s mouth. The king’s justices seem to claim a certain power of improving the law, but they may not change the law.14 The king without the consent of a national assembly may issue new writs which go beyond the law, but not new writs which go against the law.15
Common law.The term common law (ius commune, lex communis, commun dreit, commune lei) is not as yet a term frequent in the mouths of out temporal lawyers. On the other hand, ius commune is a phrase well known to the canonists. They use it to distinguish the general and ordinary law of the universal church both from any rules peculiar to this or that provincial church, and from those papal privilegia which are always giving rise to ecclesiastical litigation. Two examples may suffice. Innocent III. tells the bishops of London and Ely that the guardianship of vacant churches in the diocese of Canterbury belongs to the archdeacon, both by common law and by the general custom of the English church.16 In 1218 papal delegates report that the Bishop of Salisbury asserts a right to the church of Malmesbury both under the common law and by virtue of a papal privilege.17 But in truth the phrase was usual among the canonists, and they had warrant in ancient Roman texts for the use that they made of it.18 From the ecclesiastical it would easily pass into the secular courts. A Bishop of Salisbury in 1252 tells the pope how, acting as a papal delegate, he has decided that the common law makes in favour of the rector of one church and against the vicar of another. The common law of which he speaks is the common law of the catholic church; but this bishop is no other than William of York, who owes his see to the good service that he has done as a royal justice.19 In connexion with English temporal affairs we may indeed find the term ius commune in the Dialogue on the Exchequer: the forest laws which are the outcome of the king’s mere will and pleasure are contrasted with the common law of the realm.20 A century later, in Edward I.’s day, we frequently find it, though lex communis (commune lei) has by this time become the more usual phrase. The common law can then be contrasted with statute law; still more often it is contrasted with royal prerogative; it can also be contrasted with local custom: in short it may be contrasted with whatever is particular, extraordinary, special, with “specialty” (aliquid speciale, especialté).21 When Bracton speaks of common law or common right—and this he does but very rarely—it is to distinguish from rights which have their origin in some specially worded contract or donation, those rights which are given to all men by the law of the land.22 It is not until there is a considerable mass of enacted law, until the king’s exceptional privileges are being defined, until the place which local custom is to have in the legal system is being fixed, that the term becomes very useful, and it is long before the lawyers of the temporal courts will bear the title “common lawyers,” or oppose “the common law” to “the law of holy church.”23
Statute law.The mass of enacted law is as yet by no means heavy. As we have said above, the assizes of the twelfth century seem to be already regarded as part of the unenacted ancient law. No one is at pains to preserve their text. As to the Anglo-Saxon dooms, though men are still at times copying and tampering with the Latin versions of them, they are practically dead, and will remain almost unknown until in the sixteenth century William Lambard unearths them as antiquarian curiosities.24 We have in manuscript many collections of statutes transcribed in the days of the two first Edwards: they seldom, if ever, go behind Magna Carta. That Charter takes its place as the first chapter of the enacted law; but, as is well known, its text is not exactly that which John sealed at Runnymead in 1215.The charters. Important changes were made when it was reissued in 1216; other important changes were made in 1217, and a few minor changes in 1225. The charter granted by Henry in 1225, when he had lately attained his majority, became the Magna Carta of future times.25 He had to confirm it repeatedly. These repeated confirmations tell us how hard it is to bind the king by law. The pages of the chroniclers are full of complaints that the terms of the charter are not observed. These complaints, when they become specific, usually refer to the articles which gave to the churches the right to elect their prelates. If on the one hand the king is apt to regard the charter as a mere promise from which, if this be necessary, the pope will absolve him, on the other hand efforts are made to convert every one of its clauses into a fundamental, irrepealable law. In 1253 with solemn ceremonial the anathema was launched, not merely against all who should break the charter, but also against all who should take any part whatever, even the humble part of mere transcribers, in making or promulgating or enforcing any statutes contrary to the sacred text.26 This theoretical sanctity and this practical insecurity are shared with “the Great Charter of Liberties” by the Charter of the Forest, which was issued in 1217.
Provisions of Merton, Westminster and Marlborough.The first set of laws which in later days usually bears the name of “statute” is the Provisions of Merton issued by the king with the consent of the prelates and nobles in 1236 on the occasion of his queen’s coronation: a few brief clauses amend the law about divers miscellaneous matters.27 From the time of storm and stress we have the Provisions of Westminster to which the king gave a reluctant consent in 1259.28 He did not hold himself bound by them; they never became a well established part of the law of the land; but in 1267, when the revolutionary period was at an end, almost all of them were reenacted with the consent of great and small as the Provisions or Statute of Marlborough.29 These four documents, the two Charters, the Provisions of Merton and of Marlborough, are the only documents of Henry’s reign which are generally regarded in after ages as parts of the written law, though to these we may perhaps add the Dictum of Kenilworth issued in 1266 (an essentially temporary provision relating to the punishment of the insurgents),30 and a writ of 1256, which has sometimes been dignified by the title “the Statute of Leap Year”; it deals with a small matter, the computation of the “excrescent” day of the bissextile.31 But it is only in retrospect that the quantity of legislation that there has been appears so small. As yet there is no easily applicable external test by which we can distinguish the solemn statute from the less solemn ordinance. From Henry’s reign we have neither a “statute roll” nor any “rolls of parliament”; and we have no reason to believe that any such records were kept.32 Copies of the two charters were sent about the country; the only authoritative record that we have of the Provisions of Merton is a writ upon the close roll; the only authoritative records that we have of the Provisions of Westminster are writs upon the close and patent rolls, and upon those rolls and the judicial rolls of the king’s court we find traces of other legislative acts, which for one reason or another did not permanently gain the character of statutes.33
Ordinance and Statute. And if merely formal tests fail us, so also will more material tests. Of course we cannot in dealing with Henry’s day insist that a statute must be enacted with the consent of the three estates of the realm; we may be certain that the third estate was not represented at Merton, and may gravely doubt whether it was represented at Marlborough. On the other hand, we may take it as generally admitted that the king cannot by his mere word make law. If he legislates, this must be by the counsel of the prelates and nobles; even if he ordains, this should be by the counsel, or at least with the witness, of his habitual counsellors.34 But it is not easy to mark off the province of ordinances from the province of laws. In 1253 Henry issued an ordinance for the maintenance of the peace; it contained little, if anything, that was very new. Matthew Paris tells us that he wished to add to it something that was new, foreign, Savoyard. He wished to give to one who was robbed, an action against those whose duty it was to pursue the robbers; apparently he wished to do what his son did successfully by the statute of Winchester. Perhaps he desired to imitate an edict issued by his father-in-law Count Raymond of Provence in 1243.35 But he had to withdraw this part of his decree, because so large a change in the law could not be made without the common assent of the baron-age.36 But between large changes and small, between changes and ameliorations, between laws and rules of procedure, no accurate lines could be drawn.
The king below the law.That the king is below the law is a doctrine which even a royal justice may fearlessly proclaim.37 The theory that in every state there must be some man or definite body of men above the law, some “sovereign” without duties and without rights, would have been rejected. Had it been accepted in the thirteenth century, the English kingship must have become an absolute monarchy, for nowhere else than in the person of the king could the requisite “sovereignty” have been found. But, for one thing, nobody supposed that the king even with the consent of the English prelates and barons could alter the common law of the catholic church. If the theory of sovereignty popular among Englishmen of our own day be pressed upon the reluctant middle ages, the whole of Western Christendom must be treated as one state.38 Theology can be brought in to explain or to conceal any difficulty that there may be in the conception of a king, who though subject to no man, is subject to the law:—God is subject to law, and has even made himself subject to the law for man.39 The practical question is whether there is any mode in which the law can be enforced against the king. That no ordinary process of his courts will touch him is admitted.40 For a while men speculate as to whether in an extreme case the Earl of Chester as count of the palace may not have some coercive power over the king.41 A more acceptable solution, especially when these palatine counts have died out, is that the incorporate realm represented by the baronage may judge the king in his own court, if the worst come to the worst.42 But there is no established orderly method whereby this can be accomplished, and the right to restrain an erring king, a king who should be God’s vicar, but behaves as the devil’s vicar,43 is rather a right of revolution, a right to defy a faithless lord and to make war upon him, than a right that can be enforced in form of law. The result of the barons’ war is to demonstrate that though the king is not above the law, the law has no means of punishing him, and no direct means of compelling him to make redress for the wrongs that he has done.
Unenacted law and custom.The unenacted part—and this is the great bulk—of the law seems to be conceived as custom (consuetudo). The most important of all customs is the custom of the king’s court. The custom may be extended by analogical reasoning; we may argue from one case to another case which is similar though not precisely similar.44 On the other hand, we should be assigning far too early a date for our modern ideas, if we supposed that the law of the thirteenth century was already “case-law,” or that a previous judgment was regarded as “a binding authority”; it would but be an illustration of the custom of the court. Bracton achieved the marvellous feat of citing some five hundred cases from the judicial rolls. But Bracton stands quite alone; his successors Fleta and Britton abbreviate his work by omitting the citations. By some piece of good fortune Bracton, a royal justice, obtained possession of a large number of rolls. But the ordinary litigant or his advocate would have had no opportunity of searching the rolls, and those who know what these records are like will feel safe in saying that even the king’s justices cannot have made a habit of searching them for principles of law. Again, we may see that Bracton had not our modern notions of “authority.” He has told us how he set himself to peruse the ancient judgments of the just because his ignorant and uneducated contemporaries were misrepresenting the law; he appealed from them to the great men of the past, to Martin Pateshull and William Raleigh.45 On rare occasions specific precedents (exempla) may have been alleged in court;46 in Edward I.’s day the pleaders are already citing and “distinguishing” previous cases;47 but as a general rule the judges, assisted by clerks, who were on their way to become judges, would regard themselves as having an implicit knowledge of the consuetudo curiae and would not feel bound to argue about past cases. The justices of the bench would often be fully justified in behaving thus; many of them were experienced men who had worked their way upwards through all the ranks of the king’s court and chancery. And so even the knights who were employed to take assizes in their shires, though they had read no law, would believe that they knew the law and custom applicable to the cases that came before them. Every man who does his duty knows a great deal of law and custom: the difficulty is to persuade him that he does not know everything.48
Local customs.The custom of the king’s court is the custom of England, and becomes the common law. As to local customs, the king’s justices will in general phrases express their respect for them.49 We see no signs of any consciously conceived desire to root them out.50 None the less, if they are not being destroyed, their further growth is checked. Especially in all matters of procedure, the king’s court, which is now obtaining a thorough control over all other courts, is apt to treat its own as the only just rules.51 A heavy burden of proof is cast upon those who would apply other rules; they must be prepared to show not merely that a local tradition is in their favour, but that this tradition has borne fruit in actual practice and governed the decisions of the local courts.52 The instances that we get of customs peculiar to counties or other wide tracts of land, such as the episcopal barony of Winchester53 or the honour of Britanny,54 are of no great importance. The law about frankpledge, the law about the presentment of Englishry, may be somewhat differently understood in the various parts of England; and in the north there prevail certain forms of land tenure which are hardly to be found in the south:—but this is a small matter. The county courts are held under the presidency of sheriffs who will ask advice from Westminster when difficult cases come before them.55 Every manor will indeed have its own customs, and to the unfreemen these customs will be very important; such rights as they have against their lords, save the bare right to life and limb, will be but customary and will not be acknowledged by the general law nor sanctioned by the king’s court. Still these manorial usages are not so various as we might have expected them to be. If a custumal be put into our hands, only after a minute examination of it shall we be able to guess whether it comes from the west or from the east, from Somersetshire or from Essex. The great estates of the great nobles have been widely dispersed; the same steward has travelled throughout England holding all his lord’s courts, reducing their procedure to uniformity, and completing in a humbler sphere the work of the king’s itinerant justices.56 When the time comes for the king’s courts to protect that villein tenure which has become copyhold tenure, there will be little difficulty about the establishment of a set of uniform rules which will serve as a “common law” for copyholds. Within the walls of a chartered borough peculiar customs can grow vigorously, for the charter will serve to protect them against the meddling of the king’s justices. The consuetudo of the borough will be the lex of the borough, and sometimes it will be solemnly committed to writing.57 But even here there is less variety than we might have looked for. The aspiring town was often content to receive as a privilege the custom of some famous borough, Winchester or Bristol or Oxford, and thenceforward in case of doubt it would send to its mother town for an exposition of the rules that should guide it.58 On the whole, the local variations from the general law of the land are of no great moment, and seldom, if ever, can we connect them with ethnical differences or with remote history. We can no longer mark off the Danelaw from Mercia or Wessex; we hear of little that is strange from Cornwall or from Cumberland. The strong central power has quietly subdued all things unto itself. It has encountered no resistance. No English county ever rebels for the maintenance of its customary law.
Kentish customs.Kent is somewhat of an exception; it has a considerable body of customs; there is a lex Kantiae.59 In Edward I.’s day a written statement of these customs was sanctioned by the king’s justices in eyre.60 In the main they are concerned with the maintenance of a peculiar form of land-tenure known as gavelkind. The name seems to tell us that the chief characteristic of that tenure is or has been the payment of gafol, of rent, as distinguished from the performance of military service on the one hand and of agricultural labour on the other.61 There is in Kent a large class of landholders, who are not knights, who are not gentle folk; they pay rent to their lords; their tenure is protected by law; they are not burdened with “week work.” They are freemen; indeed in Edward I.’s day it is said that every one born in Kent is born free.62 The customs of Kent are, at least for the more part, the customs of these gavelkinders; customs which fall within the province of private law, which regulate the wife’s dower and the husband’s curtesy, which divide the dead tenant’s land among all his sons, showing however a certain preference for the youngest, which determine the procedure that the lord must adopt if his rent be in arrear, and which, contrary to the general law, allow the sons of the hanged felon to inherit from him. Thus the task of accounting for the lex Kantiae is that of explaining a passage in the social and economic history of England, and a difficult passage. There is little in Domesday Book that marks off Kent from the surrounding counties, little indeed to make us think that at the date of the survey it was a peculiarly free county, that it was as free as the shires of the Danelaw.63 We shall hardly find an answer to our question in the fact that the churches held wide lands in Kent: church lands are not the lands on which as a general rule we find many freeholders or many freemen. No doubt some traits in the Kentish customs may be described as archaic—they enshrine Old English proverbs, and a legend grew up telling how the men of Kent had made special terms with the Conqueror—but probably we shall do well in looking for the explanation of what has to be explained to the time which lies on this side of the Conquest.64 Kent is no mountain home of liberty, no remote fastness in which the remnant of an ancient race has found refuge; it is the garden of England, of all English counties that which is most exposed to foreign influences. The great roads which join London to the seaboard are the arteries along which flows money, the destructive solvent of seignorial power. The tillers of Kentish soil can maintain their ancient or obtain new liberties, because their lords have learnt to want money and will rather have current coin than manorial rights. The gavelkinders are prosperous; they purchase a royal charter from Henry III.65 There is general prosperity in Kent: even the knights of the county are anxious that the lex Kantiae should be observed.66 All classes in the county seem to be bound together by a tie of local patriotism. They feel that they are better off than other Englishmen are.67 In course of time there must be “treatises on gavelkind” and learned books on “the tenures of Kent,” for when once a district has established an exemption from certain of the ordinary rules of law, the number of the rules from which it is exempt will be apt to grow.68 But on the whole, the brief Kentish custumal of the thirteenth century is only a small exception to the generality of the common law.
Englishry of English law.English law was by this time recognized as distinctively English, and Englishmen were proud of it. From time to time rumours went round that the king’s detestable favourites were going to introduce foreign novelties from Poitou or Savoy. In a case for which no English precedent could be found our king’s court refused to follow foreign, presumably French, precedents.69 But the main contrast to English law was to be found in the leges et canones. Bracton, having probably taken some Italian legist at his word, entertained the belief that in almost all countries the leges scriptae prevailed, and that only England was ruled by unwritten law and custom.70 This was a mistake, for the Roman jurisprudence was but slowly penetrating into northern France and had hardly touched Germany; but it served to make a great contrast more emphatic: England was not governed by the leges scriptae. All men know how at the Merton parliament the assembled barons declared with one voice that they would not change the laws of England.71 Perhaps we do well to treat this as an outburst of nationality and conservatism. English law is to be maintained because it is English, for as to the specific question then at issue, namely, whether bastards should be legitimated by the marriage of their parents, we should hardly have suspected our barons of having a strong and unanimous opinion on so arguable a point. Curiously enough in the very next year the Norman exchequer decided to follow the church’s rule, perhaps by way of showing that, despite King Henry’s claims, the breach between Normandy and England was final.72 But it is by no means impossible that the celebrated Nolumus expresses a professional as well as a national conservatism; at any rate it was no baron but a lawyer, an ecclesiastic, a judge, Bracton’s master, William Raleigh, who had to meet the clerical forces and to stand up for English practice against the laws and canons and consensus of Christendom.73
Equity.Of “equity” as of a set of rules which can be put beside the rules of “law,” or of courts whose proper function is the administration, not of law, but of equity, we shall hear nothing for a long time to come. We must however remember, first, that a contrast between aequitas and rigor iuris is already a part of what passes as philosophical jurisprudence, and secondly, that our king’s court is according to very ancient tradition a court that can do whatever equity may require. Long ago this principle was asserted by the court of Frankish kings and, at all events since the Conquest, it has been bearing fruit in England.74 It means that the royal tribunal is not so strictly bound by rules that it cannot defeat the devices of those who would use legal forms for the purposes of chicane; it means also that the justices are in some degree free to consider all the circumstances of those cases that come before them and to adapt the means to the end. In the days of Henry II. and Henry III. the king’s court wields discretionary powers such as are not at the command of lowlier courts, and the use of these powers is an exhibition of “equity.” Often on the plea rolls we find it written that some order is made “by the counsel of the court” (de consilio curiae). It is an order that could not be asked for as a matter of strict right; the rigor iuris does not dictate it—would perhaps refuse it; but it is made in order that the substantial purposes of the law may be accomplished without “circuity of action.”75 The need of a separate court of equity is not yet felt, for the king’s court, which is not as yet hampered by many statutes or by accurately formulated “case law,” can administer equity.
The king’s courts.In the middle of the thirteenth century the high courts that do justice in the king’s name are rapidly taking what will long be their final form. When in 1875 a Supreme Court of Judicature once more absorbs them, the Court of King’s Bench, the Court of Common Pleas, the Court of Exchequer and the Chancery will be able to claim some six centuries of existence as distinct and separate courts.76 To fix precisely the exact moment at which one court became two or more courts, is perhaps impossible, for “court,” as our modern statute book would amply prove, is a term that cannot easily be defined. In dealing, however, with the thirteenth century and the later middle ages we might be justified in saying that each of the high courts of the realm must have a set of rolls that is its own and a seal that is its own. A continuous memory of all that it has done seems the essence of a court’s identity, and this memory takes the shape of a continuous series of written records.
The exchequer.At what we may call an early time the exchequer ceased to be a phase of the general governing body of the realm, and became a department, with a seal and many records of its own, a financial department.77 In Bishop Richard’s Dialogue we still see all the great ones of the kingdom seated round the chess-board. The chief justiciar is there and the chancellor of the realm. Gradually they withdraw themselves from the ordinary work of the board, though they may attend it on special occasions. The treasurer becomes its president; its seal is kept by the chancellor of the exchequer, an officer who first appears in Henry III.’s reign, and the writs that it issues are tested by the senior baron;78 as yet there is no “chief baron.”79 From the beginning of the reign onwards men are definitely appointed to be barons of the exchequer.80 They are chosen from among the king’s clerks, but they keep the old title and are sufficiently the “peers” of the barons of the realm to enable them to inflict amercements on noble offenders. The treasurer is the head of the court whatever it may be doing. The position of the chancellor of the exchequer is subordinate; he keeps the seal of the court, and his accounts may serve to check the treasurer’s, but apparently the acts of the court are always attributed to the treasurer and barons.81
Work of the exchequer.The exchequer is called a curia.82 In our view it may be a compound institution, in part a judicial tribunal, in part a financial bureau. The process which in course of time will divide a great “government office” known as the treasury from the court of law held before a chief baron and other barons, has not as yet gone far. The duty of issuing the king’s treasure is performed by the treasurer with the assistance of the deputy chamberlains—already the chamberlainships have become hereditary sinecures83 —and in this matter he is not controlled by the barons. But then in this matter he has little discretion, for he dares issue no penny save in obedience to an order which comes to him under the great or the privy seal; even for every payment of an annual salary he requires such a warrant from above.84 There was, however, some rivalry between the two departments, and during some late years of Edward I.’s reign the treasurer, rather than the chancellor, was the king’s first minister.85 The main work of the court or board over which he presides is that of collecting the king’s revenue. It receives and audits the accounts of the sheriffs and other collectors; it calls the king’s debtors before it, hears what they have to say, investigates the truth of their allegations, grants them an acquittance or issues process against them, “according to the customs and usages of the exchequer.” We may perhaps call it an administrative tribunal. If questions of fact or questions of law arise, it ought to judge impartially between the king and his subjects; but still its duty is to get in what is due to the king, and to do this spontaneously without waiting for any external impulse. It is a revenue board which hears and decides. Then also it is often empowered to give relief against the king. Not that a subject can bring an action against the king either here or elsewhere, but when a man thinks that he has a claim against the king, either in respect of some money that the king owes him, or in respect of some land that the king has seized, he will (this is the common practice of Edward I.’s day) present a petition to the king and council, and a favourable response to this petition will generally delegate the matter to the treasurer and barons and bid them do what is right.86 If a question of general law is involved, they will often be told to associate with themselves the justices of the two benches, for they themselves are supposed to know rather “the course of the exchequer” than the common law of the land. However, during our period we may see an irrepressible tendency at work which will give them a power to adjudicate in personal actions between subject and subject. In Edward’s reign they are often forbidden to do this, but they do it; and in so doing they may be rather striving to retain old powers, powers that had been exercised by the exchequer when it was a phase of the as yet undifferentiated “curia,” than to usurp a new function. We are at a loss to account on the one hand for the offence that they thus gave to the community of the realm, and on the other for the persistent recourse to their tribunal of creditors who might have gone elsewhere, unless it be that a creditor might thus obtain the advantage of some of those expeditious and stringent processes which had been devised for the collection of crown debts. In the end, as is well known, the exchequer triumphed under the cover of fictions; but this victory belongs to a later time than that of which we are speaking.87
The chancery.Men are beginning to speak of the chancery as a curia;88 but even in Edward I.’s reign it is not in our view a court of justice; it does not hear and determine causes. It was a great secretarial bureau, a home office, a foreign office and a ministry of justice. At its head was the chancellor, who, when there was no longer a chief justiciar of the realm, became the highest in rank of the king’s servants. He was “the king’s secretary of state for all departments.”89 Under him there were numerous clerks. The highest in rank among them we might fairly call “under-secretaries of state”; they were ecclesiastics holding deaneries or canonries; they were sworn of the king’s council; some of them were doctores utriusque iuris; they were graduates, they were “masters”; some of them as notaries of the apostolic see were men whose “authenticity” would be admitted all the world over.90 Very little was done by the king that was not done by a document bearing the great seal; it was “the key of the kingdom.”91 The exchequer and the two benches had indeed seals and could issue writs running in the king’s name, writs, for example, summoning juries, coercing contumacious litigants or carrying judgments into effect; but the province of such writs was not very wide, and it was a very general rule that no action could be begun in the king’s courts and that no action touching freehold could be begun anywhere without an “original” or (as we might say) “originating” writ, which proceeded from the chancery and served as the justices’ warrant for entertaining that action.92 During the course of Edward’s reign writs under the privy seal became common; but the king was constrained to promise that no writ which concerned the common law should issue under that seal,93 and very many of the writs thus authenticated were addressed to the chancellor and did but bid him set the great seal to some instrument which would be the final expression of the king’s will.94 Confidential clerks or “secretaries,” (for this word was coming into use) were beginning to intervene between the king and his chancellor, sending to him written, or carrying to him oral messages.95 The chancellor was now a man of exalted rank, and, though theoretically the chancery “followed the king,” still as a matter of fact it often happened that the king was at one place while the chancellor was at another.96 In its final form almost every message, order or mandate that came, or was supposed to come, from the king, whether it concerned the greatest matter or the smallest, whether addressed to an emperor or to an escheator, whether addressed to all the lieges or to one man, was a document settled in the chancery and sealed with the great seal. Miles of parchment, close rolls and patent rolls, fine rolls and charter rolls, Roman rolls, Gascon rolls and so forth, are covered with copies of these documents,97 and yet reveal but a part of the chancery’s work, for no roll sets forth all those “original” writs that were issued “as of course.”98
The original writs.The number of writs which were issued as of course for the purpose of enabling those who thought themselves wronged to bring their cases before the law courts, increased rapidly during the reign of Henry III. A “register of original writs” which comes from the end of that period will be much longer than one that comes from the beginning.99 Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry’s early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover.100 Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. Elaborate glosses overlaid the king’s promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not easily drawn.101 That the poor should have their writs for nothing, was an accepted maxim.102 The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors (cursarii); it consisted chiefly of filling with names and sums of money the blanks that were left in the forms that they found in their registers; but some clerk of a higher grade seems to have been responsible for every writ.103 No finality was as yet ascribed to the register; it was not regarded as an exhaustive scheme of justice to which no addition could be made save by definite legislation, though a common form, when once settled, was not to be lightly tampered with. New writs could be made, at all events if they were “personal”, not “real”—any innovation “touching freehold” was a more serious matter—and they were made somewhat freely.104 To take the best example, towards the close of Henry’s reign the action of trespass, which is full of future history, becomes common somewhat suddenly. The chancery had not yet fallen so far apart from the courts of law that the justices could not get new writs made if they wanted them. In manuscript registers we find a group of new writs ascribed to William Raleigh who was for a while the foremost judge in the king’s court.105 For some years before the barons’ war Henry attempted to govern without a chancellor or with a chancellor who was such only in name;106 his chancery was no serious obstacle to his will and pleasure, though now and again even a vice-chancellor might resign rather than set the seal to a document that he regarded as illegal.107 Complaints against new and unaccustomed writs grew loud.108 The discontented prelates and barons demanded a real chancellor and one sworn to issue no writs, save “writs of course,” without warrant from the baronial council.109 Under Edward I. two different causes tended to give stability and finality to the cycle of original writs. On the one hand, it became apparent that to invent new remedies was to make new laws, and events were deciding that only in a parliament of the three estates could new laws be made: even when the king was concerned, the list of actions was to be a closed list.110 On the other hand, chancery and chancellor had grown in dignity. There were great chancellors who were usually the king’s first ministers. The chancery was by this time independent of the “benches.” The days when the chancellor would often sit among the justices were passing away, the days for stiff official correspondence between the courts and the chancery had come.
The chancery not a tribunal.It is but rarely that we hear of the chancery or the chancellor performing any work that can fairly be called judicial. The issuing of the “original” writs was not judicial work, though we may learn from petitions addressed to the chancellor and from other sources that it was not always done mechanically: a friend of the chancellor might hope for a few words in his writ that a stranger would hardly have obtained.111 Of any “equitable jurisdiction” exercised in the chancery we hear nothing; the king’s justices still believe that they can do what equity requires. But even of what afterwards became the “common law jurisdiction” of the chancery, the jurisdiction of its “ordinary” or “Latin side” we hear very little. In later days that jurisdiction was concerned chiefly, though not solely, with cases in which a subject required some relief against the king.112 In the latter half of the thirteenth century a subject who has aught against the king has, at least as a general rule, but one course open to him. He presents a petition to the king or the king and his council. This may come before the king himself, or before a full meeting of the council, or before a select body of councillors assigned to deal with such petitions as can be easily disposed of. If he gets a favourable answer, this—since as yet he has shown but some plausible case for relief—will in general send him before some tribunal which will be instructed by a writ from the chancery to hear his claim and do what is just. Commonly that tribunal is the exchequer, which may be afforced for the occasion by the presence of the chancellor and the justices; sometimes it is one of the benches. Occasionally, but rarely, the chancellor is appointed to hear and decide the cause.113
The two benches. The king’s court—to say no more of the exchequer and the chancery—has been slowly breaking up into three tribunals; there is a Common Bench, a King’s Bench, and a yet higher court, which in the days of Edward I. we may indifferently call the King in Council or the King in Parliament. A cleft began to appear when Henry II. in 1178 appointed certain justices to sit permanently in his court and hear the complaints of all men, but reserved the more arduous cases for himself and the wise men of the realm.114 It disappeared for a while under the absentee Richard; it reappeared under John, who travelled through the country with justices in his train while other justices remained on “the bench” at Westminster.115 Again it disappeared for a while during the minority of Henry III.; we can see no permanent, central tribunal save that held by “the justices of the bench” who sit term after term at Westminster, though the council of regency may in some sort supervise their work. It begins to reappear and this time for good and all when Henry is of full age and does justice in person. From the year 1234 onwards—but the exact date can hardly be fixed—there are two different courts, each of which has its own set of rolls.116 The one is held before the justices of “the bench” who sit at Westminster, its records are the “de banco rolls”; the other follows the king, its records are the “coram rege rolls.” A litigant summoned before the one is told to come “before our justices at Westminster”; if summoned before the other, he must appear “before us wheresoever we shall be in England.” And then the Great Charter has decreed that “common pleas” are not to follow the king, but are to be heard in some certain place.117 Thus “the bench” has become the appropriate tribunal for ordinary civil suits between subject and subject. The complementary rule, which assigns the “pleas of the crown” to the court held coram rege, seems to grow up gradually and not to be the outcome of legislation.118 The court held coram rege is superior to, for it can correct the errors of, “the bench.”119 Then early in Edward I.’s reign “the bench,” though in formal documents it will keep its old name and until 1875 be simply “the bench,” begins to be called the Common Bench, and the name of King’s Bench is given to the court that is held coram rege, or rather to one offshoot of it.120
Council, parliament and benches.We have to state the matter thus, for the court that during Henry’s reign is held coram rege breaks into segments. For ordinary purposes it is a court held by a few professional justices; but at any moment it may become a fuller and grander tribunal; the king may be there with his councillors; all the prelates and barons of the realm may be assembled. But whatever form it takes, it seems to be considered as essentially but one tribunal, “the court of our lord the king held before the king himself.” In modern terms we might say that the court held before the king in parliament and the court held before the king in council are the court of king’s bench raised to a higher power. In Edward I.’s reign there comes a further change. The term “king’s bench” is brought into use to signify the court held theoretically coram rege by the professional justices, and just about the same time a third set of plea rolls begins to appear. Besides the “de banco rolls” and the “coram rege rolls” there are those records which we know as the “parliament rolls”; the earliest extant roll comes from the year 1290. For some time to come, however, the cleft is not very deep; the same plea that is found on a parliament roll may be found also on a coram rege roll.121 For judicial purposes the parliamentary sessions of the council can be conceived as strengthened, as “afforced,” sessions of the king’s bench. All the justices and all the chiefs of the great offices, all the masters in chancery and so forth, are members of the council, and, if they are not wanted elsewhere, will be summoned to those plenary sessions of the council that are known as “parliaments.” There remain in suspense many questions as to the composition and jurisdiction of this highest of all tribunals. Is that tribunal to be the assemblage of prelates and barons, or is it to be the king’s council; is it to be but a court of second instance, or is it to have any original jurisdiction? The fourteenth century must answer these questions; the thirteenth leaves them open.122
Itinerant justices.As to the courts held in the king’s name by men who are acting under temporary commissions, men who in a large sense of the term are “itinerant justices,” we must say but little, though were we to descend to details much might be said, for the king’s power to issue commissions has hardly a limit in law, but few limits in custom, and new needs are being ever and anon met by new devices. But we may distinguish the main types of these commissions. What seems treated as the humblest is the commission to deliver a gaol. This in the latter part of Henry III.’s reign is done very frequently; generally it is done by some three or four knights of the shire, and thus, long before the institution of justices of the peace, the country knights had been accustomed to do high criminal justice.123 In order to dispose of the possessory assizes of novel disseisin and mort d’ancestor, a vast number of commissions were issued in every year. Early in Henry’s reign this work was often entrusted to four knights of the shire; at a later time one of the permanent justices would usually be named and allowed to associate some knights with himself. Apparently a justice of assize had often to visit many towns or even villages in each county; his work was not all done at the county town.124 It must have been heavy, for these actions were extremely popular. In the second year of Edward’s reign some two thousand commissions of assize were issued.125 Just at that time the practice seems to have been to divide England into four circuits and to send two justices of assize round each circuit; but a full history of the circuits would be intricate and wearisome. Above all the other commissions ranked the commission for an iter ad omnia placita, or more briefly for an iter or eyre. An eyre was by this time a long and laborious business. In the first place, if we suppose an eyre in Cambridgeshire announced, this has the effect of stopping all Cambridgeshire business in the bench. Litigants who have been told to appear before the justices at Westminster will now have to appear before the justices in eyre at Cambridge. There is no business before the bench at Westminster if an eyre has been proclaimed in all the counties.126 Then, again, the justices are provided with a long list of interrogatories (capitula itineris) which they are to address to local juries. Every hundred, every vill in the county must be represented before them. These interrogatories—their number increases as time goes on—ransack the memories of the jurors and the local records for all that has happened in the shire since the last eyre took place some seven years ago; every crime, every invasion of royal rights, every neglect of police duties must be presented.127 The justices must sit in the county town from week to week and even from month to month before they will have got through the tedious task and inflicted the due tale of fines and amercements.128 Three or four of the permanent judges will be placed in the commission; with them will be associated some of the magnates of the district; bishops and even abbots, to the scandal of strict churchmen, have to serve as justices in eyre.129 Probably it was thought expedient that some of the great freeholders of the county should be commissioned, in order that no man might say that his judges were not his peers. An eyre was a sore burden; the men of Cornwall fled before the face of the justices;130 we hear assertions of a binding custom that an eyre shall not take place more than once in seven years.131 Expedients were being adopted which in course of time would enable the justices of assize to preside in the country over the trial of actions which were pending before the benches; thus without the terrors of an eyre, the trial of civil actions would take place in the counties and jurors would no longer be called to Westminster from their remote homes. But these expedients belong for the more part to Edward’s reign; under his father a jury wearily travelling from Yorkshire or Devonshire towards London must have been no very uncommon sight.132
Triumph of royal justice.The king’s courts have been fast becoming the only judicial tribunals of any great importance. Throughout the reign the bulk of their plea rolls increased at a rapid rate. Every term the bench at Westminster entertained a multitude of causes. The litigants who came before it were often men of lowly rank who were quarrelling about small parcels of land. Though we hear some bad stories of corrupt and partial judges,133 it is plain that this powerful, central tribunal must have been well trusted by the nation at large. Rich and poor alike would go to it if they could. The local courts were being starved, and this result we cannot ascribe altogether to the ambition or greed of the lawyers at Westminster. Of his own free will the small freeholder passed by his lord’s court and the county court on his way to the great hall. He could there obtain a stronger and better commodity than any that was to be had elsewhere, a justice which, as men reckoned in those days, was swift and masterful; he could there force his adversary to submit to a verdict instead of finding that his claim was met by some antique oath with oath-helpers. The voice of the nation, or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts;134 it asked that the royal court should be endowed with yet new and anti-feudal powers; it was to be in all temporal causes supreme.135 Men were fast coming to the opinion that it ought to be, in Bentham’s phrase, “omnicompetent,” and that for every wrong there should be a remedy in the court of their lord the king. This is not an idea that is imposed from above upon an unwilling people. Bracton himself, the royal judge, the professional lawyer, does not thrust it forward as an obvious principle. He explains or even apologizes for certain manifestations of kingly justice which may seem to be at variance with feudal rules.136 But still this principle is at work: it is the king’s business to provide a competent remedy for every wrong.137
The judges.The number of the justices whom Henry kept in his pay was never large. If there were some three or four in his train to hold the pleas coram rege, some four or five at “the bench,” and three or four barons in the exchequer, this was enough. During the last years of the reign “the bench” seems to have but three, or even but two, occupants.138 These judges are very truly the king’s servants; he can move them about as seems best to him or dismiss them at a moment’s notice. By slow degrees the work of hearing and deciding causes is being disengaged from governmental business. The office of a chief justiciar who is both the king’s prime minister and the president of the highest law court became extinct. Even Hubert de Burgh had hardly filled the place of Lucy and Glanvill, of Hubert Walter and Geoffrey Fitz Peter, for he seldom sat on the bench. For a short while after his fall in 1232 the justiciarship was committed to a lawyer, to Stephen Segrave; but from 1234, when Segrave was disgraced and dismissed, until 1258, when the time of revolution was at hand, the justiciarship was in abeyance. The title was then revived and borne for a season by Hugh Bigot, Hugh le Despenser and Philip Basset, whose names represent the alternating fortunes of contending factions. At last in 1268 Robert de Brus, the future “competitor” for the crown of Scotland, was appointed “chief justiciar to hold pleas before the king”; and the words thus added to the old title signified that only for judicial purposes was he to be chief justiciar.139 With him began the new line of the chief justices of England who are but the presidents of a law court, and about the same time the presiding judge at “the bench” or “the common bench” began to be formally styled its chief justice.140 It was no long er expected of the judge that he should be a statesman, or of the statesman that he should be expert in the law. We hear indeed complaints that the king puts unworthy and ignorant men upon the bench, men who will do just what he wants; but some of the judges of Henry’s reign were known to their contemporaries merely as great lawyers and seem to have earned the respect of all parties in the state.141
Clerical justices.Many of them were ecclesiastics; among such we may reckon Martin Pateshull, William Raleigh, Robert Lexington, William of York, Henry of Bratton. Even Stephen Segrave seems to have had enough of the clerk about him to serve as a shield against temporal justice.142 Bishops no longer steadily sat in the law courts, though they might now and again appear as justices in eyre; but canonries, deaneries and even bishoprics were still to be earned by good service on the bench; William Raleigh thus won the see of Norwich and William of York the see of Salisbury. However, all this was becoming somewhat scandalous; the clergy were being forbidden by the law of the church to study temporal law or decide temporal causes.143 Before the end of the reign the lay element among the king’s judges is beginning to outweigh the ecclesiastical; Thomas Multon and Roger Thurkelby are laymen who make names for themselves as learned justices;144 but even of Edward I.’s justices not a few were clerks. This is no small change; it means that the study of English law is falling apart from all other studies. Just at the same time a class of advocates who practised in the king’s courts was forming itself. Some of Edward’s judges had practised at the bar of his courts; his father’s judges seem for the more part to have worked their way upwards as clerks in the courts, in the exchequer, in the chancery.145 The change brought good with it and evil. Our judges became a little less dependent on the king than they had been; our law was protected against Romanism and our constitution against the monarchical doctrines that Romanism might have brought with it. On the other hand, law was divorced from literature; the age for law reports, for Year Books, had come; the age for a great exposition of English law had gone by. Happily in the fulness of the time the work had been done.
Bracton.Bracton’s book is the crown and flower of English medieval jurisprudence. What we know of its author has been written elsewhere, and may here be summed up very briefly.146 His name was Henry of Bratton; he was a Devonshire man, and in all likelihood he began his career as William Raleigh’s clerk. In 1245 he was already a justice in eyre and was holding a dispensation granted by Raleigh and confirmed by Innocent IV. for the tenure of three benefices. From 1248 until his death in 1268 he steadily took assizes in the south-western counties. From 1248 to 1257 or thereabouts he was among the justices who held pleas coram ipso rege: in other words, he was a justice of the nascent court of King’s Bench, and the very highest places in church and state must have seemed to be open to him. We may see him witnessing the king’s charters along with the great folk of the realm. Shortly after this, however, he appears to have retired or been dismissed from his position in the central court, though to his dying day he acted as a justice of assize. In 1259 he became rector of the Devonshire parish of Combe-in-Teignhead, in 1261 rector of Bideford, in 1264 archdeacon of Barnstaple, and in the same year chancellor of Exeter cathedral. Thus he seems to have left the king’s court just at the time when the revolutionary movement that preceded the barons’ war came to its first crisis; and just about the same time he was told to restore to the treasury the large store of plea rolls, those of Martin Pateshull and William Raleigh, which had been in his possession. Whether he was disgraced, and, if so, whether he had offended the king or the barons, we cannot as yet decide. In the last year of his life, in 1267, he appeared once more in a prominent place; he was a member of a commission of prelates, magnates and justices appointed to hear the complaints of “the disinherited”: that is, of those who had sided with Simon de Montfort.
His book.His is an unfinished book; we do not know that it was published in his lifetime. The main part of it seems to have been written between 1250 and 1258, the time when he had to surrender the plea rolls; apparently he was still glossing and annotating it at a later time; but at present we cannot always distinguish his own addiciones from those of later commentators. A “note book” has come down to us which seems to have been his. It contains some two thousand cases copied from the rolls of Pateshull and Raleigh, over against some of which marginal notes have been written; to all appearance they came from Bracton’s hand or from Bracton’s head.147
Character of Bracton’s work.Romanesque in form, English in substance—this perhaps is the best brief phrase that we can find for the outcome of his labours; but yet it is not very good.148 He had at his command and had diligently studied the works of the famous Italian lawyer,Italian form. Azo of Bologna; he also made some use at first hand of various parts of the Corpus Iuris Civilis, of the Decretum, and of the Decretals, and he levied contributions from the canonist Tancred. His general idea of a law book, of the method by which law should be expounded and legal principles harmonized, has been derived from these sources. He has borrowed from them large maxims, such as might well be conceived as parts of universal and “natural” law; he has borrowed some more specific rules, for the more part such as deal with matters of rare occurrence in England; he is guilty of a few classical pedantries and sometimes uses foreign terms instead of those that were current in the courts. It is highly probable that if many of his fellows on the bench had shared his bent, the romano-canonical jurisprudence would have become a “subsidiary law” in England: that is, a law to be adduced when enacted law and customary law had no clear answer for a question; but we cannot treat his book as a proof that such was the case in his own day.149 We do not know that any of his fellows had more than that superficial acquaintance with the law of the church which was common among ecclesiastics: they might be archdeacons, they might hope to be bishops, but the judicial functions of bishops and archdeacons were by this time commonly delegated to their professionally learned “officials.” But further, his own knowledge of Roman law was by no means very deep when judged by the standard of his time, and we have little reason for believing that he had acquired it academically. His neology leaves no mark on the technical language of the courts; the “tenant for term of years” does not become an “usufructuary”; and if upon a plea roll we find a litigant made to talk about the corpus and animus necessary for possession, we shall find that the roll is Bracton’s own.150 Still Bracton’s debt—and therefore our debt—to the civilians is inestimably great. But for them, his book would have been impossible; but for them, as the fourteenth century will show us, some beggarly collection of annotated writs would have been the best that we should have had from him; we should have missed not only the splendid plan, the orderly arrangement, the keen dilemmas, but also the sacerdotal spirit of the work.151
English substance.On the other hand, the main matter of his treatise is genuine English law laboriously collected out of the plea rolls of the king’s court. He expressly cites some five hundred decisions, and whenever we compare his treatise with the records—and this can now be done at innumerable points—he seems to be fairly stating the practice of the king’s court. No doubt our modern, our very modern, conception of rigorous “case law” was far from his mind. He assumed a much larger liberty of picking and choosing his “authorities” than would be conceded now-a-days to an English text-writer. But still his endeavour is to state the practice, the best and most approved practice, of the king’s court, and of any desire to romanize the law we must absolutely acquit him. To take the most obvious instance, in the controversy about the legitimation of bastards he is as staunch an opponent of the leges and canones as the most bigoted baron could be, and indeed we find some difficulty in absolving him or his teachers from a charge of having falsified history in order to secure a triumph for English law.152 The few political inclinations that we can detect in his book are those of a royal justice; they are anti-feudal and anti-ecclesiastical leanings. He will maintain the state against the feudal lords, the kingly power against seignorial justice, and pious churchman, dutiful son of the pope, though he be, he will maintain the state against the church. As to the flagrant disputes between the king and the incorporate realm, the universitas regni, perhaps his mind fluctuated; perhaps, though no courtier, he sometimes said less than he thought; but at any rate his Romanism has not made him an advocate of absolute monarchy.153
Later law books.The book was successful. Some forty or fifty manuscripts of it will seem a sufficient body of witnesses to attest its popularity, especially when we remember that the text of some of our oldest Year Books has to be sought for in unique copies. It became the basis of the legal literature of Edward I.’s day. Gilbert Thornton, chief justice of the king’s bench, made an epitome of it.154 This we have lost, unless it be represented by some of those manuscripts of Bracton’s work which omit his references to the plea rolls. About the year 1290 two other books were written which are to a great degree reproductions of the classical treatise.155 The so-called “Fleta” is little better than an ill-arranged epitome; what its author has not borrowed from Bracton he has for the more part borrowed from some of those little tracts on husbandry and the economic management of manorial affairs which were becoming popular.156 The so-called “Britton” has better claim to be called an original work. It is in French, and the whole law has been put into the king’s mouth. It must have been useful, manuscripts of it are common; on the other hand, Fleta was to all appearance a failure. To these we might add some little tracts on procedure ascribed to Ralph Hengham, one of Edward I.’s chief justices. This however is not the place in which to speak at any length of these products of the Edwardian age; but to name them has been necessary since sometimes they will help us to discover the law of Henry III.’s reign when Bracton fails us. After all that has been done towards publishing the records of that reign, we shall still be dependent on Bracton; but enough has been published to prove that he is a guide who will not mislead us, if only we are careful to distinguish—and this is not very difficult—between his statement of English law and his cosmopolitan jurisprudence.
Other law books of Henry’s reign.Of other law books of Henry’s reign little is known and little need be said; the gap between them and Bracton’s Summa is immense. Copies of the chancery’s “register of original writs” were pretty widely distributed; often a religious house had a copy; sometimes brief notes of an intensely practical character would be written in them. There is extant, and now in the press, an interesting book of precedents for the use of pleaders in the king’s court which belongs to Henry’s time,157 and from that time we begin to get precedents for the use of pleaders in the local courts, conveyancing precedents, and precedents for manorial accounts;158 also brief disquisitions on rural economy which throw light on legal arrangements.159 Once more we must mention—though they are not literature—the voluminous rolls of the two benches, the exchequer and the chancery. About the middle of the century these are being supplemented by the rolls of local courts,160 while much may be learnt from the manorial surveys or “extents,” numerous examples of which have been preserved in the monastic cartularies and elsewhere.
The legal profession. Before the end of the thirteenth century there already exists a legal profession, a class of men who make money by representing litigants before the courts and giving legal advice. The evolution of this class has been slow, for it has been withstood by certain ancient principles.161 The old procedure required of a litigant that he should appear before the court in his own person and conduct his own cause in his own words. For one thing, the notion of agency, the notion that the words or acts of Roger may be attributed to Ralph because Ralph has been pleased to declare that this shall be so, is not of any great antiquity. In the second place, so long as procedure is very formal, so long as the whole fate of a lawsuit depends upon the exact words that the parties utter when they are before the tribunal, it is hardly right that one of them should be represented by an expert who has studied the art of pleading:—John may fairly object that he has been summoned to answer not the circumspect Roger but the blundering Ralph; if Ralph cannot state his own case in due form of law,Pleaders. he is not entitled to an answer. Still in yet ancient days a litigant is allowed to bring into court with him a party of friends and to take “counsel” with them before he pleads. In the Leges Henrici it is already the peculiar mark of an accusation of felony that the accused is allowed no counsel, but must answer at once; in all other cases a man may have counsel.162 What is more, it is by this time permitted that one of those who “are of counsel with him” should speak for him. The captiousness of the old procedure is defeating its own end, and so a man is allowed to put forward some one else to speak for him, not in order that he may be bound by that other person’s words, but in order that he may have a chance of correcting formal blunders and supplying omissions. What the litigant himself has said in court he has said once and for all, but what a friend has said in his favour he may disavow.163 The professional pleader makes his way into the courts, not as one who will represent a litigant, but as one who will stand by the litigant’s side and speak in his favour, subject however to correction, for his words will not bind his client until that client has expressly or tacitly adopted them. Perhaps the main object of having a pleader is that one may have two chances of pleading correctly. Even in the thirteenth century we may see the pleader disavowed. One John de Planez, in pleading for William of Cookham, called Henry II. the grandfather instead of the father of King John; William disavowed the plea, and the advocate was amerced for his blunder.164 And so, before any one is taken at his pleader’s words, it is usual for the court to ask him whether he will abide by the plea.165 Just because the pleader makes his appearance in this informal fashion, as a mere friend who stands by the litigant’s side and provisionally speaks on his behalf, it is difficult for us to discover whether pleaders are commonly employed and whether they are already members of a professional class. The formal records of litigation take no notice of them unless they are disavowed.166
Attorneys.It is otherwise with the attorney, for the attorney represents his principal: he has been appointed, attorned (that is, turned to the business in hand), and for good and ill, for gain and loss (ad lucrandum et perdendum) he stands in his principal’s stead. In England and in other countries the right to appoint an attorney is no outcome of ancient folk-law; it is a royal privilege. The king, as is often the case, has put himself outside the old law: he appoints representatives to carry on his multitudinous law-suits, and the privilege that he asserts on his own behalf he can concede to others. Already in Glanvill’s day every one who is engaged in civil litigation in the king’s court enjoys this right of appointing an attorney, or rather, for the word attorney is hardly yet in use, a responsalis.167 But the right is narrowly limited. The litigant must appear before the court in his proper person and must there put some one else in his stead to gain or lose in some particular plea. Whatever is more than this can only be accomplished by means of a royal writ. Thus it is only under a royal writ that a man can have a general prospective power of appointing attorneys to act for him in future litigation.168 Such writs are by no means matters of course; they usually recite some special reasons why an exceptional boon should be granted:—the grantee is going abroad on the king’s business, or he is the abbot of a royal monastery and too old or infirm for laborious journeys.169 In the communal courts a litigant could not appoint an attorney unless he had the king’s writ authorizing him to do so.170
Attorneys not professional.The attorneys of the period which is now before us do not seem to be in any sense “officers of the court,” nor do they as yet constitute a closed professional class. Probably every “free and lawful” person may appear as the attorney of another; even a woman may be an attorney,171 and a wife may be her husband’s attorney.172 A bishop will appoint one of his clerks, an abbot one of his monks, a baron will be represented by his steward or by one of his knights. Occasionally, however, as we look down the list of attorneys we see the same names repeating themselves, and draw the inference that there are some men who are holding themselves out as ready to represent whoever will employ them. A change comes in Edward I.’s day which gives a new definiteness to the class of attorneys as well as to the class of counsellors.
Professional pleaders.Recurring for a moment to the class of counsellors, we observe that Richard of Anesty, when he prosecuted his tedious suit, followed the royal court in its peregrinations with a group of “friends and helpers and pleaders” in his train.173 For his litigation in the ecclesiastical courts he naturally required professional aid, and he had it from Italian lawyers resident in this country; among them was Master Ambrose, who was in every sense one of the first lawyers in England, first in time as well as first in learning.174 But even in the king’s court he was surrounded by friends and helpers and pleaders, and among them was Ranulf Glanvill.175 For a long time, however, we hear very little of professional counsellors in the temporal courts. This is the more noticeable because Matthew Paris is full of complaints against the pack of bellowing legists whom the king employs and whom he lets slip whenever an episcopal election goes against his wishes.176 They are not men skilled in English law; they are romanists and canonists; many of them are foreigners; one of the most infamous of them, if we judge them by Matthew’s report, is the renowned Hostiensis.177 The only persons who are mentioned as learned in English law are the king’s justices,178 and they to all appearance have been selected, not out of a body of advocates seeking for employment from the general public, but from among the king’s civil servants, the clerks of his court and of his chancery and those laymen who have done good work in subordinate offices. However, when in his account of the year 1235 Paris tells us how Henry sought to crush the aged Hubert de Burgh with accusations, he represents Hubert’s faithful counsellor Lawrence of St. Albans as having to contend against “all the advocates of the bench whom we commonly call countors.”179 In 1268 “a countor of the bench” assaulted a justice of the Jews in Westminster Hall; his fellow countors interceded for him.180 The king already seems to have permanently retained a number of persons to plead his causes for him; but whether these men are free to plead for other people when the king’s interests are not in question, and whether they aspire to any exclusive right of audience we do not know. But lawyers seem to have rapidly taken possession of the civic courts in London. In 1259 the king was compelled to concede to the citizens that in their hustings and other courts they might plead their own causes without lawyers (causidici), saving pleas of the crown, pleas of land, and pleas of unlawful distraint.181 This looks as if in London there had been an unusually rapid development of a professional caste. By this time the practice of the ecclesiastical courts would serve as an example. The attorney is the temporal equivalent for the canonical proctor, and the “narrator” or “countor” is the temporal equivalent for the canonical advocate. In 1237 the legatine constitutions of Cardinal Otho had ordained that no one was to serve as an advocate in an ecclesiastical court, except in certain exceptional cases, until he had taken an oath before his bishop to do his duty and not to pervert justice.182 Thus a close body of professional advocates was formed, and this would serve as a model for a similar body of professional “countors.”
Regulation of pleaders and attorneys.Then in Edward I.’s day we see that the king has retained pleaders who are known as his servants or serjeants at law (servientes ad legem). Already in 1275 it is necessary to threaten with imprisonment “the serjeant countor” who is guilty of collusive or deceitful practice.183 Also there seem to be about the court many young men who are learning to plead, and whose title of “apprentices” suggests that they are the pupils of the serjeants. We may infer that already before 1292 these practitioners had acquired some exclusive right of audience. In that year King Edward directed his justices to provide for every county a sufficient number of attorneys and apprentices from among the best, the most lawful and the most teachable, so that king and people might be well served. The suggestion was made that a hundred and forty of such men would be enough, but the justices might, if they pleased, appoint a larger number.184
The two branches of the profession.By this measure, which, however, may not have been the first of its kind, “both branches of the profession” were placed under the control of the justices, and apparently a monopoly was secured for those who had been thus appointed.185 Some twelve years earlier the mayor and aldermen of London had been compelled to lament the ignorance and ill manners of the pleaders and attorneys who practised in the civic courts, and to ordain that none should habitually practise there who had not been duly admitted by the mayor. They added that no countor was to be an attorney, and thus sanctioned that “separation of the two branches of the profession” which still endures in England; but really, as we have already seen, these two branches had different roots:—the attorney represents his client, appears in his client’s place, while the countor speaks on behalf of a litigant who is present in court either in person or by attorney. The civic fathers were further compelled to threaten with suspension the pleader who took money with both hands or reviled his antagonist.186 It is from 1292 that we get our first Year Book, and we see that already the great litigation of the realm, the litigation which is worthy to be reported, is conducted by a small group of men. Lowther, Spigornel, Howard, Hertpol, King, Huntingdon, Heyham—one of them will be engaged in almost every case. Nor is it only in the king’s court and the civic courts that the professional pleader is found. Already in 1240 the Abbot of Ramsey ordained that none of his tenants was to bring a pleader into his courts to impede or delay his seignorial justice,187 and in 1275 we find one William of Bolton practising in partnership with other pleaders before the court of the fair of St Ives.188 Many details are still obscure, but in Edward I.’s day it is that our legal profession first begins to take a definite shape. We see a group of counsel, of serjeants and apprentices on the one hand, and a group of professional attorneys on the other, and both of them derive their right to practise from the king either mediately or immediately.189
Professional opinion.So soon as there is a legal profession, professional opinion is among the most powerful of the forces that mould the law, and we may see it exercising its influence directly as well as indirectly. In Edward I.’s day it is impossible to uphold a writ which “all the serjeants” condemn, and often enough to the medieval law-reporter “the opinion of the serjeants” seems as weighty as any judgment.190
Decline of Romanism.That the professional pleader of Edward I.’s day had learnt law as a science, had attended lectures or read books, we do not know; very probably his education had generally been of a purely empirical kind. Sometimes he was a legist. In 1307 a judge says to counsel, “Passeley, you are a legist and there is a written law which speaks of this matter, Cogi possessorem etc. ”191 A certain knowledge of, and reverence for, the broader maxims of “the written law” is apparent. “Volenti non fit iniuria,” “Melior est conditio possidentis,” “Res inter alios acta,” such phrases as these can be produced in court when there is occasion for them.192 They could be easily found; the Decretals of Pope Boniface VIII. end with a bouquet of these showy proverbs.193 When in any century from the thirteenth to the nineteenth an English lawyer indulges in a Latin maxim, he is generally, though of this he may be profoundly ignorant, quoting from the Sext. But we have only to look at manuscripts of Bracton’s text to see that the influence of Roman law is on the wane, is already very slight. Transcribers who can copy correctly enough good homely stuff about the assize of novel disseisin, make utter nonsense of the subtler discussions which Bracton had borrowed from Azo. A climax is reached when the actio familiae herciscundae has become an action about the family of the lady Herciscunda, or, since even her name is outlandish, the lady of Hertescombe, who probably had estates in Devonshire.194
Notaries and conveyancers.In England that Roman institution, the notarial system, never took deep root.195 Our kings did not assume the imperial privilege of appointing notaries, nor did our law require that deeds or wills or other instruments in common use should be prepared or attested by professional experts. Now and again when some document was to be drawn up which would demand the credence of foreigners, a papal notary would be employed. It was a papal notary who framed the most magnificent record of King Edward’s justice, the record of the suit in which the crown of Scotland was at stake.196 But it is worthy of remark that, while in our temporal courts the art of recording pleas had been brought to a high degree of perfection, the English ecclesiastical courts seem to have borne among continental canonists a bad repute because of their careless and inartistic records. This we learn from an Italian notary, one John of Bologna, who dedicated to Archbishop Peckham a collection of judicial precedents, destined—so its author hoped—to reform our slovenly insular documents.197 In later days there were always some apostolic notaries in England. In the fourteenth century the testament of a prelate or baron will sometimes take the form of a notarial instrument. But an acquaintance with the law of the land sufficient to enable one to draw a charter of feoffment, a lease, a mortgage, a will, was in all likelihood a common accomplishment among the clergy, regular and secular. If we closely scan the cartulary of any rich religious house we shall probably infer that it had its own collection of common forms. It is quite conceivable that some instruction in conveyancing was given in the universities. From the second half of the thirteenth century we begin to get books of precedents, and sometimes the formulas of purely temporal transactions will be mixed up with instruments destined to come before the ecclesiastical courts.198 From the Norman Conquest onwards the practice of using written instruments slowly spreads downwards from the king’s chancery. The private deeds (cartae) are for the more part very brief, clear and business-like instruments; they closely resemble those that were executed in northern France. The most elaborate documents are those which proceed from the king’s court. If a man wishes to do with land anything that is at all unusual, he does it by means of a fictitious action brought and compromised in the king’s court. The instrument which records this compromise, this “final concord” or “fine,” will be drawn up by the royal clerks, and one copy of it, the so-called “foot of the fine,” will remain with the court. By this means, before the thirteenth century is out, some complex “family settlements” are being made. Also the Lombard merchants have brought with them precedents for bonds, lengthy, precise and stringent forms, which they compel their English debtors to execute.199
Knowledge of the law.On the whole it is hard for us to determine the degree to which knowledge of the law had become the exclusive property of a professional class. On the one hand, there were many things in Bracton’s book which were beyond the comprehension of the laity— some things, we suspect, that were too refined for the ordinary lawyer—and it was fully admitted that the prudent litigant should employ a skilful pleader.200 Even the writer of the Leges Henrici had observed that we better understand another person’s cause than our own.201 But the group of professional lawyers which had formed itself round the king’s court was small; the king’s permanent justices were few, the serjeants were few, and some seven score apprentices and attorneys seemed enough. A great deal of legal business was still being transacted, a great deal of justice done, by those who were not professional experts. The knight, the active country gentleman, would at times be employed as a justice of assize or of gaol delivery, besides making the judgments in the county court. The cellarer of the abbey would preside in its manorial courts and be ready to draw a lease or a will. The freeholders of the shire, besides attending the communal and the manorial courts, would have hard work to do as jurors; often would they be called to Westminster, and as yet the separation of matter of law from matter of fact was not so strict that a juror could afford to know nothing of legal rules. In one way and another the common folk were constantly receiving lessons in law; the routine of their lives often took them into the courts, even into courts presided over by a Pateshull, a Raleigh, a Bracton. This healthy co-operation of all sorts and conditions of men in the work of the law prevents the jurist from having it all his own way and making the law too fine a thing for common use.
English law in Wales.English law was already spreading beyond the bounds of England. In 1272 the time had almost come when Wales would be subjugated and Edward’s great Statutum Walliae,202 the most comprehensive code that any English legislator issues during the middle ages, would be promulgated. Meanwhile in the marches English and Welsh law had met; but the struggle was unequal, for it was a struggle between the modern and the archaic. Welsh law had indeed a literature of its own, but had hardly passed that stage which is represented in England by the Leges Henrici. No doubt there were those who cherished the old tribal customs. The men of Urchinfield, a district within the English county of Hereford, tell the king’s justices that the manslayer may make his peace with the kinsmen of the slain, and they ask that this ancient usage may be observed.203 On the other hand, the men of Kerry, which lies within the modern county of Montgomery, petition the king that they may live under English law, because that law has suppressed the blood-feud and does not punish the innocent along with the guilty.204 The old law of blood-feud and wergild, or galanas as the Welsh call it, will die hard in Wales; still it is doomed to die, and along with it the tribal system whence it springs.
English law in Ireland.Into Ireland Englishmen have carried their own law. A smaller England has been created across the Channel, with chancery, exchequer, “benches,” council, sheriffs, coroners, all reproduced upon a diminished scale. Statutes and ordinances and “the register of original writs” were sent from England into Ireland; the king’s English court claimed a supremacy over his Irish tribunals, and multitudinous petitions from Ireland came before the English council at its parliaments.205 It is probable however that, even in those parts of Ireland which were effectually subject to English domination, the native Irish were suffered to live under their old law so long as they would keep the king’s peace; but we may see Innocent IV. intervening to protect them against what seems to be an iniquitous application of the system of “personal law.”206 Individual Irishmen, like the men of the Welsh Kerry, petitioned that they might be allowed the benefits of English law; they probably meant by this that they wished their lives protected by a law which knew how to hang a manslayer instead of suffering him to purchase peace by wergild or “eric” fine.207
English and Scottish law.Whether the king of Scotland was in any degree subject to the king of England, was a question about which Englishman and Scot would have disagreed in the year 1272 and about which they will hardly be brought to agree even now. Old precedents of homage and release from homage were being treasured on either side of the border and were soon to be brought into debate. But the utmost claimed for the English king was a feudal overlordship, and En glish law, as English law, had no power north of the Tweed. Nevertheless, we may doubt whether a man who crossed the river felt that he had passed from the land of one law to the land of another. In the first place, for some while he would have known himself to be under a law settled and put in writing by a joint committee of English and Scottish knights, the law of the marches, which decided that whenever a charge of felony lay between Englishman and Scot there must be trial by battle:—he would have known himself to be under a true international law.208 But suppose him served with a writ. He might notice the name of Henry where he was accustomed to see Alexander, or the name of some Scottish burgh in the place of the familiar Westmonasterium; but nothing else in the writ would seem strange. If the proper names be omitted, we shall hardly now tell a Scottish charter of feoffment from an English, and the few Scottish records of litigation that have come down to us from the thirteenth century might have been written by the clerks of Robert Bruce, the chief justice of England. Of what went on beyond the Forth it is not for us to hazard a word, but for long ages past the law that prevailed between Forth and Tweed must have been very like the law that prevailed between Tweed and Humber. And then, if Frankish feudalism in the guise of a Norman army had conquered England, it had almost as effectually, though in more peaceful guise, conquered whatever of Scotland was worthy of conquest. On the whole, for a long time past the two nations, if two nations we must call them, had been good friends; the two kingly families had been closely allied. Many a great baron can hardly have known to which nation he belonged. The concentrated might of the English kingship, the imperious chancery, the exact and exacting exchequer, were ideals for the Scottish king; the English baron may well have yearned for franchises and regalities that were denied to him but enjoyed by his Scottish peers. The problem of the Regiam Maiestatem, the Scottish version of Glanvill’s book, we must not try to solve; but it seems clear enough from abundant evidence that, at the outbreak of the war of independence, the law of Scotland, or of southern Scotland, was closely akin to English law.209 That it had been less romanized than English law had been is highly probable: no Bracton had set it in order by the method of the Summa Azonis. That it was less uniform than was English law is also highly probable; the Scottish kingship was not so strong as was the English, and in Scotland there were ethnical differences impeding the progress of a common law. These seem to be the main causes which, when enforced, during the struggle for independence, by a loathing for all that was English, sever the stream of Scottish from that of English legal history. Romanism must come sooner or later; the later it comes the stronger it will be, for it will have gone half way to meet the medieval facts.210 Uniformity, if it cannot be evolved from within, must be imported from without. Thus in the end Roman law is received in Scotland as subsidiary and academic law.
Precocious maturity of English law.A comparison of the legal systems of various states as they were at some remote point of time will always be a difficult task, even for one who knows the history of each separate system. But if we could look at western Europe in the year 1272, perhaps the characteristic of English law which would seem the most prominent would be its precocity. Its substance was, to say the least, as modern and enlightened as was that of the systems with which it could be profitably compared. It had suppressed some archaisms which might still be found in France or at any rate in Germany. It knew nothing of the wergild save as a trait of Welsh barbarism; at the pope’s bidding it had abolished the ordeal; it was rapidly confining the judicial combat and the oath with oath-helpers within very narrow limits. But we would speak rather of its form than of its matter. The great charter, the provisions of Merton and Marlborough, the minor ordinances, these in 1272 constituted what we must here call a large body of enacted law. And if in one sense England was never to be a “country of the written law,” it had become preeminently the country of the written record. Every right, every remedy must be made definite by writing; if it cannot find expression in some chancery formula, it must cease to exist. Then, again, English law is becoming the law of one court, or of a small group of intimately connected courts, the law of Westminster Hall, the law that in its full perfection is known only to some dozen men, the king’s justices. Every right, every remedy, is being sharpened and hardened by the ceaseless activity of a court which in the course of a year decides thousands of cases, the greatest and the smallest, coming to it from all corners of the land.
Characteristics of English law.Uniformity is thus secured, and even a certain simplicity, for some parts of our common law, notably the law of status, must, if we have regard to continental systems, be called surprisingly simple. Closely connected with its uniformity is another distinctive trait:—in England the law for the great men has become the law for all men, because the law of the king’s court has become the common law. For example, the primogenitary rules of inheritance are rapidly spreading downwards from their native home among the military fees through all the subjacent strata, and the one “formal contract” of English law can be made only by those who can write or hire others to write for them. Certainty also has been attained; Bracton’s hands are far less free than are the hands of Philip Beaumanoir or Eike of Repgau; at every moment he must be thinking of the formulas in the chancery’s register. English law is modern in its uniformity, its simplicity, its certainty; it is modern also in the amount of Romanism that it has absorbed. In Germany the theoretical sanctity of Justinian’s texts has as yet borne little fruit in practice; in northern France the new Roman jurisprudence is still lying on the surface and hardly beginning to mix with the traditional customs, while in England it has already done a great work, and almost all the work that it will ever do. But all these modern excellences are being purchased at a price which may be heavy. The judges can no longer introduce much that is new; they know nothing of any system but their own; Roman law has lost its glamour. All now depends upon those who will wield the legislative power in this country, upon the “sovereign one” or the “sovereign many.” A vigilant, an enlightened, an expert legislator may be able to keep this rigid formulary system in harmony with the ever changing necessities of mankind, introducing new “forms of action” and (for this will be equally necessary) ruthlessly abolishing all that is obsolete. But unless we are to have this continuous legislative activity—and we can hardly have it without despotism—the omens for the future of English law are not very favourable. It may easily become a commentary, an evasive commentary, on antique writs and statutes. It will circumvent by tortuous paths the obstacles that it cannot surmount. Archaic institutions which the rationalism of the thirteenth century had almost destroyed, wager of battle, wager of law, will live on until the nineteenth, moribund but mischievous. It may become an occult science, a black art, a labyrinth of which the clue has been lost.
But now, having brought down our general sketch of the growth of English law to the accession of Edward I., “the English Justinian,” we may turn to an examination of its rules and doctrines as we find them in the age of Glanvill and the age of Bracton.
THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES
[1 ] Glanvill, vii. 1: “secundum ius regni.”
[2 ] Charter, 1215, c. 45: “qui sciant legem regni.”
[3 ] Ibid. 1215, c. 39: “per legale iudicium parium suorum vel per legem terrae.” Bracton, f. 128 b: “utlagatus rite et secundum legem terrae.” Ibid. f. 127 b: “ante aetatem duodecim annorum non erit quis sub lege, et prius extra legem poni non poterit.” Ibid. f. 147: “secundum legem Romanorum, Francorum et Anglorum.”
[4 ] Glanvill, vii. 12: “secundum ius et consuetudinem regni.”
[5 ] Prov. Oxford (Select Charters): “La haute justice a poer de amender les tors . . . solum lei et dreit de la tere. E les brefs seient pledez solum lei de la tere e en leus deues.”
[6 ] Thus in the count on a writ of right, “Peto terram ut ius et hereditatem meam . . . pater meus fuit seisitus ut de iure . . . et de eo descendit ius . . . et quod hoc est ius meum offero probare.”
[7 ] Dialogus, ii. 7: “leges candentis ferri vel aquae.” Glanvill, xiv. 2: “per legem apparentem se purgare.” Charter, 1215, c. 38: “Nullus ballivus ponat . . . aliquem ad legem simplici loquela sua.”
[8 ] Glanvill, Prologus: “Leges namque Anglicanas, licet non scriptas, leges appellari non videtur absurdum.” Bracton, f. 1.
[9 ] Bracton, f. 1: “Habent enim Anglici plurima ex consuetudine quae non habent ex lege.”
[10 ] Dialogus, ii. 21: “Decrevit enim rex illustris.” Hoveden, iii. 299: “Edictum regium.” Dialogus, ii. 1: “ex novella constitutione, hoc est post tempora regis Henrici primi.” Glanvill, ii. 7: “Est autem magna assisa regale quoddam beneficium, clementia principis de consilio procerum populis indultum . . . legalis ista institutio [al. regalis ista constitutio].” Bracton, f. 96: “sed nova superveniente gratia et provisione.”
[11 ] Proclamation of the king’s acceptance of the Provisions of Oxford (Select Charters): “and to werian þo isetnesses þæt beon imakede.”
[12 ] The laws of Merton and Marlborough, though they are retrospectively called statutes, called themselves provisions. However, Henry I. had spoken of his statuta. See above, p. 104.
[13 ] Dialogus, ii. 10: “Propter solam regis assisam sic esse cognoscas; nec enim est qui regiae constitutioni, quae pro bono pacis fit, obviare praesumat.”
[14 ] Bracton, f. 1 b: the contrast is between mutari and in melius converti.
[15 ] Bracton, f. 414 b: the contrast is between a writ which is contra ius and one which is praeter ius but at the same time rationi consonum et non iuri contrarium.
[16 ] c. 32, X. 2. 20: “tam de communi iure, quam de consuetudine generali Anglicanae ecclesiae.”
[17 ] Sarum Charters, p. 89.
[18 ] Thus in Cod. Theod. 16, 5, 23 is a constitution repealing an earlier law which had placed a certain class of heretics under disabilities. “Vivant iure communi,” it says, and this we can best render by, “They are to live under the common law,” i.e. the ordinary law. So in Cod. Theod. 2, 1, 10: “Iudaei romano et communi iure viventes.”
[19 ] Sarum Charters, p. 320: “Nos vero . . . ius commune pro ecclesia de Preschut faciens considerantes.”
[20 ] Dialogus, i. 11: “Legibus quidem propriis subsistit; quas non communi regni iure, sed voluntaria principum institutione subnixas dicunt.” Ibid. ii. 22: “communis lex.”
[21 ] Thus Y. B. 21–22 Edw. I. contrasts common law with statute (pp. 55–56, 419), with local custom (pp. 213, 287), with prerogative (p. 406), with the law merchant (p. 459), with “special law” (p. 71). P. Q. W. 681: “videtur iusticiariis quod dominus Rex placitare potest per breve magis conveniens legi communi quam hoc breve.” Rot. Parl. i. 47 (1290): “Perquirat sibi per legem communem.” Articuli super Cartas (28 Edw. I.): “ou remedie ne fust avant par la commune ley . . . nul bref que touche la commune lei.” Y. B. 20–21 Edw. I. p. 55: “You put forward no espessyalté. ”
[22 ] Bracton, f. 17 b: “Modus enim legem dat donationi et modus tenendus est contra ius commune et contra legem, quia modus et conventio vincunt legem . . . Bene poterit donator . . . legem imponere donationi . . . contra legem terrae.” Ibid. 19 b: “Item poterit conditio impedire descensum ad proprios heredes contra ius commune.” Ibid. 48 b: “Item poterit donator ex speciali conventione contra ius commune conditionem suam meliorem facere in causa donationis.”
[23 ] Early instances of the use of the term in a more or less technical sense are these. Foedera, i. 266, a writ of 1246: “Rex vult quod omnia brevia de communi iure quae currunt in Anglia similiter currant in Hibernia.” Provisions of Oxford (1259): “de sectis autem quae . . . subtractae fuerunt currat lex communis (curge la commune lei)”:—“habeat rationabilem summonitionem secundum communem legem terrae (solum la commune lei).” According to a story told in the Burton Annals, p. 210, when John asked the papal legates what they wanted, they replied, “Nil nisi ius commune”; this seems to mean, “Nothing but common justice.” See further as to the history of this phrase, Clark, Practical Jurisprudence, p. 70.
[24 ] The Leges Edwardi and one set of the Leges Willelmi (Hic intimatur) were still being amplified by imaginative persons, who wished to show how sheriffs were elected in the good old days, and how the Scots were subject to the English king. See Liebermann, Leges Anglorum, p. 28 ff. Bracton, f. 134 b, quotes historical matter from the Leges Edwardi; and in his work (f. 147) there is an addicio which seems to refer to some laws of Æthelstan.
[25 ] After 1225 but before Edward’s confirmation in 1297 a change was made in, or crept into, the clause which defines the amount of the relief; the baron’s relief was reduced from 100 pounds to 100 marks. See Bémont, Chartes des libertés anglaises, pp. xxxi. 47–48. The text of the various editions can be best compared in this excellent book.
[26 ] Statutes of the Realm, i. 6.
[27 ] Statutes, i. 1; Note Book, i. 104.
[28 ] Statutes, i. 8.
[29 ] Stat. Marlb. (Statutes, i. 19): “convocatis discrecioribus eiusdem regni tam ex maioribus quam minoribus, provisum est et statutum ac concorditer ordinatum.” There seems no reason why we should any longer speak of Marlbridge when we mean Marlborough; “Marlbridge” is but a stupid misrepresentation of the French form Marleberge.
[30 ] Statutes of the Realm, i. 12.
[31 ] Ibid. p. 7; Note Book, i. 43.
[32 ] The earliest statute roll now extant begins with the Statute of Gloucester, 1278. What is now its topmost membrane shows distinct signs of having been preceded by another membrane, which may have contained the Statute of Westminster I. (1275) and other matters. Our first parliament roll comes from 1290.
[33 ] Among these may be reckoned the ordinance of 1219 relating to the abolition of the ordeal, Foedera, i. 154; the “constitution” of 1234 relating to the holding of the local courts, printed in Statutes of the Realm, i. 118; the ordinance of 1234 relating to special bastardy, which (see Bracton’s Note Book, i. p. 104) is on the Coram Rege Roll; an ordinance of 1233 relating to the conservation of the peace, preserved on the Close Roll and printed in the Select Charters; a statute of limitation from 1237 which (see Note Book, i. p. 106) is usually but wrongly regarded as part of the Provisions of Merton; an ordinance about warranty made in 1251 on the dedication of the Abbey of Hailes and mentioned by Bracton, f. 382 b; an ordinance of 1253 relating to watch and ward, preserved by Matthew Paris and printed in the Select Charters; an assize of bread, preserved in the Annals of Burton, p. 375, and elsewhere; lastly an important ordinance of 1255 against alienation, recently discovered on the Close Roll by Mr. Turner and printed by him in L. Q. R. xii. 299. Besides all this Matthew Paris mentions a considerable number of acts of a legislative kind, e.g. vol. v. pp. 15, 18, an edict of 1248 relating to the coinage; p. 35, an edict relating to vengeance upon adulterers. The rolls of Henry’s day have yet to be carefully searched for the remains of legislation.
[34 ] Rob. Grosseteste Epistolae, p. 96: Grosseteste to Raleigh: “nec tam idiota sum quod credam ad alicuius suggestionem te vel alium sine principis et magnatum consilio posse leges condere vel commutare.”
[35 ] For this see Giraud, Histoire du droit français, ii. 24. It will be remembered that Henry’s queen belongs to the house of Provence on her father’s, to that of Savoy on her mother’s side. Raymond himself may have copied what Matthew calls a consuetudo Sabaudica.
[36 ] The ordinance is printed in the Select Charters. Mat. Par. v. 369: “praesertim cum tanta legis permutatio sine communi assensu barnagii constitui minime valuisset.”
[37 ] Bracton, f. 5 b, 107; Note Book, i. 29–33.
[38 ] Sidgwick, Elements of Politics, p. 21.
[39 ] Kingsford, Song of Lewes, pp. 103–4, 113–18.
[40 ] This matter will be discussed below when we speak of the King and the Crown.
[41 ] Mat. Par. iii. 337–38. At Henry’s coronation the earl carries the sword of St. Edward “in signum quod comes est palatii et regem si oberret habeat de iure potestatem cohibendi.” It seems not impossible that this theory, which cannot have had any warrant in English precedents, was borrowed from Germany, where men were asserting that a court presided over by the Pfalzgraf might even adjudge the Emperor to death; Schröder, D. R. G., 468.
[42 ] Bracton, f. 171 b. The question whether the violent passage on f. 34 comes from Bracton has been discussed elsewhere; see Note Book, i. 29–33.
[43 ] Bracton, f. 107 b: “Dum facit iustitiam, vicarius est Regis Eterni, minister autem diaboli dum declinat ad iniuriam.”
[44 ] Bracton, f. 1 b: “Si autem aliqua nova et inconsueta emerserint et quae prius usitata non fuerint in regno, si tamen similia evenerint, per simile iudicentur, cum bona sit occasio a similibus procedere ad similia. Si autem talia nunquam prius evenerint, et obscurum et difficile sit eorum iudicium, tunc ponantur iudicia in respectum usque ad magnam curiam, ut ibi per consilium curiae terminentur.” Thus in a quite unprecedented case the court may have to declare for law what, as Bracton almost admits, has not as yet been law. For this purpose the court should take the form of a great assembly of prelates and barons. In the above passage Bracton alludes to Dig. 1. 3. 13.
[45 ] Bracton, f. 1, 2.
[46 ] Note Book, pl. 1213: the Earl of Chester appeals to cases concerning other palatine earls. Ibid. pl. 1227: in the exceedingly important case raising the question whether a palatinate can be partitioned, the magnates reject foreign precedents; “nec voluerunt iudicare per exempla usitata in partibus transmarinis.” In 1291 the Earl of Gloucester, being concerned in a case which raised an unusual question, asked the king that the rolls of Pateshull (ob. 1229) and of later judges might be searched for precedents, and a precedent was produced from 1248; Rot. Parl. i. 66–67. Of course the rolls were often produced to show that a concrete question was res iudicata; but this is quite another matter.
[47 ] See e.g. Y. B. 21–22 Edw. I. p. 146. Occasionally the appeal to a precedent is entered on the roll as the substance of the plea: Northumberland Assize Rolls, p. 223.
[48 ] Bracton, f. 1 b: “licet sint nonnulli qui de propria scientia praesumentes, quasi nihil iuris ignorent, nolunt alicuius consilium expetere.”
[49 ] Bracton, f. 1.
[50 ] For an instance of a custom that is declared to be unlawful, see Northumberland Assize Rolls, p. 353: “illa consuetudo omnino est contra omnes leges.”
[51 ] Bracton, f. 329. The procedure of the feudal courts in respect of such matters as summons and essoins may differ from that of the king’s court, but as regards warranty, pleading, and battle the rules of the king’s court must be observed.
[52 ] Bracton’s Note Book, pl. 834. The suitors of Havering are asked to produce a precedent (exemplum) for a judgment that they have delivered; not being able to do this, they are amerced.
[53 ] Bracton, f. 85 b : “licet in quibusdam partibus et per abusum observetur in contrarium, sicut in episcopatu Wintoniae”; Note Book, pl. 282.
[54 ] Note Book, pl. 623: “talis est consuetudo in feodo Comitis Britanniae.”
[55 ] Royal Letters, i. 103. A difficult case having arisen in the county court of Nottingham, the bailiff who held the court advises the sheriff to obtain the opinion of the king’s council.
[56 ] Select Pleas in Manorial Courts, p. 3.
[57 ] More will be said of the borough customs in a later chapter.
[58 ] Gross, Gild Merchant, i. 259.
[59 ] Note Book, pl. 1644: “secundum legem Kantiae.”
[60 ] Statutes, i. 223.
[61 ] Elton, Tenures of Kent, p. 29. In the form gavelingude the word occurs on our earliest plea roll; Rolls of King’s Court (Pipe Roll Soc.), p. 43.
[62 ] Statutes, i. 223; Y. B. 30–31 Edw. I. p. 168.
[63 ] In Domesday Book and older charters Kent is distinguished by peculiar land measures, the sulung and the yoke (iugum). Also it had been lightly taxed; Maitland, Domesday Book, 466, 484. We can, however, find nothing in the record which in any way suggests that the numerous villani of Kent are in any respect better off than the villani of other counties or that they stand on a par with the sokemanni or the small libere tenentes of Norfolk and Suffolk. See however Kenny, Primogeniture, p. 29.
[64 ] Among the ancient features we may reckon the allotment of the “aster” or hearth to the youngest son, and the peculiar ninefold payment plus a wergild whereby a tenant can redeem land that he has lost by non-payment of rent. The proverb which sends “the father to the bough and the son to the plough” seems corrupt. In the oldest versions of it the son goes to the “lowe,” the fire, the hearth, the aster; Note Book, pl. 1644; Statutes, i. 223. The custumal ends with an assertion that the usages which it describes are older than the Conquest. As to the legend of the moving wood of Swanscombe, this first appears at a very late day; Freeman, Norman Conquest, iii. 539.
[65 ] Statutes, i. 225.
[66 ] Note Book, pl. 1338, 1644.
[67 ] Observe the first words of the custumal:—“These are the usages and customs which the community of Kent claims to have in tenements of gavelkind and gavelkind folk.”
[68 ] This is well shown by the establishment at a very late period of a custom to devise gavelkind land by will, a matter fully discussed by Elton, Tenures of Kent, 73–78.
[69 ] The case as to the partition of the Chester palatinate; see above, p. 195.
[70 ] Bracton, f. 1.
[71 ] Note Book, i. pp. 104–115. We have no authoritative text of this famous resolution; but the last word of it seems to have been mutare, not mutari.
[72 ] Delisle, Recueil de jugements, p. 139: “Judicatum est quod ille qui natus fuit ante sponsalia sive post est propinquior heres ad habendam hereditatem patris . . . si sancta ecclesia approbet maritagium.”
[73 ] Rob. Grosseteste Epistolae, 76–97. Grosseteste (p. 97) writes to Raleigh: “Induxistis testimonium Ricardi de Luci; cuius testimonium quantam et qualem habeat comparationem ad testimonia divinae scripturae et canonicae contrarium testificantia, lippis patet et tonsoribus.” The arguments which Grosseteste adduces from the Bible and the law of nature are very curious; however, he seems to expressly disclaim the notion that the king’s justices could desert their ungodly precedents in favour of divine and natural law until the law of England had been changed by king and magnates.
[74 ] Brunner, D. R. G. ii. 135–36.
[75 ] Glanvill, vii. 1: “aliquando tamen super hoc ultimo casu in curia domini Regis de consilio curiae ita ex aequitate consideratum est.” Note Book, pl. 273, 785, 786, 900, 940, 1376. Bracton, f. 1 b: unprecedented cases are to be decided “per consilium curiae.” In the Year Books we may sometimes see a contrast between rigor and aequitas; Y. B. 30–31 Edw. I. 120.
[76 ] The exchequer plea rolls do not begin until far on in Henry III.’s reign; much business of a judicial character is noticed on the memoranda rolls of the remembrancers which begin with the beginning of the reign. There are also numerous sets of rolls which set forth the more purely financial business in the form of accounts.
[77 ] Madox, Exchequer, ii. 51.
[78 ] Fleta, p. 82.
[79 ] Foss, Judges, iii. 196.
[80 ] Madox, Exchequer, ii. 54.
[81 ] Writs sent to the exchequer are addressed to the treasurer and barons, or, if they merely order the delivery of treasure or the like, to the treasurer and chamberlains.
[82 ] Fleta, p. 81: “Habet etiam Rex curiam suam et iustitiarios suos in Scaccario apud Westmonasterium residentes.”
[83 ] Madox, Exchequer, ii. 295.
[84 ] This is the theme of Lord Somers’s magnificent judgment in The Banker’s case; State Trials, vol. xiv. p. 1. In course of time a practice of sending to the exchequer “current liberates, ” or, as we might say, standing orders for the payment of periodical charges, was adopted.
[85 ] Hughes, The Parliament of Lincoln, Trans. Roy. Hist. Soc. ix. 41.
[86 ] Rolls of Parliament, vol. 1, passim. It would seem that most of those matters which in after days would have been the subjects of “petitions of right” were in earlier days thus delegated to the exchequer.
[87 ] The curious point is that in this matter the barons seem to have acted in defiance not merely of laws and ordinances but of the king’s own interests. Whether the well-known phrase in the Charter (“Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo”) was originally intended to deprive the exchequer of jurisdiction over common pleas is doubtful; but that intention was authoritatively attributed to it in Edward I.’s day. We find Edward laying down the prohibitive rule not merely in the Articuli of 1300 (Statutes, i. 138), some of which were won from him by pressure, but in a much earlier ordinance, the so-called Statute of Rhuddlan (i. 70), where he gives as his reason the delay of the exchequer’s proper business. As to the motives which sent plaintiffs to the exchequer, we find that when the king by way of exceptional favour sanctions their going thither, he sometimes expressly says that they are to have the benefit of the processes appropriate to crown debts. See Madox, Exchequer, i. 209–214, ii. 73–76.
[88 ] Fleta, p. 66: “Habet etiam [Rex] curiam suam in cancellaria sua.”
[89 ] Stubbs, Const. Hist. i. p. 381.
[90 ] The term magistri when applied to the masters in chancery seems at first merely to mark them as men with university degrees. But they were also praeceptores, for in certain cases they had power to order that a writ should issue; Fleta, p. 77. Apparently the class of writs known as magistralia consists of those which must be settled by one of the magistri; Bracton, f. 413 b. Edward I. had two apostolic notaries in his chancery, John Arthur of Caen and John Busshe. The series of masters of the rolls goes back to the early years of Edward’s reign. The master of the rolls is the chancellor’s principal subordinate.
[91 ] Mat. Par. Chron. Maj. v. 130.
[92 ] Writs issued by the court in the course of litigation are brevia iudicialia; they are sometimes said to “issue out of the rolls of the court”; this means that the order for the issue of the writ is on the court’s roll.
[93 ] Articuli super cartas, 1300, c. 6 (Statutes, i. 139).
[94 ] The large collection of privy seal writs in the Record Office begins in Edward I.’s reign.
[95 ] Maitland, Memoranda de Parliamento, 33 Edward I., p. xxxvii.
[96 ] The stages by which the chancery ceased as a matter of fact to be a peripatetic office, following the king in his progresses, have never yet been accurately ascertained; but it seems probable that Chancellor Burnel made some noteworthy change in 1280; Annales Monastici, ii. 393, iv. 477.
[97 ] The best introduction to them will be found in Bémont, Rôles Gascons (Documents inédits), Paris 1896.
[98 ] If an intending litigant has to pay for his original writ, then an entry will be made on the fine roll, but the nature of the writ will be but briefly described, e.g. as “a writ of trespass,” “an attaint” or the like. See Fleta, p. 77. The Record Office contains large stores of these writs.
[99 ] Harv. L. R., iii. 175.
[100 ] Excerpta e Rotulis Finium, i. 29, 49, 62, 68; Harv. L. R., iii. 12.
[101 ] Fleta, p. 77.
[102 ] Fleta, p. 77; Excerpta e Rotulis Finium, ii. 101.
[103 ] Fleta, p. 77–78.
[104 ] Bracton, f. 413 b–414 b.
[105 ] Harv. L. R., iii. 173, 174, 176.
[106 ] Mat. Par. Chron. Maj. iii. 364, 491, 495, 530.
[107 ] Ibid. iii. 629; v. 594.
[108 ] This begins as early as 1244; ibid. iv. 363, 367; vi. 363.
[109 ] Ann. Burton, 448.
[110 ] Placita de Quo Warranto, 681, 686: writs brought by the king are quashed by the judges. Rolls of Parl. i. 52: Edward complains to his council that a particular case has occurred which is not exactly met by any of the three writs of escheat current in the chancery.
[111 ] Royal Letters, i. 68, 276, 282; ii. 48.
[112 ] Hale, Jurisdiction of the House of Lords, 47; Blackstone, Comm. iii. 48.
[113 ] See Rolls of Parliament, vol. i. passim, and Maitland, Memoranda de Parliamento, 33 Edward I. An instance of a case committed to the chancellor occurs in Rolls of Parl. i. p. 60: “Veniant partes coram cancellario et ostendat ei Adam quare ipsos eiecit; et fiat eis iustitia.” Such a response as this is rare. Already a practice obtained of acknowledging debts in the chancery, and when this had been done, a writ of execution would issue from the chancery in the creditor’s favour. Fleta, p. 76, mentions this as a case in which a “judicial” writ issues from the chancery. But here originally there was little to be called jurisdiction, for the creditor who had a recognizance had in theory what was equivalent to a judgment in his favour, and execution would issue as a matter of course. It is probable that in dealing with the king’s wards the chancery exercised something like jurisdiction, e.g. by deciding that full age had or had not been attained, by allotting dower to widows and making partition among co-heirs; but on the whole this (like much of the work done in the Chancery Division to this day) is the work of an administrative office rather than of a tribunal.
[114 ] Above, p. 163.
[115 ] Select Pleas of the Crown (Selden Soc.), pp. xiii–xix.
[116 ] Note Book, i. pp. 56–58.
[117 ] Charter, 1215, c. 17.
[118 ] It is of comparatively late origin. There are many criminal cases on the de banco rolls of Edward I.
[119 ] Note Book, pl. 1166, 1189, 1190.
[120 ] In discussions of this obscure matter it has too often been forgotten that so long as there was a Court of Common Pleas the most solemn title of its justices was “Justices of the Bench,” while in 1875 the justices of the Queen’s Bench were “Justices assigned to hold pleas before the Queen herself.” In 10 Edw. I. we have the King’s Bench distinguished from the “Great Bench”; Plac. Abbrev. p. 274. About this time “the justices of either bench” becomes a common phrase. Foss (ii. 160–86), viewing the matter from a biographer’s stand-point, may be right in fixing a late date for the final establishment of the two courts, for until the end of Henry’s reign the judges are easily moved backwards and forwards between the two courts or divisions; but long before this there are two parallel sets of rolls; and Bracton may serve as an instance of a judge who, so far as we know, never sat at “the bench,” but for several years held pleas “coram rege.”
[121 ] Hale, Jurisdiction of the House of Lords, p. 53.
[122 ] The problem for the fourteenth century is neatly raised by the words of Fleta, p. 66: “Habet enim Rex curiam suam in concilio suo in parliamentis suis, praesentibus praelatis, comitibus, baronibus, proceribus et aliis viris peritis [corr. iurisperitis].” Besides this the king has a court (King’s Bench) of justices “locum suum tenentes in Anglia”; also he has a court before the justices of the (Common) Bench at Westminster. The parallel passage in Bracton (f. 105 b, 108) recognizes but two central courts, the Bench, and a higher court which is more specifically the king’s own court, where his “chief justices” sit. See Maitland, Memoranda de Parliamento, 33 Edw. I., Introduction, p. lxxix.
[123 ] Thus Cambridge gaol seems to have been delivered about twenty-four times in seven years, beginning with 2 Edw. I., the deliverers being usually Cambridgeshire knights. Reports of Dep. Keeper, xliii–xlix.
[124 ] Bracton took Devonshire assizes at Exeter, Morchard, Molton, Torrington, Chulmleigh, Barnstaple, Umberleigh; Note Book, i. p. 17.
[125 ] Calendar of Patent Rolls in 43rd Rep. of Dep. Keeper.
[126 ] During Henry’s reign there seem to have been several years in which no court was sitting at Westminster, eyres having been proclaimed in all or most of the counties: Note Book, i. pp. 141–42.
[127 ] As to these articles see Select Pleas of the Crown (Selden Soc.), p. xxii. More of them in our section on Trespasses.
[128 ] The proceedings of an eyre can be best studied in Page, Three Assize Rolls for Northumberland (Surtees Society), and in the rolls which Mr. Chadwyck Healey is publishing for the Somersetshire Record Society.
[129 ] Bishops were largely employed in the first eyre of the reign. In 1236 the appointment of an abbot is a scandal; Rob. Grosseteste, Epistolae, pp. 105, 108.
[130 ] Ann. Dunst. p. 135 (1233): “quorum metu omnes ad silvas fugerunt.”
[131 ] Ann. Wigorn. p. 446 (1261). Close Roll, Hen. III. No. 77, m. 9 d: an eyre in Norfolk is postponed as seven years have not elapsed since the last eyre.
[132 ] A “nisi prius” clause was occasionally used as early as 1225; see Not Book, pl. 721 and many other cases. The burden of jury service was not so intolerable as it might seem, did we not remember (1) that by far the most popular of all actions were the assizes of novel disseisin and mort d’ancestor; (2) that these assizes were not as a general rule actions pending in the court at Westminster, but were from the moment of their inception consigned to justices of assize; (3) that “trespass” did not become common until late in the reign; (4) that jurors were seldom required for actions of debt or detinue or for actions on prohibitions; (5) that a “grand assize” was, or ought to have been, constituted of knights.
[133 ] Mat. Par. v. 213, 223, 240, charges against Henry of Bath; v. 628, against Henry de la Mare.
[134 ] Charter, 1215, c. 34.
[135 ] Petition of 1258, c. 29: the great lords are not to make their courts tribunals of second instance. Provisions of Westminster, c. 9, 10, damages are to be given in the assize of mort d’ancestor; c. 6, procedure in dower unde nihil habet (an action which controverts feudal principles) is to be speedier; c. 18, the royal control over all actions touching freehold is to be secured. Stat. Marlb. c. 29: the scope of the writs of entry is to be extended at the expense of the writ of right.
[136 ] Bracton, f. 106, a defence of dower unde nihil habet; f. 281, a defence of the writ of cosinage; comp. Note Book, pl. 1215.
[137 ] Bracton, f. 414 b: “pertinet enim ad regem ad quamlibet iniuriam compescendam remedium competens adhibere.”
[138 ] Note Book, i. pp. 144–45.
[139 ] Foss, Judges, ii. 270. It is convenient to give the title of “chief justice” to the series of presidents of the king’s bench which begins at or about this point, reserving “chief justiciar” for the line of first ministers or viceroys which is becoming extinct. But this is a modern artifice. The change of style was really a very small one; it consisted in adding to the old title “Capitalis Justiciarius Angliae” the limiting words “ad placita coram Rege tenenda.” So long as Latin is used, a justice is a iusticiarius, a chief justice is a capitalis iusticiarius. In the twelfth century iustitia had been the commoner title.
[140 ] Foss, Judges, iii. 142, makes Gilbert Preston the first chief justice of the common pleas.
[141 ] Note Book, i. pp. 24–25.
[142 ] Mat. Par. Chron. Maj. iii. 293.
[143 ] cc. 1, 2, 4, 5, 10, X. 3, 50. Ann. Burton. p. 308–9: Articles of inquiry into the life of the clergy; “An aliqui sint . . . iustitiarii saeculares . . . An aliqui beneficiati audiant vel doceant leges saeculares.” Grosseteste, Epist. p. 266: Robert Lexington has piled irregularity upon irregularity by hearing criminal causes on Sunday. From another letter (p. 106) we learn that a clerical justice would salve his conscience by leaving the bench when a sentence of death was to be passed. The clerks who write the plea rolls have scruples about writing the word “suspendatur”:—“et ideo habeat iudicium suum,” or simply “et ideo etc.” will be quite enough.
[144 ] Mat. Par. Chron. Maj. iv. 49: “Thomas de Muletuna, miles in armis cum iuventus ei arridebat, et cum provectioris esset aetatis abundans possessionibus legisque peritus saecularis.” Ibid. v. 317: “Rogerus de Thurkebi miles et literatus.”
[145 ] Laurence de Brok, who often represented Henry III. in litigation, seems to be one of the first men who climb to the judicial bench from the bar; Foss, Judges, ii. 267. It is by no means impossible that Martin Pateshull was clerk to Simon Pateshull (see above, p. 180), that William Raleigh was Martin’s clerk (Maitland, Gloucestershire Pleas of the Crown, p. xiii), that Bracton was Raleigh’s clerk and thus inherited the rolls that he used. William of York had been a clerk in the chancery: “I raised you from the depths; you were the scribbler of my writs, a justice and a hireling,” says King Henry; Mat. Par. Chron. Maj. v. 374.
[146 ] See Bracton’s Note Book; also Bracton and Azo (Selden Soc.).
[147 ] Bracton’s Note Book, vol. i. The discovery was due to Prof. Paul Vinogradoff.
[148 ] See Güterbock, Henricus de Bracton; Scrutton, Roman Law in England; Bracton and Azo (Selden Soc.).
[149 ] The nearest approach to an admission that Roman law may be employed to eke out English law is to be found on a roll of 1237–38, Note Book, pl. 1227. The question is as to whether a palatinate can be partitioned among co-heirs; the magnates, prelates and justices declare that they never heard of a similar case, that they do not know whether there is anything about it in Magna Carta, that they will not follow foreign precedents, and that they have seen no such case in iure scripto (i.e. in Roman law); therefore they adjourn their decision. Any notion that this country was in any way subject to the empire would have been scouted in England. Just when Bracton was writing it had become extremely probable that the Emperor for the time being would, when in England, be a subject and vassal of the king of England. Ricardus Rex Alemanniae (he was Rex Romanorum semper augustus) was impleaded for a novel disseisin; Placit. Abbrev. p. 145.
[150 ] Abbrev. Placit. p. 128: “nunquam se dimisit de terra illa corpore nec animo.” This is from one of the rolls which record Bracton’s doings as a justice of assize. They are to be edited by Mr. Chadwyck Healey. As to the usufruct, see Note Book, i. p. 91–93.
[151 ] Bracton, f. 2 b, 3: “Ius dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat: iustitiam namque colimus et sacra iura ministramus.” This old phrase (Dig. 1. 1. 1) is no cant in Bracton’s mouth; he feels that he is a priest of the law, a priest for ever after the order of Ulpian.
[152 ] Note Book, i. 104–116.
[153 ] For the anti-feudal inclination see the argument in favour of free alienation; Bracton, f. 45 b–46 b. For the anti-ecclesiastical tendency see the whole treatment of the writ of prohibition, f. 401–410, many sentences in which flatly contradict claims which were being made by the high churchmen of the day. Bracton, however, if we mistake not, is within the ecclesiastical sphere a thorough-going papalist. He ascribes to the pope not merely a jurisdiction, but an ordinaria iurisdictio, over all men. As to his political opinions see Note Book, i. pp. 29–33. We cannot decide what they were until some certain answer has been found for the question whether he wrote the fiery words on f. 34; but the moderate and unquestioned passage on f. 171 b is enough to show that he was neither a courtly flatterer nor a champion of despotic monarchy; this however is evident enough from many other passages, including that (f. 107) in which he wilfully distorts (Note Book, i. p. 4) the “sed et quod principi placuit.”
[154 ] Selden, Dissertatio ad Fletam, p. 456.
[155 ] Nichols, Introduction to his edition of Britton.
[156 ] Walter of Henley, ed. Lamond and Cunningham.
[157 ] Brevia Placitata, now being edited by Mr. G. I. Turner.
[158 ] The Court Baron (Selden Soc.), Introduction.
[159 ] See the edition of Walter of Henley cited above.
[160 ] Select Pleas in Manorial Courts (Selden Soc.), Introduction.
[161 ] Brunner, Forschungen, p. 389; Brunner, D. R. G. ii. 349.
[162 ] Leg. Henr. 46, 47, 48, 49, 61 § 18, 19.
[163 ] Leg. Henr. 46 § 3: “Bonum autem est, ut cum alicuius consilium in placito redditur, cum emendatione dicendum praedicatur, ut si forte perorator vel superadiecerit aliquid, vel omiserit, emendare liceat ei. Saepe enim fit, ut in sua causa quis minus videat quam in alterius, et in ore alterius plerumque poterit emendare quod in suo non liceret.”
[164 ] Note Book, pl. 298. So in pl. 131: “deadvocat quod narrator suus pro eo narravit.” So in pl. 1106: “Alanus de Waxtonesham qui narravit pro Eustachio in misericordia, quia Eustachius deadvocavit id quod pro eo narravit.”
[165 ] The Court Baron (Selden Soc.), p. 41. References to this practice may be found in the Year Books, e.g. Y. B. 33–35 Edw. I., pp. 297, 458.
[166 ] Mat. Par. Chron. Maj. iii. 124. It is noticed as somewhat strange that in 1227 the king’s brother Earl Richard of Cornwall should urge his claims before the king “sine aliquo advocato rationabiliter simul et eloquenter.”
[167 ] Glanvill, lib. xi.
[168 ] See Stat. West. II. c. 10, which gave a general right to appoint an attorney to appear in all causes which should come before the justices in a given eyre.
[169 ] Registrum Brevium Originalium, ff. 20–22.
[170 ] Britton, vol. ii. p. 357.
[171 ] Select Civil Pleas, pl. 141.
[172 ] Note Book, pl. 342, 1361, 1507.
[173 ] See above, p. 168.
[174 ] Gesta Abbatum, i. 136: “Robertus [Abbas S. Albani] . . . Magistrum Ambrosium, clericum suum, legis peritissimum, Italicum natione (de primis tempore, scientia et moribus, Angliae legis peritis) Romam . . . destinavit.” See also Liebermann, E. H. R. xi. 313–14.
[175 ] On 31 March, 1163, Glanvill appeared along with Anesty at Windsor; at Michaelmas in that year he became sheriff of Yorkshire.
[176 ] Mat. Par. Chron. Maj. iii. 111: “Ricardus de Marisco Dunelmensis episcopus . . . cum tumultu valido reboantium legistarum.” Ibid. 531: “Miserat enim [rex] ad curiam Romanam unum legistarum suorum, quorum magnam catervam retinuit, quasi venator canes venaticos, super electores praelatorum discopulandos, videlicet Simonem Normannum.” Ibid. 268, “Rogerum de Cantelu legistam”; 483, “Magister Odo [de Kilkenny] legista”; 491, “legistas suas Romipedas”; 491, “Simonem Normannum et Alexandrum Saecularem legistas conductitios”; iv. 266, “Alexandrum legistam, cognomento Saecularem.”
[177 ] See above, p. 130.
[178 ] Thus, iii. 190, Pateshull is “legum terrae peritus”; iii. 525, Raleigh is “legum terrae peritissimus”; iv. 49, Multon is “legis peritus”; iv. 587, William of York is “legum regni peritissimus.”
[179 ] Mat. Par. Chron. Maj. iii. 619: “licet Rex cum omnibus prolocutoribus banci quos narratores vulgariter appellamus in contrarium niteretur.” The Latin narrator and its French equivalent contour became technical terms. If an English term was in use, it was perhaps forspeaker.
[180 ] Madox, Exchequer, i. 236.
[181 ] Liber de Antiquis Legibus, 42–43.
[182 ] Mat. Par. Chron. Maj. iii. 439–40; Joh. de Athona, p. 70.
[183 ] Stat. West. I. c. 29.
[184 ] Rolls of Parliament, i. 84.
[185 ] So early as 1253 the Bishop of Rochester was impleaded by the Archbishop of Canterbury in the king’s court, “et Abell de S. Martino venit et narravit pro episcopo et non fuit advocatus; ideo in misericordia”; Placit. Abbrev. 137. We cannot be quite certain that the objection to Abel was that he was not a member of the legal profession; perhaps the bishop had given him no authority to plead his cause.
[186 ] Liber Custumarum, i. 280 (ad 1280).
[187 ] Cart. Rams. i. 428.
[188 ] Pleas in Manorial Courts (Selden Soc.), 155, 159, 160.
[189 ] Walter of Hemingford (ed. Hearne), ii. 208, tells how in 1304 the Abp. of York was impleaded. “None of his counsel nor any of all the pleaders (narratores) could or dared answer for him. So in his own person, like one of the people, and before all the people, he made his answer bareheaded:—for the men of the court did not love him.”
[190 ] See e.g. Y. B. 30–31 Edw. I. p. 107.
[191 ] Y. B. 33–35 Edw. I. p. 471. The allusion is to Cod. 3. 31. 11: “Cogi possessorem ab eo, qui expetit, titulum suae possessionis dicere, incivile est.”
[192 ] Y. B. 33–35 Edw. I. p. 9; 30–31 Edw. I. p. 57; 21–22 Edw. I. 295.
[193 ]De regulis iuris, in vi to.
[194 ] Britton (ed. Nichols), ii. 65.
[195 ] Constitutions of Otho (1237), Mat. Par. iii. 438; Joh. de Athona, p. 67: “Quoniam tabellionum usus in regno Angliae non habetur.” See Selden, Titles of Honour, Works, ed. 1726, vol. iii. pp. 131–32, 467. A book of English precedents of the thirteenth century remarks that for a bond two witnesses with the tabellio or notary are enough; see L. Q. R. vii. 66. We must remember, however, that a mercantile bond should be so attested that it will be valid in foreign courts.
[196 ] Foedera, i. 784: “Ego Johannes Erturi de Cadomo apostolicae sedis auctoritate notarius.” This John Arthur of Caen was a master of the chancery.
[197 ] Bethmann-Hollweg, Civilprozess, vi. 189, gives an account of this book. The author says to the archbishop: “Cum solempnis vestra curia et regnum Angliae quasi totum personis careat, quae secundum formam Romanae curiae vel idoneam aliam qualemcunque intellectum et notitiam habeant eorum quae ad artem pertinent notariae.” From the ignorance of the English scribes “iudicibus obprobrium et partibus incommodum saepe proveniunt.” John of Bologna seems to have been employed by Peckham and to have obtained a benefice in Wales: Peckham’s Register, i. 45, 278; iii. 1009.
[198 ] Maitland, A Conveyancer in the Thirteenth Century, L. Q. R. vii. 63; The Court Baron (Selden Soc.), pp. 7, 12–14.
[199 ] A good specimen is given in Mat. Par. iii. 329; but many may be found elsewhere.
[200 ] Y. B. 30–31 Edw.: “Defaute de bon serjant fet B perdre sez deniers.”
[201 ] Leg. Henr. 46 § 3.
[202 ] Statutes, i. 55.
[203 ] Note Book, pl. 1474.
[204 ] Royal Letters, Henry III., vol. ii. p. 353: “Vestram rogamus regiam dignitatem quatenus . . . leges terrarum vestrarum ubique per Walliam et per Marchiam nobis concedere velitis, et hoc est, quod innocens non puniatur pro nocente, nec etiam imputetur parentelae alicuius si aliquis de parentela interfecerit aliquem vel furtum vel aliquam seditionem [fecerit] nisi ipsi malefactori.”
[205 ] As to the transmission of the register, see Harv. L. R. iii. 110. For an early case in which an Irish judgment is corrected in England, see Rot. Cl. p. 549; there are several other cases on the rolls of Edward I. For Irish petitions to the English council, see Memoranda de Parliamento, 33 Edw. I. p. 232.
[206 ] Calendar of Papal Registers, i. 283: Constitution (1253), whereby in the province of Cashel the evil custom of giving credence to an Englishman on his oath touching a theft, if supported by six Englishmen, while an Irishman, whose innocence is testified by thirty witnesses, has to make restitution, is abolished, and equal justice is ordered to be done between English and Irish.
[207 ] Memoranda de Parliamento, 33 Edw. I. pp. 253–54.
[208 ] Acts of Parliament of Scotland, i. 413; Neilson, Trial by Combat, 126.
[209 ] In Acts of Parliament of Scotland, vol. i, Regiam Maiestatem is collated with Glanvill. The present state of the question as to its date may be gathered from Neilson, Trial by Combat, pp. 99–104. Of all the various theories that have been started, that which ascribes this book to Edward I. will seem to an Englishman the most improbable. If Edward had attempted to foist an English law book on Scotland, that book would have been founded on Bracton or Britton and not on the antiquated Glanvill. The English law that is borrowed is distinctly law of the twelfth century.
[210 ] Schröder, D. R. G. 746. The Roman law that comes to England is the law of the early “glossators.” The Roman law that wins victories in Scotland and Germany is the law of the later “commentators” (Baldus, Bartolus and so forth) which has accommodated itself to practical needs.