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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

PART 3

SOME FACTORS IN LEGAL HISTORY

SUMMARY

• Some Factors in Legal History - - - -
• chapter 1.The Civil Law of Rome - - - - -
• chapter 2.The Canon Law of the Church - - -
• chapter 3.Custom - - - - - - - -
• chapter 4.Legislation - - - - - - - -
• chapter 5.The Principle of Precedent - - - -

SOME FACTORS IN LEGAL HISTORY

In Part I of this general survey we have placed the law in its environment of national life as a whole. We have seen its early dependence on the crown, its gradual separation from royal administration, and its final assumption of an independent position in the state, as a result of its victory in the conflict of the seventeenth century.

In Part II we have watched the development of the institutions through which the law has worked, some of them ancient and communal, others a little more recent and feudal, and still others of even later date whose origin was due to the crown. With the passage of time these royal courts supersede all the rest, and begin to be regarded as a judicial system which ought to be, and finally was, taken apart and reassembled in logical fashion as an organisation for the speedy and convenient administration of justice. There has been in fact a steady growth of the conception of law as distinct from its machinery; the idea of jurisdiction with its implications of monopoly and profit to courts, their owners, and their practitioners, has yielded to the newer feeling that institutions are valuable only so far as they fulfil useful functions.

We now come to a third part, where a brief examination of some of the more imponderable factors in legal history must be made. Leaving aside the visible institutions into which lawyers were organised, we must consider the thought which animated them, and first of all certain external forces such as civil and canon law. After that we shall discuss custom, legislation and precedent from the same point of view.

CHAPTER 1

THE CIVIL LAW OF ROME

THE BARBARIANS AND ROMAN LAW

For twenty-five centuries Roman law has had a continuous history of which only a relatively small portion lay in the middle ages or influenced English legal development. Into this complicated story we cannot enter. As Vinogradoff said, “The story I am about to tell is, in a sense, a ghost story. It treats of a second life of Roman law after the demise of the body in which it first saw the light.”1 At the moment when it begins to concern us the classical Roman law had already entered upon its decline. With the fall of the Roman Empire the once universal system of Roman law depended for its continued existence upon custom, and it was largely in the form of custom that it continued to be applied during the middle ages. With the establishment of the new Teutonic kingdoms in the fifth century this aspect of Roman law was conspicuous; the problems raised by the clash of races were solved by a system of personal laws whereby each individual was subject to the law peculiar to his race—a system which still obtains in several parts of the world where numerous different races and religions are in close contact, as in Palestine. The barbarian kings, therefore, were put to the trouble of finding out the principal rules of this personal Roman law to which many of their subjects were entitled, and a number of texts from about the year 500 embody the results. Farther east, Roman law retained to some extent its imperial character and in 438 portions of it were codified by the Emperor Theodosius. In the west, however, Roman law suffered the common fate of personal laws and rapidly degenerated in quality and diminished in quantity—at least from the point of view of a classicist. It was inevitable that there should be cross influences; Roman law was modified as a result of neighbouring customs, while on the other hand originally Germanic customs underwent a certain degree of Romanisation.1

ROMAN LAW IN THE MIDDLE AGES

All through the middle ages, therefore, there were two aspects of Roman law. First there was that of the pure academic doctrine which was from time to time revived through the learning of scholars; but in contrast with it there was the customary Roman law which had grown up in numberless communities all over Europe, and which had been modified in infinite variety according to local needs. Between these two aspects of Roman law there was not infrequently open conflict, for scholars naturally wished to restore the orthodox doctrine of classical times, and were apt to be impatient when less learned lawyers persisted in retaining the practical working-day law of their local communities. By this time there was no practical question of academic Roman law being imperially enforced—the Holy Roman Empire itself bore little resemblance to the Roman Empire of the classical Roman law. The struggle between these two views of Roman law took place principally in the universities, and may be roughly described as an attempt made from time to time by certain law schools to influence practice. It may very well be that the great mediaeval Romanists took too academical a view of the situation, and some of their attempts to restore classical law were ill-advised. Nevertheless it was they who accomplished the great feat of the middle ages in preserving classical law for many centuries during which it remained of ideal rather than practical value, until such time as society had sufficiently developed in thought and economic structure to be able to appreciate and make full and wise use of its ancient inheritance; while the more practical school of Bartolus and his followers had already made of it a body of living, growing law. It was the Romanists who maintained through the middle ages a scientific attitude towards law, and even in those cases where we find a scientific approach to bodies of non-Roman law it is, in fact, usually due to the example of the Romanists. Our own Glanvill and Bracton are eminent examples.

THE RECOVERY OF JUSTINIAN’S BOOKS

Until the close of the eleventh century, Western Europe had relied principally upon the Theodosian code and abridgments of it for an official text of Roman law, in the light of which it developed its various local Roman customs. Early in the twelfth century the great Corpus Juris Civilis of Justinian, which came a century later2 than that of Theodosius, began to be studied in Italy, where it took a natural part in the great revival then going on in various branches of culture, assisted no doubt by the new material prosperity of the Italian cities. Justinian’s books were much larger and much more thorough in their return to classical Roman law than the code of Theodosius. In Constantinople there were greater facilities both in books, in tradition, and in spirit for an antiquarian revival—for to some extent this was the nature of Justinian’s work; the jurists whose opinions figure most frequently in the Digest were as remote from his day as Coke is from ours. To the professors of the Law School of Bologna the books of Justinian came as a new revelation. At their head was the great Irnerius (d. 1135) and around him were his pupils, including the famous “Four Doctors”, Bulgarus, Martinus, Ugo, and Jacobus. Hardly less distinguished were Azo, from whom Bracton learned a great deal, and Vacarius, who travelled from Italy to the distant University of Oxford.1 There soon arose a school of glossators whose commentaries upon the books of Justinian were finally summarised in the thirteenth century into one great gloss by Accursius (1182-1260), whose son, Francis, visited the court of Edward I, attended a Parliament, and saw the enactment of a statute.2 This academic movement in the end went too far; the refinements and subtleties of the doctors were too much for the common people who insisted upon retaining their imperfectly Romanised customs. A reaction therefore occurred, and Bartolus (1314-1357), frankly recognising the place which local custom actually held, and the difficulties created by local custom and local legislation (of which there was a good deal), applied himself to the study of the problems of statute law and conflict of laws3 which were constantly arising in Italy in the course of inter-city commerce.4

CUJAS AT BOURGES

The next great revival of Roman law was in the sixteenth century, and began in the tiny University of Bourges which sprang into fame on account of its illustrious teacher Cujas (1522-1590). The origin of the movement was in the Renaissance, and its object was pure scholarship, aiming at the restoration of classical Roman law and good Latin instead of the mingled custom and graceless language of the Bartolists. In the field of jurisprudence and legal history the School of Bourges exerted immense power, but practice was less amenable to university influence. This was fortunate on the whole, for however valuable the study of philosophy and legal history might be to the formation of a science of law, there was nothing to be gained by denying the experience of over a thousand years of legal development. As one example, the civilians introduced mischief in the sixteenth century when they attacked the transferability of debts, as then universally practised by mercantile custom, on the ground that it conflicted with the law laid down a thousand years earlier in the books of Justinian.1

ROMAN LAW IN ENGLAND

It now remains to indicate very briefly the principal points of contact between English and Roman law. As we have already remarked,2 Roman influence begins in England with the coming of Christianity, and its specific influence upon Anglo-Saxon legal doctrine can be traced principally in the law relating to bookland. After the Conquest, England became once again a part of the European system, and Glanvill’s treatise shows some familiarity with the Roman texts. No doubt one of the principal links between English law and Italy was Lanfranc. In the eleventh century he had taught in the Law School of Pavia; then he went to Normandy, founded the school at Bec, and became the chief adviser of Duke William, who brought him to England and made him Archbishop of Canterbury; this must have made him a very powerful source of foreign influence—it has been observed that Domesday Book itself is written in an Italian style of handwriting. Lanfranc’s foundation at Bec influenced England for a long time; from Bec there came Anselm who precipitated the Investiture Contest in England; after him came another archbishop, Theobald, in whose household Thomas Becket had been trained, and who brought Vacarius to England.3

When we come to the reign of Henry II we find even more direct influences at work.4 By this time we have to reckon not only with Roman law, but also with canon law, which was partly a Romanisation of the Church’s customs, and partly an attempt to adapt Roman law to Christian and mediaeval use. It may be that Glanvill’s treatise was in imitation of some of the little books of canonical procedure which became frequent at this time,5 while Vinogradoff has suggested that there is significance in the fact that William Longchamp, Justiciar to Richard I, had written a short treatise on canonical procedure in which he urged the advisability of establishing definite formulae of actions.6 It may be that this treatise had some influence in causing Glanvill to insist upon the importance of the original writ and to plan his book as a commentary upon writs and forms of action.1 Already the canon law rules on the competence of witnesses were borrowed by Glanvill, who used them as challenges to jurors. Glanvill also took pains to point out that when the King’s Court uses the Latin word dos it does not mean the dowry of Roman law, but the completely different dower of English law, while at the same time he observes that there are differences between the English and the Roman law of legitimacy. He even gives us the different forms of contract known to Roman law, but immediately observes that the King’s Court takes no notice of them. It seems clear that Glanvill anticipates that his readers will have some knowledge of Roman law, but it is equally significant that he frequently has to warn them against being misled by superficial resemblances. As we shall see later on, the principle of the assize of novel disseisin was deliberately borrowed from canon law, which developed it from Roman models.

When we come to Bracton, as we have already seen,2 the problem of Roman influence, first upon Bracton himself, and secondly upon English law (these two different problems must always be carefully distinguished), raised many complicated questions. With the close of the age of Bracton the most influential period of Roman law in England comes to an end until we reach the sixteenth century, when it was raised in somewhat different forms. All the same, it is now clear that many monasteries in England were well equipped with books on Roman law,3 and its influence never entirely ceased. Some of our forms of action are definitely of Roman or canonical origin (such as novel disseisin and cessavit), while even our statutes may import Roman devices, such as double and treble damages. The distinction between private and public law was a discovery of the Romanists, and some parts of our public law—the idea of treason (even in Anglo-Saxon times) and the conduct of state trials—were in danger of being romanised.4 On the other hand, the queer legend that Roman law survived in English towns has long been exploded.5

ENGLAND AND THE RECEPTION

On the continent there was the great movement called the Reception, when many courts, from the Imperial Chamber in Germany down to petty lordships and cities, abandoned their traditional law and adopted instead the civil law, generally in a Bartolist form. This resulted from a mingling of many motives, some legal and constitutional, others political, religious and economic. The Reception on the continent had its echo in England, and Maitland even went so far as to suggest that during the reign of Henry VIII the common law itself was in danger from the civilians. This view is certainly somewhat exaggerated.1 However high a view Henry VIII may have taken of his position, it is clear that he regarded it as based upon the common law, and although with some difficulty he succeeded in managing his Parliaments, he was well aware of the important position Parliament now occupied as a national legislature and of the decisive influence which the common lawyers exercised in it. This combination of common law and Parliament made any substantial legal changes very difficult—as witness the events leading to the Statute of Uses.2 But, as Sir William Holdsworth remarks, although the continued existence of the common law was never in serious danger, yet its supremacy as the one and only legal system in England was vigorously challenged. The Councils and Star Chamber, the Courts of Requests and of Admiralty, made a high bid for jurisdiction over the whole of commercial law and portions of criminal law, and threatened to develop a constitutional law of their own. Chancery, too, became infected with the same spirit. During the middle ages equity was not regarded as being altogether outside of the common law system, still less as essentially hostile to it, but at the beginning of the seventeenth century Chancery was regarded by the Stuarts as one of the prerogative courts, and there was a danger that the common law would be challenged by a rival civilian system developed in Chancery as well as in the prerogative courts. This situation was well understood at the time, and produced a controversial literature which intelligently attacked the problem. In such a state of feeling there was no room for direct Roman influence upon English law. Indirectly, however, there was still opportunity for contact. As we have already observed, Bracton had looked very far ahead in several parts of his treatise. Questions then unsettled, fields of law with which the common law courts in his day refused to be concerned, he explored, taking Roman law as his guide. In the sixteenth century when lawyers were searching for help in expanding the common law, they turned to the pages of Bracton. His book was printed for the first time in 1569; his imitator, Britton, had already been printed about 1534; and readers of both these works came into contact with Bracton’s Romanism, which they found already adapted, more or less, to common law needs.

LATER ROMAN INFLUENCES

Under the later Stuarts, civilians were particularly active, and the Dutch wars kept the Admiralty busy. As in the middle ages, they continued to be regarded as the experts in legal theory and legislative policy; thus they were much consulted when the Statute of Frauds1 was being drafted, and it was said by Jekyll, M.R., that “the Statute of Distributions2 was penned by a civilian, and except in some few particular instances mentioned in the statute, is to be governed and construed by the civil law”.3

It is since the Restoration and during the early and middle eighteenth century that Roman law once again exercised noteworthy influence upon English legal doctrine, and here too Bracton is the key to the situation. It is worth noting that a new edition was brought out in 1640. Lord Holt presided over the King’s Bench from 1689 until 1710, and although he was in no sense a profound Romanist, yet he had been a careful student of Bracton, and through his decisions some of the academic speculations of Bracton became living common law.4 A generation later Lord Mansfield carried on the work. The law of his native country, Scotland, had undergone the Reception and had thereby been considerably Romanised, but, as with Holt, it was his reading of Bracton as a student which turned his mind definitely to a study of Roman law at first hand.5

All through the eighteenth century English lawyers were reading Continental works on natural law and jurisprudence, while English scholars were themselves producing comparative studies of their own and foreign systems. Particularly interesting to them were the works of Pothier which circulated widely in England and America, both in the original French and in translation. A study of the books bought by old libraries, and of books translated for the publishers, will show that men like Holt and Mansfield were not lonely geniuses, but outstanding examples of the spirit of legal inquiry which was abroad during this supposedly “stagnant” century.

Even at the present day English courts upon occasion will refer to Roman law in something like Bracton’s spirit in rare cases where the native law gives no guidance.6

CHAPTER 2

THE CANON LAW OF THE CHURCH

We have already casually referred to the growth of Church organisation which accompanied the decline of the Roman Empire.1 For a time it seemed as though the Church was the only body which could carry on the ancient tradition of universal law. The sources, both official and unofficial, for ecclesiastical law, grew steadily in quantity and variety and at last proved overwhelming, not only in their bulk but also in the difficulty of assigning to each its proper value and sometimes even of determining its authenticity.

THE EARLY COLLECTIONS

The forces of feudalism had compelled the Church as well as the State to decentralise, and the result was a large mass of local ecclesiastical law. When the worst days were passed and the Church began to reorganise itself on the basis of the papal monarchy, it was a prime necessity to bring some sort of order into ecclesiastical law. In the eleventh century systematic research was undertaken in order to find authorities in canon law which were ancient and universally recognised; libraries were searched, and it has been plausibly suggested that the discovery of the Florentine manuscript of Justinian’s Digest may have been one of the results. Even so, the mass even of admissible material was enormous and its interpretation particularly difficult. A number of scholars attempted to collect the more important texts, to reconcile them with one another, and to unite them in one coherent commentary. One of the more successful of these attempts was that of Ivo of Chartres, whose Decretum appeared about 1095.2 Ivo developed a distinction which assisted considerably in reconciling the discordant mass of material which lay before him. Some rules, in his opinion, were fundamental, and must be preserved at all costs; others were more local, particular, or accidental, and although there might be reasons for their validity in particular cases, they must not be regarded as limitations upon fundamental rules of law. With this sensible notion a great deal could be done, for although it allowed plenty of room to legitimate exceptions, it nevertheless kept its eye firmly fixed upon broad principle.

THE DECRETUM OF GRATIAN

At the same time the study of civil law based upon the newly discovered texts of Justinian was likewise flourishing, and all through the middle ages the canonists and the civilians were at odds. The two systems tended more and more to separate: the civilians looked to antiquity and were often tempted to become mere theorists or antiquaries, while the canonists were more concerned in adapting Roman law with great freedom to contemporary conditions, and in replacing its paganism by a Christian spirit. The civilians, too, were apt to take the side of the Emperor against the Pope. The study of civil law was forbidden to monks in 1180 and to priests in 1219; Henry III in 1234 ordered the sheriffs of London to close the schools of civil law. These measures were ineffective in suppressing the study of civil law, but they succeeded in establishing the right of the canonists to develop their law in accordance with current needs as they understood them, without being bound by ancient authority. The systematisation of canon law was carried still further by the great work of Gratian whose Decretum appeared very soon after 1140. Its general character is admirably expressed by the title which he gave it, “The Concordance of Discordant Canons”. So well did Gratian do his work that his results were accepted as being virtually final, and although his Decretum was unofficial and never received legislative force, yet in practice it was treated with great respect, and indeed has taken an undisputed place as the first portion of the Corpus Juris Canonici. It is also highly significant that just at this moment the famous Peter Lombard was publishing his Sentences which attempted something like the same task for theology; the appearance of these two books, the Decretum and the Sentences, marks the definite separation of canon law from theology.

THE CORPUS JURIS CANONICI

The papacy became increasingly active and a series of great councils added considerably to the body of universal canon law; thus the Third Lateran Council of 1179 established a system of cathedral schools and severely punished usury; the Fourth Lateran Council (1215) forbade clergy to take part in judicial ordeals,1 and passed seventy chapters of reforming canons. The Pope also legislated by means of decretal letters which decided particular law cases and at the same time laid down general rules of law. Many unofficial collections of these Decretals were made, and at length an official compilation was published in 1234 with statutory authority by Gregory IX. The texts in this collection were arranged in five books, and when in 1298 another collection of those Decretals which were issued since 1234 became necessary, it was published as a sixth book and is therefore called The Sext. The last few pages are of interest to common and equity lawyers, for they contain a collection of maxims some of which became well known in the English courts. The Decretum of Gratian, the Decretals of Gregory IX, the Sext, and a few smaller collections, form the Corpus Juris Canonici.1 At the same time there arose a host of commentators, text-book writers and experts on procedure who have left us an immense literature.

THE SPIRIT OF THE CANON LAW

Throughout all this period the canonists were constantly endeavouring to make their system correspond as closely as possible with the ideal of Christian conduct, and to reduce to a minimum the divergence between law and morals.2 A great danger was that—

THE SCOPE OF CANON LAW

Although a great deal of the Church’s law was naturally concerned with its world-wide organisation, the powers and duties of the various ranks of clergy, and the spiritual discipline of churchmen, regular, secular and lay, nevertheless a great deal of it did affect the daily life of the laity in a variety of ways, and in the end exerted profound influence upon the development of national laws. The most important, no doubt, is the law of marriage, which is of fundamental importance in every society. In the law of wills the Church succeeded in greatly simplifying the civil law on the subject, while it also influenced the law of intestate succession. On this latter subject the views of the Church were singularly modern, for she opposed the feudal notions which excluded women from the inheritance of land, and urged that land and chattels should descend along similar lines. As we shall see later, the Church also took up the idea of protecting possession as such, and developed a series of possessory remedies. Although the theory of possession and ownership was no part of the English law of land, yet the canonical idea was easily adapted and a recent disseisin was protected by Henry II’s Assize in the same way as a recent dispossession in canon law. In connection with the theory of possession the Church also modified the Roman law of prescription by insisting that good faith was absolutely necessary not only at the commencement but all through the period upon which the prescription was founded. “The civil law punished the negligence of the owner who did not possess; the canon law reproved the sin of one who sought to prescribe without good faith.”1

In the field of contract the Church’s contribution was most notable, for here again the Christian conception of good faith was employed to great effect. As many of the greatest fairs and their courts were owned by churches, there was ample opportunity to free the law of contract from formalism, and finally the canonists declared, in spite of the Roman maxim ex nudo pacto actio non oritur, that a simple promise was enforceable. It must have needed a great deal of courage to reach this position when against it was all the authority of Roman law and the custom and practice of most of the other systems of secular law.2

ECONOMIC VIEWS OF THE CANONISTS

The Church also attempted—and here she was, for the time being, less successful—to impose her view upon economic life. The attempts to suppress usury are well known; they are in fact part of a general theory of wages and profits which looked with favour upon the products of labour while it regarded as suspect the profits of speculation, banking, and finance. Acting from the same point of view, the Church discountenanced the fluctuations in wages and prices caused by the law of supply and demand, and attempted to maintain fixed standards of value. On the other hand, the liberal and equitable view which the canon lawyers took of contract considerably aided the development of commerce in other directions, for it did not confine contract within the limits of the civil law of a remote age; insurance and the assignability and negotiability of debts are striking examples of matters which the canonists developed on the basis of good faith, but which the civilians refused to touch. Similarly the canonists developed a summary procedure which was widely copied by other systems (defined in the famous decretal Saepe in 1306), and here again the canonists broke with formalism in an earnest attempt to do speedy and substantial justice.1

THE CHURCH AND CRIME

In the field of criminal law the Church also made a notable contribution by insisting that crime should be treated from the point of view of sin, and consequently the theories of the moral theologians concerning the place of intention in sin became part of the law of crime. Mediaeval punishments were frequently cruel, and in many cases capital, but the Church introduced the idea of imprisonment in an endeavour to bring the offender to repentance through solitary contemplation. As part of her criminal procedure she adopted and modified the civilian criminal procedure, and here again a great deal of formalism was abandoned and much was left to the discretion of the judge in examining witnesses and weighing their evidence. Even after the Reformation had struck a seemingly heavy blow at the canon law, its influence was still powerful, for the Bartolists had been glad to embody in their system of civil law a good many ideas drawn from the canonists, and so the Reception was often as much a reception of canon as of civil law.

THE CANONISTS’ CONTRIBUTION

During the middle ages the Church was the one body which exercised universal jurisdiction, and which therefore could act as a bond of union between the divergent forces of the day, and the unity which she achieved has had lasting results upon law. As it has been admirably expressed by Professor Le Bras:

CHAPTER 3

CUSTOM

The conditions of society, and men’s attitude towards them, are slowly but constantly changing, and the law must do its best to keep in harmony with contemporary life and thought. The law, too, must therefore change, and one of the most instructive aspects of legal history is the study of the various means which have served to bring about the necessary revision of the legal fabric.

THE FLEXIBILITY OF CUSTOM

The modern age of legislation by means of laws deliberately set up and expressed in certain authoritative texts covers but a very small period of legal history. Preceding it the principal element in most legal systems was custom. There were, of course, other factors as well in many cases. In canon law, for example, there were authoritative texts from the Bible and elsewhere, and most systems had at least a few examples to show of deliberate legislation. But the great mass of the law into which these exceptional elements had to be fitted was custom. Our earliest Anglo-Saxon “laws” are modifications of detail and obviously assume that the legal fabric is essentially customary. The communal courts which survived into historical times, especially the hundred and the county, were customary in their origin, and declared customary law whose sanction was derived from custom. But the remarkable feature of custom was its flexibility and adaptability. In modern times we hear a lot too much of the phrase “immemorial custom”. In so far as this phrase implies that custom is or ought to be immemorially old it is historically inaccurate. In an age when custom was an active living factor in the development of society, there was much less insistence upon actual or fictitious antiquity. If we want the view of a lawyer who knew from experience what custom was, we can turn to Azo (d. 1230), whose works were held in high respect by our own Bracton. “A custom can be called long”, he says, “if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years.”1

The middle ages seem to show us bodies of custom of every description, developing and adapting themselves to constantly changing conditions. We can see the first beginnings of a custom and trace its rise and modification; we can even see it deliberately imported from one place to another; it is a common sight to see a group of townspeople examine the customs of more advanced communities, choose the one they like best, and adopt it en bloc as their own. Indeed nothing is more evident than that custom in the middle ages could be made and changed, bought and sold, developing rapidly because it proceeded from the people, expressed their legal thought, and regulated their civil, commercial and family life. The custom of a mediaeval community may well have been much more intimately a product of the work and thought of those who lived by it, than is a modern statute enacted by a legislature whose contact with the public at large is only occasional.

FEUDAL CUSTOM

With the progress of history, therefore, we see the constant growth of new custom, which is the natural method of making provision for new communities and the more modern needs of old ones. Just as the communal courts declared the custom of those who were subject to them, so we find that the newer feudal courts developed and declared the custom governing the feudal relationship. Feudalism was a rearrangement of society upon a military rather than a capitalistic basis, designed to meet a grave emergency created by external invasion and the fall of the central authority. This rearrangement was effected and maintained by the development of new bodies of custom governing novel situations. In short, feudalism is a very striking example of the radical changes in society which can be effected by the rapid modification of custom. This flexibility of custom enabled society in the tenth and eleventh centuries to reorganise itself with much greater ease and responsiveness to changing conditions, than if all this had to be done by drafting and adopting explicit legislation. Later still, the decline of feudalism was likewise effected by changes in custom; the growth of heritability in feudal fiefs, the strict limitation of feudal services, the development of the supremacy of the Crown, were all in effect the recognition by shifting custom that the spirit had departed from feudalism.

With the decline of feudalism came the growth of the royal authority, and this at first took the form of customary modifications in the relationship between the Crown and its vassals. By this time society was developing so rapidly that changes in custom had to be made with unusual precision; conflicts of interests sometimes resulted in rebellion or civil war, which in turn produced drastic changes in custom by a new method—legislation. Typical of such incidents are the events leading to Magna Carta, and from that date onwards it becomes steadily more clear that the growing supremacy of the Crown will bring with it national legislation, and that this national legislation will be in the end compelled to destroy custom in self-defence. Such in the broadest outline is the history and ultimate fate of custom.

During the middle ages, however, the conflict was still undecided; until the rise of the modern state and modern ideas of sovereignty, custom still had a large if diminishing place in our legal history.

CONSTITUTIONAL CUSTOM

Feudal custom includes the relationship of Crown and nobles until the moment when this body of custom separates and becomes, first, the law of the prerogative, and then later still combines with the custom of the King’s High Court of Parliament to form modern constitutional law. Indeed, those changing “conventions of the constitution”, which needed all Dicey’s ingenuity to reconcile them with nineteenth-century jurisprudence,1 are just such a body of living, growing custom as existed in the middle ages. The King’s other courts rapidly produced a body of custom—the contrast between Glanvill’s tiny treatise and Bracton’s heavy folio shows how much custom could be developed in two generations—which is the basis of the common law. Very soon there is a substantial quantity of legislation, but nevertheless that legislation always assumes that it will be construed in the light of the whole body of customary law. In striking witness to this we have the curious phenomenon of some statutes gradually being assimilated into the common law; Magna Carta very soon became in theory as well as in practice part of the common law, and so did other statutes.2 Indeed, when English common law was being adopted in America there was sometimes a question as to how far certain statutes were to be regarded as inseparable from the customary common law.

THE ATTITUDE OF THE CANONISTS

Exactly parallel to the growth of national unity in England was the development of the primacy of the papacy. The same problems were involved; a large number of scattered communities had developed masses of ecclesiastical custom, and if Christianity was to maintain itself against the disruptive forces of feudalism the papal monarchy was a political necessity. That monarchy itself grew up largely through the operation of custom, and when its dominance was practically assured, its position was defined in dogmatic form. Then came the problem of the relationship between the Holy See and numerous bodies of local ecclesiastical custom which still survived, and which under newer conditions hampered the work of the papacy. To this situation many canonists devoted careful thought, and the result of their speculations was to provide a philosophical basis in justification of papal policy.1 It was the canonists who (building on the foundation of Roman law) devised a rational basis for a general attack upon custom. As the papal monarchy became more centralised, the canonists were laying down what was in effect the modern doctrine, and from them the common lawyers were to learn some very useful rules whereby custom could be subjected to the national sovereign.

MANORIAL CUSTOM

The attack upon custom which had already begun in England before the close of the middle ages did not proceed with equal force; some types of custom for a long time were hardly affected. Beginning at the bottom we have that complicated economic unit, the manor, whose rural economy and social structure were almost entirely a matter of custom. Within the manor there proceeded a dramatic struggle between various groups of custom which has had the profoundest effects upon society. It is clear that the condition of the tenants of a manor is in fact the condition of the bulk of the population, and the changing social and legal condition of the peasant is an important part of the history of the modern working class. Originally free, or nearly so, the growth of feudal custom depressed the inhabitants of the manor to the position of serfs, and this change took place partly by the manorial courts developing and declaring local custom, and partly by the royal courts developing and declaring customary common law. The rapid rise to supremacy of the Court of Common Pleas had the practical effect that property in land was ultimately whatever the Court of Common Pleas should adjudge. Now, after a moment of hesitation, the Court of Common Pleas decided that it could not be bothered with the affairs of peasants. To say that the peasant’s property rights could not be defended in the Court of Common Pleas was almost immediately recognised as equivalent to saying that he had no property rights at all. This was the accepted theory from the beginning of the fourteenth century onwards; Westminster Hall expressed it in the form of the dogma that the freehold in a villein’s lands was in the lord.

THE RISE OF COPYHOLD

Then came the Black Death, and with it the economic revolution of the middle of the fourteenth century. This crisis emphasised tendencies which had already appeared long before the plague—tendencies which took the characteristic form of the growth of new custom. There grew up in the manors of tolerant lords the custom of allowing villeins to succeed by hereditary right to their ancestors’ holdings. They were permitted to buy and sell servile land; in some cases the lord’s manorial court would entertain litigation between villeins, using all the forms of Westminster Hall with their technical allegations of “fee and right which ought to descend” and so on. The only difference was that the villeins’ claims always concluded with the words “according to the custom of the manor”.

CHANGING CUSTOM AND SOCIAL REVOLUTION

By this means the villeins of many manors acquired all the benefits of common law ownership through the machinery of the custom of the manor. Many landlords, however, were shrewd enough to detect this tendency, and to take steps to prevent the growth of a custom. The courts of common law refused to recognise such a revolutionary custom; according to their reasoning the freehold was in the lord, and they refused to admit that the custom of the manor could have any effect upon the lord’s position in the Court of Common Pleas. Indeed, if this custom had been immediately recognised the effect would have been most startling, but in point of fact recognition came so late that public opinion was already thoroughly familiar with its implications. In this great work Coke played a prominent and honourable part,1 and a line of his decisions at the close of the sixteenth century finally established the principle that the customary interests of a villein in his lands under the custom of the manor could be recognised and defended in the Court of Common Pleas.

THE REACTION AGAINST CUSTOM

By this time the Court of Common Pleas had grown a little bit afraid of this powerful force of custom. It became necessary to impose limits and to do something to check social changes carried out solely through custom. They were content to allow at least some of the villeins to achieve property rights under the new name of copyholders, but in order to prevent a too rapid transference of property rights from lords to copyholders, they confined the operation of the new doctrine to those cases where the custom was, or seemed to be, immemorially old. This was a new device and an effective one whenever the law courts wished to limit the operation of a custom; it was easy to say that the antiquity of a custom would have to be proved right back to the time of legal memory (3rd September, 1189, so too the date of limitation of the writ of right).2 Such a distinction was completely false; nothing is more certain than that there was no copyhold anywhere in the year 1189; but the doctrine served as a means of checking any further rapid growth of customary tenures, and in its practical effect it retarded, without completely stopping, the movement. When we get to this doctrine of immemorially old custom it is obvious that we are in modern and not mediaeval times.3 The whole idea is as artificial as the date of limitation which it set, and it is clear that in the sixteenth century, when this doctrine first appears, custom had largely ceased to be a familiar notion to the common lawyers, who regarded it henceforth as a troublesome and perhaps a dangerous anomaly which must be confined as strictly as possible within harmless limits. This idea is nowhere better exemplified than in the famous Case of Tanistry4 when the common law tests of custom were used to break up the social organisation of the Irish nobility, the case becoming a leading authority upon the law of custom.

An almost equally remarkable product of customary law occurred upon the Continent among the lesser free landowners down to the early thirteenth century. As the result of the coincidence of a number of different customs and practices, there developed the famous custom of community property between husband and wife, a system which obtains in most continental countries and in some parts of America.1

THE EXTENT OF CUSTOM IN ENGLAND

Many of the counties in England had customs of their own, some of them well known (like the recently abolished gavelkind), others much more obscure.2 Then, too, in England there were numerous customs of cities and towns which throw an extraordinary light upon law and society in the middle ages. The common law was the custom of the King’s Court, and an outgrowth of feudal conditions which applied particularly to the larger landowners; for the upper classes of society its rules were no doubt appropriate, but it is only in the local custom of numerous cities, towns and villages that we can see how different the life of the ordinary people was. In these customs, for example, we find that the position of the married woman was very different from that which the common law assigned her, the complete merging of personality being obviously out of harmony with bourgeois habits. Local customs frequently keep the woman’s property free from her husband’s control, accord her liberty of contract (which was denied at common law), and even allow her to trade separately upon her own account. The extent of these local customs is hardly known. Many custumals have survived,3 but many others have not. Indeed, it was typical of customary law that there was no need for it to be written down, and there can be no doubt that many communities had notable bodies of custom without ever possessing a written custumal. By the merest chance an example of this recently came to light. In defence to an action of account in 1389, it was pleaded that by the custom of the little village of Selby in Yorkshire a husband was not liable for the commitments of his wife incurred in the course of her separate trading.1 There is no extant custumal of Selby, and apart from this case no other indication is known of Selby possessing a body of customary law. Only the accident which raised the point in the Court of Common Pleas has enabled us to learn this important fact, which is a strong warning to bear constantly in mind that the common law, even so late as 1389, did not extend to all persons and places, and that there was an incalculably large mass of customary law involving very different principles in numerous different communities of which we only know a fraction.

THE CUSTOM OF MERCHANTS

Of these local customs, those which were developed in particular places where fairs and large mercantile interests existed naturally acquired strong mercantile characteristics. In this way we come to the growth of a body of mercantile law which was commonly called the law merchant. It seems to have grown out of strictly local custom, and all through its history local variations are conspicuous. Inevitably, however, there grew up forces which made for greater uniformity, and in the end, as we have seen, what used to be the custom of numerous towns and fairs became the unified custom of a particular class, that of the merchants.

On examining the vast mass of customary law of which we still have surviving evidence, we get the impression of great activity in countless small communities, which are constantly endeavouring to regulate their life by developing approved courses of conduct which can be imposed and enforced upon the recalcitrant in the name of custom. The great variety of customary provisions, and the eagerness with which new communities compared different bodies of custom in order to choose the one best suited to their needs, seem to show that we must not neglect custom if we would find initiative, experiment and new thought in mediaeval law. An examination of our earlier statutes will show that many of them adopt into the common law principles which had been developed already in some one or another custumal, and this confirms the impression that the common lawyers themselves in the formative period of their profession were glad to look to local custom and to choose from it those principles and devices which, having been tried, had been found satisfactory, and to extend them to the nation at large by enacting them as statute law.2

CHAPTER 4

LEGISLATION

At the present day the most powerful instrument for legal change in the hands of the State is legislation. Every modern nation possesses one or more legislatures—in America, over four dozen—which are all extremely active. Immense quantities of statute law are produced every session; a great deal of it, no doubt, is concerned with problems of administration and police, but nevertheless at the present day it can no longer be denied that legislation has a large place in modern legal systems. Few topics in legal history are more interesting than the rise and progress of legislation, the development of special bodies for the purpose of making statute law, and the attitude of the law courts in applying and interpreting the results of their labours.

IS LEGISLATION A ROMAN TRADITION?

Professor Jenks has developed the interesting thesis that legislation was only known to the middle ages through Roman law. According to this view true legislation is the product of Roman ideas; if these ideas are present, then legislation must be regarded as a conscious imitation of Roman practices; if these ideas are absent then we find likewise an absence of true legislation. The early Germanic laws under this theory are not really legislative, but only official memoranda of tribal custom. When, however, the barbarians had settled down within the old Roman Empire, and had become familiar with its political ideas, we begin to find the appearance of express legislation. Indeed, Professor Jenks would go so far as to say that

One of the most striking functions of the Roman Emperor was his power to legislate, and the Carolingians likewise produced a considerable body of legislative acts called “capitularies”. These instruments are partly administrative, being substantially instructions to royal officials, but some of them are beyond doubt truly legislative, and openly profess to introduce new law. It is perfectly clear that they were an important element in the machinery of government throughout the ninth century. With the fall of the Carolingian Empire at the close of that century, the Roman imperial idea suffered an eclipse. The tenth and eleventh centuries are the periods during which central authority completely failed, and was replaced by the extremely decentralised form of government which we call feudalism.

It is a difficult question to decide how far this theory can be applied to the special facts of English history. Dr Jenks insists that the Anglo-Saxon laws are really declarations of custom, and do not become truly legislative until the reign of Egbert, who had visited the court of Charles the Great, and there learnt the imperial idea. However, if this theory is to be applied to English legal history at all, we shall have to start earlier than Egbert. The very first Anglo-Saxon law we possess, two hundred years before his day, contains matter which surely must be legislative—it is largely concerned with making provision for a completely new class of society, namely, the clergy, which previous to this date had not existed. Here, then, was a piece of radical legislation. If we are to find imperial influence in this, it is to the Church rather than to the Empire directly that it must be ascribed, and there is no doubt that the early Christian missionaries to England deliberately adopted the policy of magnifying the kingly office. In fact, whatever is ultimate origin may be, we find a fairly constant stream of legislation from the very beginning of authentic Anglo-Saxon legal history about the year 600 continuously down to the present day. Of course, at some periods this legislation was more important than in others; for quite long stretches of time we find only comparatively trivial matters, but nevertheless, when radical legislation became necessary, there were the power and the machinery to effect it.

LEGISLATION AND FEUDALISM

An alternative theory would regard legislation as an inseparable element in adjudication. Thus, those lords in France who had rights of justice, inevitably developed legislative powers as well.1 The result is worth noting, for it shows what the common law escaped. In France, every feudatory legislated for his own demesne, but as a necessary result, it followed that an overlord, and even the King, could not legislate for the demesnes of his under-tenants for they were under the jurisdiction of their immediate lord. Hence even the Crown could only legislate for the royal domains and not for the country at large. When national legislation was needed, the Crown would hold a solemn court of vassals and endeavour to persuade them to adopt what we may call, on the American pattern, a “uniform law”. If they agreed, the bargain was embodied in an oath by the vassals to legislate along particular lines. If this practice had continued, France would have had in the end a legislature of King and lords somewhat like the English, although attained by a different line of historical development. It so happened that things went otherwise; where most of the barons agreed, those in the majority would take an oath promising to compel the rest by force to legislate in accordance with the wishes of the greater number.2 Only later did the reception of Romanist maxims make the Crown sole legislator, to the exclusion of the feudatories.

EARLY LEGISLATION IN ENGLAND

In England the Crown was stronger, and although there may have been local legislation occasionally,1 and even feudal legislation,2 there was never much doubt that royal statutes were binding throughout the land.3

Needless to say, legislative methods have changed in the course of thirteen hundred years. Under the Anglo-Saxon kings there was no part of the government which could be described as a legislature. It is impossible in the present state of our knowledge to ascertain the relative influence upon legislation of the King, the clergy, the nobles and the King’s more intimate advisers. It may very well be that the Anglo-Saxon assemblies which were frequently associated with legislation were modelled upon ecclesiastical councils—indeed, it is sometimes impossible to distinguish a royal Witan from a Church council.

The Norman Conquest made little change in the general attitude toward legislation, save to enhance the position of the Crown, assisted by a small, intimate and informal Council. Legislation still continued, and William the Conqueror effected several important changes; he abolished the death penalty for certain offences, and penal slavery,4 and made radical changes in the constitution of the hundred court.5 If we find no legislation under his second son and successor William II, we soon find that his third son, Henry I, did something towards resuming the practice. In 1100 he issued a Charter of Liberties,6 and from that time forward the Charter becomes a frequent form of legislation. Large portions of this Charter, no doubt, consist of a withdrawal of certain oppressive claims by the Crown which were of doubtful legality; other parts, however, seem definitely to establish new rules in the place of old ones; various feudal dues, for example, instead of being arbitrary, were reduced to “reasonable” limits, and this was clearly a change in the law; moreover, the Charter concludes with a grant of the law as it was under Edward the Confessor, “together with those revisions which my father [William the Conqueror] made by the advice of his barons”. In short, Henry I maintains the legislative changes which William the Conqueror made in Anglo-Saxon law. He also restored capital punishment in those cases where it had been abolished.1 A recently discovered charter of the reign of Stephen (1135-1154) refers to a “statutum decretum” which established the rule that where there is no son, daughters will inherit by spindles. It is interesting to have proof that this rule is older than the great age of reform under Henry II, but it is even more remarkable to find it expressly attributed to legislation.2

It is when we come to the reign of Henry II that we find the first great outburst of legislation. The forms which it took were various. Instead of the ancient and solemn charter we find more frequently the assize, but in most cases the text is no longer extant and as a rule we have to depend upon chroniclers for our information. Thus we have the Assize of Clarendon in 1166 which was made with the assent of all the prelates and barons of England, and is in form an expression of the King’s will. Several assizes during his reign established new forms of trial by inquisition or jury, and established new forms of action in the law of real property. At the same time what professed to be ancient custom was ascertained and declared by the remarkable procedure of an inquisition consisting of all the “prelates, nobles and ancients of the realm” in the Constitutions of Clarendon (1164).3 Under his sons Richard I and John we have only the Great Charter of 1215, which, although largely declaratory of ancient custom, was still in other respects legislative, in several cases substituting new rules for old. During the next ten years the Charter was three times revised and much of the first Charter was abrogated—and it must be remembered that the repeal of existing law is just as much legislation as the introduction of new law.

During the long reign of Henry III legislation becomes steadily more frequent. A good deal of it is already known, but it is certain that there is still more awaiting discovery on the voluminous rolls in the Public Record Office.4 The charter still continues to be a form for the most solemn type of legislation, but others also occur. Brief and informal instructions to Justices in Eyre were a particularly convenient method for introducing new rules and practices into the law. In 1236 we find the Provisions of Merton, which all the old collections of statutes agree in treating as the earliest English statute.5 There is, of course, no real basis for this tradition; there are other documents upon the public records of an earlier date which can be regarded as legislation with equal justice. The Provisions (or Statute) of Merton long remained important, particularly in matters of commons, for which it was invoked as late as the eighteenth century. In the middle of Henry III’s reign a revolutionary body of barons established a special machinery for the purpose of legislation, and the Provisions of Westminster (1259) were the result; and when finally the revolution came to an end, most of the Provisions of Westminster were re-enacted in a more regular form in the great Statute of Marlborough (1267).1 Indeed the Statute of Marlborough really belongs to the great group of legislative acts which took place in the next reign, for there are only eight years between it and Edward I’s Statute of Westminster I in 1275.

EARLY LEGISLATIVE FORMS

This brings us to the greatest outburst of legislation in England during the middle ages; it was only equalled in extent and importance by that of the first half of the nineteenth century.2 It will therefore be well at this point to examine very briefly the available forms and methods of legislation existing in the reign of Edward I. The forms, to begin with, were extremely varied. We have already mentioned the form of the charter, and it must be remembered that the charter is really a conveyance, and that the various charters of liberty which we have mentioned are drawn in identically the same form as a conveyance of real property. The Great Charter of 1215, for example, announces that “we have granted and by this present charter confirmed for us and our heirs forever” the following liberties, “to have and to hold to all the freemen of the realm and their heirs, of us and our heirs”—which is exactly the form which would be used in a grant of lands. The Provisions of Merton which we have already mentioned similarly use the word “grant”, although here we find that the grant is embodied in a form which becomes more frequent henceforward—the provision. They begin thus:

Here we clearly see a form which is half-way between the charter which technically moved from the King alone, and the later statute which was made in Parliament. The Statute of Marlborough (1267) is in a rather peculiar form, and this may perhaps be attributed to the presence of several distinguished foreigners. It bears the title “Provisions made at Marlborough in the presence of King Henry, and Richard, King of the Romans, and of Edward, eldest son of the said King Henry, and of the Lord Ottobon, then papal legate in England”, and begins with a short preamble.

All these documents were in Latin; the First Statute of Westminster (1275) is somewhat unusual in being in French. It also adopts a French word for legislative acts, établissement, which is reminiscent of the legislative acts of Louis IX bearing the same name. The Statute of Gloucester three years later (1278) is also in French and claims to have been “established and ordained”, the King himself “providing” for the amendment of his realm with the concurrence of the most discreet persons in the Kingdom, both great and small. The Statute of Mortmain (1279), on the other hand, which is in every way as important as the preceding, is simply in the form of an administrative instruction addressed to the Justices of the Bench. The Statutes of Merchants1 (1283 and 1285) are in French and recount that “the King by himself and his Council” had ordained and established the matters following; the Statute of Westminster II (1285), however, is in Latin and sets the form for subsequent statutes, although for a long time deviations are not uncommon. We now find that “the Lord King in his Parliament at Westminster after Easter on the thirteenth year of his reign caused to be recited the many oppressions and defects of the laws, with a view to supplementing the statutes made at Gloucester, and published these statutes following”. Here we get a form which is clearly and consciously legislative. The Statute of Winchester, however, in the same year, professes to be nothing more than the command of the King alone, no Parliament and not even a Council being mentioned.

THE COUNCIL’S SHARE IN LEGISLATION

So far it is clear that these legislative acts ran in the name of the King and very probably were initiated by him or by his most intimate councillors; there is as yet no necessary connection between legislation and Parliament. In the reign of Edward I we find some extremely important legislation which seems to have emanated from the King in Council alone, or at most from a Council in Parliament, for we find no mention of the Commons; so, too, with the Statute of Westminster II and many others. On the other hand, some of his statutes profess to have been made “by the advice of the barons, earls, magnates, great men and other nobles, and of the commons of the realm in Parliament” (Statute of Carlisle, 1307).2 There is, however, no legal difference whatever in the effect or authority of statutes produced in these different ways. As far as we can see, a statute in the reign of Edward I simply means something established by royal authority; whether it is established by the King in Council, or in a Parliament of nobles, or in a Parliament of nobles and commons as well, is completely immaterial. It is equally immaterial what form the statute takes, whether it be a charter, or a statute enrolled and proclaimed, or merely an administrative expression of the royal will notified to the judicial authorities by means of a letter close (which at this period was a species of interdepartmental correspondence). In short, while we are in the reign of Edward I we feel the typical mediaeval atmosphere, which was, above all, intensely practical. The great concern of the government was to govern, and if in the course of its duties legislation became necessary, then it was effected simply and quickly without any complications or formalities. Even after parliamentary legislation had begun to appear, we still find that the Council exercised a preponderant influence and that among the councillors were frequently to be found the judges, for it is only natural in so practical an age that the Council should call upon the judges to draft legislation, and such in fact was the case.

These variations, both in form and method—

As Professor Winfield remarks:

STATUTES AND ORDINANCES

At various times we find a distinction drawn between statutes and ordinances. Down to the middle of the fourteenth century the words are used interchangeably, and it is only in the latter part of the century that some sort of distinction begins to appear. It seems to take the line of discriminating between those acts which received the consent of the King, the Lords and the Commons, and those in which one of these consents was absent.1 As we have seen, in the fourteenth century legislation was none the worse for being extra-parliamentary; as a late example it may be observed that the Ordinance of Labourers (1349) was constantly applied in every respect as if it had been a parliamentary statute, although it had no parliamentary authority until it was included in a general confirmation of all labour legislation nearly thirty years later.2 Indeed it may be that this tardy grant of parliamentary sanction is an early case of doubts first appearing as to the validity of non-parliamentary legislation. A much later example of the confirmation by Parliament of legislation by Crown alone, has already been mentioned in connection with the court of augmentations.3 For the rest, ordinances have played a very small part in English public law, if we are to except the thirteenth- and early fourteenth-century examples, which, moreover, as we have seen, were not distinguished from statutes by contemporaries.

PARLIAMENTARY LEGISLATION

As we pass through the fourteenth century, parliamentary legislation becomes more and more general. Not only does the King use Parliaments for the purpose of giving authority to his own decrees, the Parliament merely ratifying decisions which have really been reached by the Council, but we also find that Parliament will request the Crown to legislate upon some particular matter. At first we find general complaints put into the form of a petition, either by particular members, or outsiders and local bodies. Next, come petitions by the whole Commons. Such petitions will state grievances and pray for a remedy. When the Parliament is over, the Council will consider these requests at its leisure, and if it thinks legislation is necessary it will prepare it according to its discretion and publish it as a statute with parliamentary authority. As the Commons grow more powerful politically they express increasing dissatisfaction at the working of this method. Sometimes the government failed to act at all upon a petition; at other times we find the Commons complaining that although they had petitioned for one thing, the Council had legislated along different lines, of which they did not approve. Henry V promised that “from henceforth nothing be enacted to the petitions of his Commons that be contrary to their asking whereby they should be bound without their assent”, but even after a statute had been passed, the Crown sometimes assumed wide powers of altering or suspending it.4

In the fifteenth century, however, we find the beginnings of a new system which had in fact first been used for government business.1 This consisted of presenting a bill which contained the exact form of words which it was proposed to enact. Even at this late date, however, there were occasional doubts whether the consent of the Commons was always necessary. When we get to this stage we can rightly regard Parliament as being a legislature. In the fifteenth century it also becomes the regular practice for statutes to be written in English, instead of in French as in the fourteenth century, or Latin in the thirteenth.

TUDOR LEGISLATION

As we enter the Tudor period we begin to see clear traces of modern parliamentary procedure, the system of three readings and so on. In mere bulk, the change is striking, for the thirty-eight years of Henry VIII’s reign (although half of them passed without a parliamentary session) produced a volume of statutes equal to the combined output of the previous two and a half centuries. In part, at least, this may be attributed to the verbosity of Henry himself, or his draftsmen. Another cause may be found in the newer view of what a statute should be; the brief indications in an easy—almost conversational—style which sufficed under Edward I had to be accompanied by a wide discretion in their interpretation by the courts. The newer view restricted the courts much more narrowly to the text of the statute, and so that text had to be more artificially drawn, and if all the possible repercussions of the new statute were to be foreseen and provided for, the text necessarily became long, full of enumerations, exceptions, provisions, saving clauses and the like. The Tudor period, moreover, is the great age of the preamble. We may well see in this an involuntary tribute to the growing importance of public opinion. Statutes were not only proclaimed, as in the middle ages, but were now printed and published through the press. Henry VIII was quick to see the advantage of prefixing to his most drastic acts a vigorous polemical defence of their policy, which has been aptly compared to “a leading article in a government newspaper” as the nearest modern equivalent.

Parliament also began to act in a more independent spirit. While it is doubtless true that Henry contrived to secure parliaments which were in general sympathy with his policies, nevertheless even they would balk at some of his proposals. Several government bills on the vital subject of uses, for example, were thrown out before the famous statute was finally passed.

If much of the more notorious legislation of the Tudors was purely political and social, there was still a great deal which made considerable changes (and generally improvements) in the law. Uses, wills, charities, conveyancing, bankruptcy, commercial law and criminal law are all conspicuous in Tudor legislation.

Not only did legislation become more detailed, but it also flowed at a more rapid pace. Parliament having once taken up a subject was apt to return to it again and again, piling act upon act, sometimes with confusing results. From time to time it therefore became necessary to clarify a complicated mass of related statutes, and as early as 1563 we get an example of the typically modern device, the consolidating act, which “digested and reduced into one sole law and statute” the substance of many statutes of artificers which it repealed.1 Another modern feature which appears under Elizabeth is the grant of statutory powers to all and sundry for the performance of things which so far had to be done by special powers obtained ad hoc from the Crown. Thus in 1597 all persons were allowed to erect and even to incorporate various charitable foundations by the simple machinery of a deed enrolled in chancery.2 Nearly a century before this, we find an early example of delegated legislation3 under Henry VII; the practice received more conspicuous employment in the next reign, when the statute of proclamations4 and the act for the succession were striking examples.5

It is in this period, moreover, that we find the regulation of commercial and professional life transferred from the old gild and ecclesiastical authorities to the Crown. The result is a flood of “social” legislation far in excess of any to be found in the middle ages, and this necessitated a theory to support it. Coke, with his unfailing patter of Latin apophthegms, enshrined the new view of the field of legislation in words with the required antique sound. “The king”, said he,6 “is a mixed person, the physician of the realm, the father of the country, the husband of the kingdom to which he is wedded with a ring at his coronation”. In speaking of Henry VIII’s foundation of the Royal College of Physicians, which replaced the Church in supervising the medical profession, Walmesley, J., linked up the new paternalism with the old feudal wardship:7

THE CITATION OF STATUTES

One of the methods of citation of statutes was exactly the same as that used by the civil and canon lawyers, and consisted of calling each statute by the first words. In a few cases this practice has survived; we still speak of the Statutes De Donis and Quia Emptores, and in the fourteenth century there were many more. As parliaments became more frequent, statutes were cited according to the place where the Parliament sat; we therefore have the Statutes of Gloucester, York, Northampton, etc., and numerous Statutes of Westminster. With the growth of statute law it became necessary to have a more precise system, and by the close of the fourteenth century statutes are cited by date (that is, by the regnal year). The Statute of Westminster II, therefore, may also be cited as Statute 13 Edward I. Gradually, although not always, the legislation of one Parliament was published all together in one document, which will therefore contain a number of unrelated matters. For convenience such a long document is divided into chapters; the numbering of the chapters is common in fourteenth-century manuscripts although we do not find it on the rolls; and so citations will take the form of the regnal year followed by the number of the chapter. Occasionally we find more than one of these long statutes in a single year, and the modern printers have made a practice of numbering these as separate statutes. Unfortunately there was no uniformity among the many different editions of the older statutes, and indeed no official reprints at all, until the publication of the Statutes of the Realm between 1810 and 1825 in nine immense folio volumes. At the present day, citations of statutes earlier than 1713 (at which date the Statutes of the Realm end) are usually made according to the regnal years and numberings in this edition, which moreover has received a certain amount of parliamentary sanction.1 Although the citation of a statute consists of a date, that date may need adjustment if the historical date of the statute is to be ascertained,2 and the Statutes of the Realm lays traps for the unwary by retaining the old practice of beginning the year of grace on 25 March instead of 1 January. In the eighteenth century the citation of statutes became more complicated, for Parliaments lasted longer and their sessions overlapped the regnal years. If the whole of a session falls within one year there is no difficulty, but if it overlaps, all of its acts are described as of both years.

THE AUTHENTICITY OF STATUTES

So much then for the forms and methods of legislation. We must now consider the authority and the interpretation of these documents. As for their authority we find very little question. Indeed, there seems a curious tendency to extend statutory authority to a variety of documents, some of them of very questionable origin. An important case as recorded upon the Parliament rolls in the course of time will acquire the reputation and name of the Statute of Waste.2 A few useful extracts from Bracton will also be referred to during the middle ages as statutes.3 The term “statute”, therefore, is a decidedly inclusive one, and it is not often that we find a reputed statute questioned. Occasionally we find suspicions expressed because a particular document has not been sealed—the meaning of which is far from clear.4 Sometimes a very cautious litigant who is relying upon a recent statute will go to the trouble of having an official copy authenticated under the Great Seal, and of bringing it into court. On such occasions it would seem that the court took the precaution of enrolling the statute in question as part of the pleadings. Indeed, it is extremely curious that there was more difficulty in pleading a very recent statute than an old one. The courts seem to have felt a certain reluctance when faced with the problem of applying a statute for the first time. Moreover, it would have been quite difficult in the fourteenth century to decide whether a particular text was a statute, and, if so, what exactly its words were. From the Year Books it would seem that the bench did not always have a copy of the statutes at hand. On those occasions when the bench did examine a copy of the statutes, the Year Books are careful to report the precise words as they were read; more than that, it is not unusual to find statutes even then seriously misquoted. In at least one case everybody concerned seems to have been unaware that a certain statute had been repealed. It is therefore not surprising that there have grown up certain legends as to the operation and effect of particular statutes which have no historical basis.5

THE COMMENCEMENT OF STATUTES

Late in the reign of Edward III there is a case1 which shows that several characteristics of statutes, as they remained for centuries, were already being settled. The Crown was prosecuting the Bishop of Chichester under one of the statutes of premunire, and the defence raised some interesting points. The statute was very recent, and it was objected that it had not been proclaimed in the counties; to this Thorpe, C.J., replied: “although proclamation was not made in the county, everyone is now bound to know what is done in Parliament, for as soon as Parliament has concluded a matter, the law holds that every person has knowledge of it, for the Parliament represents the body of all the realm, and so proclamation is unnecessary for the statute has already become effective”. A further objection seems to suggest that the Commons had not assented to the statute in question; to this Thorpe, C.J., replied, rather mysteriously, “when all the lords are assembled they can make an ordinance, and it shall be held for a statute”. Whatever the last cryptic sentence may mean (and it may relate to peculiar circumstances attaching to that statute),2 it is clear that statutes were already regarded as operative as soon as made, and not from the date of publication. Later ages added a refinement by regarding a statute as operative from the first day of the session in which it was made—which in effect might antedate it by several weeks or even months.3 In doing this they were probably imitating the analogous rules of the law courts, whose judgments dated from the first day of term. The Statute of Frauds4 abolished the rule as to judgments, but the rule as to statutes was not reformed until 1793 when it was enacted that they should take effect from the date of the royal assent unless otherwise provided.5

THE PROBLEM OF INTERPRETATION

Until late in the middle ages, lawyers tried to avoid facing the problem of interpretation. Indeed, even the word connoted in their minds fraud or evasion. Nor was the division of labour into law-making and law-interpreting generally accepted in fourteenth-century thought; the canonists, for example, had a maxim that interpretation properly belonged to the power that ordained, which alone could authoritatively interpret its own acts.1 The civilians were of the same mind: ejus est interpretari cujus est condere.2 There was a possibility that the common law might accept this principle, which the best legal opinion seemed to approve. Early in the reign of Henry III dispute arose on the interpretation of the great charter between certain sheriffs and the inhabitants of their shires; the King therefore called the disputants before him to clear the matter up.3 The same procedure was followed eight years later, when the greater part of the bishops, earls and barons, by their common counsel, placed an interpretation upon c. 35 of the great charter, which the King then published by letters close.4 Nor was this merely a royalist theory, for a quarter of a century later, when Henry III was at the mercy of his barons, they wrote in his name a warning to the Bishop of Durham in these terms—

Edward I frequently put the principle into practice; the King and his justices published an extra-judicial “exposition” of the Statute of Gloucester6 in 1278, and in 1281 the King in Council made a “correction” in the same statute.7

The common law courts themselves acknowledged the principle of appealing to the legislator when faced with difficulties of interpretation. In 1303 Hengham, C. J., cut short a discussion of the statutory procedure of elegit by saying: “this statute was put before the king and his council, who accorded that when the debtor came with the debt ready, his lands should be restored to him; so will you take your money?”8 Even as late as 1366 Thorpe, C.J., recalled that there had been a discussion before him on the interpretation of a statute, “and Sir Hugh Green, C.J., K.B., and I went together to the council where there were a good two dozen bishops and earls, and asked those who made the statute what it meant”. The archbishop told them what the statute meant, after remarking (with some justification) that the judges’ question was rather a silly one.9

Practice, however, was setting the other way, and after this date interpretation was relinquished to the courts. The inherent reasonableness of the principle that the legislator was the best interpreter was still, however, admitted by those who gave thought to the problem. For example, a tract attributed to Lord Ellesmere1 maintains that it would be more reasonable for statutes to be interpreted by Parliament which made them than by the courts. More recently, Lord Nottingham in an early case on the Statute of Frauds reports himself thus:2

Such would appear to be the attitude of some continental systems at the present day,3 but the common law courts have completely reversed their policy since the days of Nottingham. No greater contrast to his words just quoted could be imagined than this statement of Lord Halsbury:4

With the growth of international legislation this divergence of view has already created difficulty.5

THE JUDICIAL INTERPRETATION OF STATUTES

If we had completely adopted the principle that the lawgiver was the only competent interpreter, we should have had to erect a chamber or council specially devoted to the work as legislation grew in bulk and complexity. This in fact is the solution which the canonists reached in the end,6 and the tendency which we have already noticed for the enforcement of statute law to be entrusted to special bodies7 is perhaps a symptom of the same trend in the common law.

The principal reason, however, for the triumph of the present system in the common law may be sought in the history of Parliament. While legislation was the work of a very small group of judges and councillors in close contact with the King, recourse to the same small group was easy when an interpretation was desired. The rise of Parliament and its increasing participation in the task of law-making created a very different situation. We have already noted the proposition that things settled by Parliament cannot be altered save by Parliament. Now Parliament served well as a legislature and as a political assembly, but its sessions were too irregular and its activities too much engaged in other directions to allow it to become a permanent organ for the interpretation of statutes. Declaratory acts represent the best that Parliament could be expected to do under such circumstances. In the meantime, there was the important fact that the legislature and the judiciary did actually have a common membership in the thirteenth century, and so nothing was more natural than to allow the judges considerable latitude in the reign of Edward I and even of his son, for they were intimately connected with the group which in fact drew up the statutes.

EARLY FREEDOM OF INTERPRETATION

It must also be remembered that the earlier mediaeval statute had very little in common with modern legislation. It was possible to handle these enactments with an easy unconcern as to their authenticity and precise content, and obviously there was no trace of the modern notion that every letter of the statute may be significant. Nor did the judges have difficulty in deciding what the real intention of an act was. The famous Chief Justice Hengham, for example, settled a difficult question in these words, “We agreed in Parliament that the wife if not named in the writ should not be received”,1 and when counsel suggested an interpretation of another statute, Hengham again had an authoritative answer. “Do not gloss the statute,” he said, “for we know better than you; we made it.”2 In short, the court was well aware of the intention of a statute because the judges had had the biggest share in making it, and consequently there was little difficulty; the law-maker was simply explaining his own policies. A little later we find the next stage. The great Hengham had gone, but his successors remembered his words. When counsel suggested a particular construction of a statute, Sharshulle, J., replied that when he was at the bar he had used the same argument, and Herle, J., had informed him that Hengham, who had made the statute, read it another way.3 Again, in a remarkable case involving the Statute De Donis, Chief Justice Bereford used these words:

In short there is a tradition among the judges as to the intention of the principal statutes.1 Finally, as we approach the middle of the fourteenth century, the judges have separated from the Council to such an extent that they treat legislation as the product of an alien body, of which they know nothing save from the words of the statute itself, and from that wording alone can they infer its intention—and with the rise of this idea we reach the modern point of view.

CHARACTERISTICS OF FREE INTERPRETATION

This impression is confirmed when we examine the way in which statutes were interpreted in the fourteenth century. Sometimes their wording is strictly applied; sometimes it is stretched very considerably; sometimes the court finds it necessary to restrict the operation of a statute which was too widely drawn; on other occasions the court simply refuses to obey the statute at all. But in this connection two points must be emphasised.

THE LIMITATION OF JUDICIAL DISCRETION

In the middle of the fourteenth century this free and easy attitude begins to disappear. We are beginning to find statements in the Year Books that statutes ought to be interpreted strictly, while in other matters, too, the bench is less confident in using its ancient powers of discretion. By 1340 or thereabout the Court of Common Pleas had developed an elaborate procedure which required considerable technical skill to work. More than that, the intimacy between the Council and the judges which had been such a feature of Edward I’s reign had almost ceased. As a result the judges no longer felt themselves in the position of councillors whose nearness to the King enabled them to exercise the wise royal discretion which, as we have seen, was the privilege of the King’s closest advisers. Instead, the Court of Common Pleas regards itself as a government department whose function is to carry out its duties along prescribed lines. At about this time, therefore, we find such statements as that of Hilary, J., that “we will not and cannot change ancient usages”,1 and “statutes are to be interpreted strictly”,2 while at the same date we see the earliest distinctions drawn between strict law and equity.3 Then, too, it is highly significant that the Chancery begins to appear, in the early years of Richard II, as a court exercising the Council’s discretion.4 Towards the middle of the fourteenth century, therefore, the judges begin to interpret statutes strictly. No longer are they to be regarded as merely suggestions of policy within whose broad limits the court can exercise a wide discretion. Instead they are regarded as texts5 which are to be applied exactly as they stand, and so we find the beginnings of a radical separation into two functions: the first legislates and establishes a text, and the second adjudicates and interprets the text. This separation was momentous for English history, for more than anything else it promoted the isolation of the law courts and the judges, enabling them to develop an independent position and to act as checks upon the executive and as critics of the legislature. This became all the more significant since the legislature inevitably became a political body controlling the executive; the courts now stood outside of both. The extent to which the courts were conscious of this special position is clear from their endeavours to prevent any tribunal except the superior common law courts from exercising the function of interpreting statutes. Ecclesiastical courts were to be resolutely barred, and the admiralty was attacked; even Chancery was expected to send to a common law court when the high mystery of interpretation had to be performed.6

A TECHNIQUE OF INTERPRETATION

As we pass through the fifteenth century to the sixteenth and the age of Coke, we find the courts applying themselves with great diligence to the task of interpreting statutes, which to this day is one of the most difficult functions which a judge has to perform. Shorn of their powers of openly exercising discretion, the common law judges took refuge in logic. Attempts were made to devise rules whereby the grammatical structure of a sentence, combined with a general consideration of the nature of the act, could be used as a guide to the interpretation of the text in question. Some statutes confirmed or amended previous law; others removed abuses; some commanded things to be done, while others prohibited certain actions; some statutes conferred benefits and others were penal. Combined with these general considerations a statute might be drawn in affirmative or negative terms, and out of all this the courts elaborated a system of great complexity.1

THE EQUITY OF THE STATUTE

As a result of this development, there was a multiplicity of rules available for the interpretation of any particular statute. So great was their variety, and so diverse were the rules, that almost any conclusion might be reached, simply by selecting the appropriate rule. The real problem therefore receded farther back than ever, and the power of the courts to construe or misconstrue legislation was unimpaired, and indeed increased.

This became obvious by the reign of Elizabeth, and many lawyers, notably Plowden, gloried in the liberty which the courts enjoyed in playing fast and loose with statutes. “The judges who were our predecessors have sometimes expounded the words quite contrary to the text, and sometimes have taken things by equity contrary to the text in order to make them agree with reason and equity”,2 said Bromley, C.J., in 1554. Rules of construction which produced such striking results were clearly inadequate as an explanation of this situation, and so, when a general theoretical justification was needed, lawyers turned to the convenient word “equity”.

The “equity” of the chancellor and the “equity” of a statute have nothing in common; their nature is different, and their origins are different. The equity of the chancellor is a native growth (although, of course, some of its doctrines may have felt foreign influences); the equity of the statute, however, seems to be a continental notion imported to explain the situation which had grown up in England. Blackstone was looking in the right quarter when he sought a definition of equity in Grotius’ remark that equity was “the correction of that wherein the law (by reason of its universality) is deficient”.3 When the courts therefore spoke of the equity of a statute they meant only that adjustment of detail which is necessary when applying a general rule to a specific case. Obviously it might sometimes amount to subordinate legislation by the courts, and such work had to be done by the courts if it was not done by the legislature or its deputy.

INADMISSIBILITY OF EXTERNAL EVIDENCE

At some time in the middle of the eighteenth century our courts came to the curious conclusion that a statute can only be construed in the light of strictly professional learning. It was permissible to consider what the law was before the statute, what “mischief” the statute was meant to remedy, and what the statute actually said; it was not permissible to refer to the debates in Parliament for light on what the statute meant, nor to the changes which were made in the original bill before it became an act.

The exclusion of parliamentary debates could have been justified, one would have thought, on the ground that there was no official reporting of those debates, and that the reports which did circulate were highly imaginative (as Dr Johnson, himself a reporter, confessed) and actually unlawful, for the House of Commons regarded them as breaches of privilege;1 but this reason for the rule does not seem to have been put forward. The more formal history of amendments, changes in title, and the like, could be traced in the journals of the House, however, and those journals were accessible; but they too were inadmissible.2 The rule appears first, it seems, in the long judgment of Willes, J., on the interpretation of the Copyright Act of 1709:

No authority is cited for this proposition, which rests solely on the reason which follows. As a statement of fact it seems questionable, for there was a great deal of discussion and agitation accompanying the act, and the Houses must have been aware of the views expressed. More interesting is the tacit denial that there is such a thing as the “intention of the legislature” on the ground that the King, Lords and Commons are independent of one another and so cannot have an intention. The rule was not strengthened by the fact that its author immediately abandoned it, and discussed at some length the change in the bill’s title during its passage in the House of Commons.4

The most remarkable extension of the principle was that made by Chief Baron Pollock (again giving no reason) when he refused to admit the report of the real property commissioners as elucidating the legislation based upon it.1 Here we have another aspect of the common law rules of statutory interpretation which is at variance with the practice of other systems, which regard travaux préparatoires as particularly valuable aids to interpretation. The principle has made interpretation a difficult and uncertain operation in our own system, and “may have very unfortunate repercussions” in the growing field of international co-operation in legal matters.2 The interpretation of the codes in India raises the question in a very acute form and has led an eminent authority on that system to urge that—

and to make the attractive speculation that the English rule has some connection with the Whigs’ mysticism of Parliament.

STATUTES AND FUNDAMENTAL LAW

One more question remains for consideration. From time to time the theory has been propounded that a statute might actually be invalid because it contravened some fundamental principle or law. It has indeed been suggested that this was, in fact, mediaeval theory and practice.4 This position, however, becomes difficult to maintain after a detailed examination of the authorities. Of course, there is no doubt that the mediaeval mind would never think of postulating the absolute sovereignty of Parliament or State. The whole scheme of things in the middle ages was based upon the assumption that municipal law derived its force from divine law; but we do not find in mediaeval English cases any decisions which clearly hold that a statute is void because it contravenes some fundamental principle. On the contrary, the Year Books constantly assert in express terms that statutes were making new law and abrogating old law, and their consciousness of the fact of radical legislation is therefore apparent. A similar claim has been made in favour of Magna Carta, but here again it is clear that Magna Carta itself has been amended and in part repealed, even during the middle ages. A practical limitation upon the legislature was of course the competing jurisdiction of the Church, and it was universally admitted during the middle ages that an act of Parliament could not operate within the sphere of the Church—a restriction in every way analogous to the inability of Parliament to legislate for a foreign country, for Church and State were two independent sovereign powers, each supreme within its own sphere, in just the same way as two nations exercise sovereignty within their respective frontiers.

It is in the early seventeenth century that the idea of a fundamental law begins to appear for the first time as a practical principle in the law courts under the influence of Coke. As we have already remarked,1 he hoped to subject both Crown and Parliament to a paramount common law, and for a time we find some decisions2 which accept this theory. In the eighteenth century, however, the principle was slowly abandoned—not so much because the mediaeval authority for it adduced by Coke is unconvincing as because subsequent events had proved that there were no legal limitations upon the powers of Parliament. The establishment of the Reformation settlement and of new forms of religion, changes in the succession to the Crown, and extremely radical legislation (much of it in the reign of Henry VIII), finally convinced lawyers, in their own picturesque phrase, that Parliament could do anything except make a man a woman.3 The last great judge to accept the principle whole-heartedly was Holt, who regarded it as part of a judge’s daily work to “construe and expound acts of Parliament, and adjudge them to be void”.4 If the theory disappeared in England5 it bore fruit elsewhere, and the close attention with which Coke’s writings were read in America had something to do with preparing the way for the system of judicial review as it exists in that country.

THE NON-OBSERVANCE OF STATUTES

On the continent there was some speculation during the middle ages as to whether a law could become inoperative through long-continued desuetude. In England, however, the idea of prescription and the acquisition or loss of rights merely by the lapse of a particular length of time found little favour. Moreover, statutes were definitely pronouncements of the Crown, and the royal prerogative included the maxim that “time does not run against the King”. There was consequently no room for any theory that statutes might become obsolete.1

We did have a theory, however, which was much more curious, and which permitted a great deal of discretion to the judiciary in the enforcement of statutes. According to this view, a court was not bound to apply a statute if it could be shown that the statute had never been enforced. If this is strictly construed as a legal principle, it is difficult to escape the conclusion that the judiciary had a veto upon acts of Parliament. It seems likely that by this means the courts regained with one hand the power they lost with the other in abandoning the rule in Bonham’s Case. Nor must it be supposed that we are dealing with an isolated vagary of judicial speculation. On the contrary, there is a long line of examples of its use extending over a period of more than five centuries, although there was certainly no attempt made to explore the theoretical implications or the principle.

As early as 1287 we find the first example, in a case in the county court of Chester.2 The demandant in this case brought a writ founded on the Statute of Gloucester (1278), but the tenant pleaded that no such writ had ever before issued from the Chancery. The demandant then put himself on the statute: “the lord King in his statutes issued at Gloucester established that an action by a writ of entry was available for the heir of the woman in the case proposed”. To this the tenant rejoined “that although the statute is as the tenant has alleged, nevertheless no such writ of entry has so far issued out of the chancery, and so he prays judgment”. The court agreed, and quashed the writ.

In 1345 when a defendant pleaded a statute, Thorpe, J., observed that “some people hold that statute to be of no value as against the King, for it was never put into operation”. Scot, C.J., agreed and told the defendant to say something else.3 The point was raised again in 1409 in a case on the Statute of Provisors of 1351, but seems not to have been argued.4 It is almost certainly the existence of this rule which prompted litigants who wished to rely on a very recent statute to get a special writ from the Crown directed to the judges, which ordered them to apply the statute, the text of which was annexed. Such a writ, and the text of the statute, would be embodied in the pleadings of the case on the roll.1 The notion reappears late in the fifteenth century in the honoured pages of Littleton and concerns no less a statute than Magna Carta itself, and the Statute of Merton, c. 6, which re-enacted it. “It seems to some,” says Littleton, “that no action can be brought upon this statute, for it has never been seen or heard that any action has been brought.” Coke had obvious difficulty in glossing this passage:

If Littleton’s words seem to imply that he personally doubts the rule, Coke’s gloss clearly shows how difficult it was to defend it. In 1712 an act which had been passed only seven years before was set aside on the grounds of continuous non-user.3 Nearly a century after Coke the principle was swept aside by Lord Holt, who declared in general terms that if statute gives a right, the common law will give a remedy.4 Another liberal judge, Pratt, C.J., when the old principle was urged upon him,5 declared that he hoped he would never hear such an objection again, after Ashby v. White.

That ought to have been the end of the matter, but even emphatic declarations by two great chief justices were unavailing, and we still find statutes being nullified on the ground that they had never been enforced. A statute of 1702 had been flatly disobeyed ever since it was enacted, and so Kenyon, C.J., dared not upset the settled law in 1795.6 A few years earlier a statute of James I met the same fate at his hands;7 this time Buller and Grose, JJ., concurred with him in explaining that this did not mean that a statute could be repealed by non-user! It is clear that the courts adopted this principle to frustrate legislation which they considered undesirable. It is particularly interesting to see Park, J., in another case taking refuge in the rule in order to nullify a statute which enabled a party to be examined on oath. This was “repugnant to common right” within the rule in Bonham’s Case, which he quoted at length. Coke’s doctrine of fundamental common law was too heroic by now (the date was 1823), so he based his decision on a line of cases which had ignored the act.8

INTERPRETATION, PAST AND PRESENT

These cases must not be regarded as curiosities, and in studying them we have not left the highway of history to explore a mere by-path. Legislation is such an important factor in legal development that its rise and progress and the development of the attitude of the courts towards it, must receive careful attention in any discussion of the common law system. There is, moreover, the additional interest provided by the fact that the common law has developed a different theory and a different technique of handling statutes from that prevailing in other systems. A glance at the long lines of statutes extending through seven centuries and numerous volumes is apt to obscure the differences between the present attitude and that of other periods. The interpretation of statutes has passed through several stages, and it is not without interest to compare its history with that of the interpretation of deeds. Written deeds, like written statutes, were not essential in our earlier history. The King could legislate, and the subject could enfeoff, without parchment, ink or wax. Even when a written text was drawn up, it was merely evidence, and by no means the best evidence, of what had been done. We therefore find that the wording of a statute is not at first taken very seriously. Copies used by the profession were only approximately accurate; even government departments and the courts were no better off; the recording of statutes in the national archives was by no means regular.

Interpretation in this early period could not be precise. There was no sacrosanct text, but only a traditional one whose meaning was restricted to a general policy, details being left to be filled in as required by the legislator, or by the council, or the courts. So too with deeds. It was possible to say that the actual transaction took place at the livery of seisin—an oral proceeding—and if the deed contradicted the words used in the livery, then the livery prevailed.

As government and law develop, they become mechanised. Print and paper form a vast machine for the government of the nation. In the search for precision, oral livery of seisin, and oral or informal legislation, have to be abandoned, and deeds and statutes are treated with more respect. It is important to realise how long this process took in the case of statutes. The courts professed at times to have a great respect for the letter of the statutes and invented a maze of rules for their construction on grammatical lines. But they did not surrender their will absolutely to the legislator. There were limits, they asserted, sometimes defiantly, but later in veiled language. Until little more than a hundred years ago the courts were able, overtly or covertly, to exercise considerable discretion in dealing with statutes, and it is only in the last two or three generations that they have accepted the theory of their absolute submission to the word and the letter of the legislature. It may be doubted, however, whether the acceptance of the principle of literal interpretation brings us nearer to the enforcement of the intention of the legislature. The courts are excluded from using evidence which any historian or scientific investigator would regard as highly valuable, especially in the modern age when statutes introduce changes of social policy, and not merely of technical procedure.1

CHAPTER 5

THE PRINCIPLE OF PRECEDENT

The common law in its ultimate origin was merely the custom of the King’s courts; the regular routine which they developed in the administration of justice became settled and known, and therefore served as the basis upon which people could forecast with some certainty the future decisions of the courts. The growth of such a custom depends to some extent upon the habit of following precedents, although it is more than likely that this development took place quite unconsciously. From earliest times, therefore, the royal courts have always had some sort of regard for previous decisions, although at first, no doubt, this was based upon a desire to save trouble. There was no need to consider a question de novo if it had recently been decided; and the whole principle underlying the Court of Common Pleas, which, as we have seen, was a court of limited and delegated jurisdiction, must have encouraged it to develop a routine in handling its business. This does not mean that there was anything in the twelfth century even faintly resembling the modern principle of precedent; there was merely a tendency to establish a procedure, and perhaps to adopt a few substantive principles which, taken together, constituted the custom of the court.

BRACTON’S USE OF PLEA ROLLS

The Court of Common Pleas was about eighty years old when Bracton was engaged upon his treatise, and as every historian has observed, that treatise is distinguished by its extensive use of cases. Some consideration must therefore be given to the use which Bracton made of the material which he collected in his famous Note Book. The very first page of Bracton’s treatise throws remarkable light upon his point of view. He asserts that the present bench is much inferior to its predecessors; foolish and ignorant judges, who have mounted the judgment-seat before they have learnt the law, have corrupted its doctrine; they decide cases by fancy rather than by rule. And so Bracton, using words which would sound presumptuous in any lesser man, announces his intention of instructing the younger generation in the principles of the law by writing this treatise, which he solemnly commends to perpetual memory. Bracton’s book, therefore, is an attempt to bring back the law to its ancient principles, and the attempt is made by one whose official position was no doubt impressive, but who was still more conscious of his own intellectual powers and of his mission in restoring the law. In this same sentence he tells us that he looks largely to the decisions of a previous generation of upright judges together with their private opinions—and the two thick volumes of his Note Book justify his claim that he collected them diligently and laboriously. His intention, therefore, is to use cases. But it must be observed that whatever use he made of these cases was necessarily peculiar to himself. He alone of all the lawyers in England sought and obtained access to the plea rolls; he used the originals, and there were no copies until he made one for his own convenience, containing the cases which he selected.1 None of his contemporaries attempted such a thing. Bracton clearly was the only lawyer of his day who chose to exert a good deal of court influence in order to obtain the loan of numerous plea rolls, and who was ready to devote immense pains and labour in searching hundredweights of manuscript and having his discoveries copied in a very substantial volume. Clearly, then, we have no right to assume that Bracton’s use of case law was any part of contemporary legal thought. On the contrary, it is clear that he was undertaking research into the present and former condition of the law by a novel method which he had devised, namely, the search of plea rolls, which was a new discovery in his day. Any use of cases on Bracton’s lines by the profession at large, or even by the bench alone, would have been manifestly impossible. The plea rolls are immense in number and there was and still is no guide to their contents; they have to be read straight through from beginning to end without any assistance from indexes or head-notes.

BRACTON’S USE OF CASES

Bracton, therefore, had discovered a new instrument of research, and owing to his fortunate official position he was enabled to use it. If we examine the use which he actually made of the cases he discovered, it will be clear at once that he was not actuated by any of the modern ideas of case law. Many of the cases he uses are quite old, and he admits that many of them are not law to-day. But the whole of his argument is that his contemporaries have perverted the law, and that the recent cases are bad ones, while the old cases were good—intrinsically good, that is to say, as embodying sound principle. In other words, Bracton has no hesitation in using cases which we should call out of date or overruled, in order to maintain that the law ought to be something different from what it is. From this it is clear that the whole of Bracton’s position would fall if decisions, as such, were in any modern sense a source of law. Under any such theory if decisions were authoritative a choice would have to be made between contradictory decisions, and so a theory of case law would have to be devised. It is the very absence of such a theory which enabled Bracton to carry out his plan, and that plan seems to have been to state in logical order a series of legal propositions, and then to illustrate their working from cases. Bracton first states his principles and then adduces his cases as historical evidence of the accuracy of his statements. This is a vastly different method from taking the cases first and deducing rules of law from them. Bracton’s whole purpose is to reconstruct, and, if possible, to revive the law of nearly a generation ago; he would put the clock back and restore the court’s custom as it used to be in its best period, and it is as evidence of that custom that he uses his cases. In Bracton’s hands a case may illustrate a legal principle, and the enrolment may be historical proof that that principle was once applied, but the case is not in itself a source of law.1

BRACTON’S INFLUENCE ON CASE LAW

This does not mean that Bracton’s novel method of studying law was without effect; we have already suggested that his use of cases may have interested his contemporaries and the succeeding generation, and it may be that it prompted other lawyers to collect records of cases when they had the opportunity.2 Indirectly, therefore, Bracton’s influence may have something to do with the rise of the Year Books. The plea rolls of Edward I show that litigants would cite older cases.3 Access to the plea rolls was still almost impossible to obtain, and so, instead, reports were circulated of discussions in court as the next best thing—and with the growth of scientific pleading these reports were superior for practical purposes to the plain transcript of the record which Bracton used, for the reports give the discussions and the reasons for the matters which appeared upon the record. Of the Year Books we have already spoken; they cover several centuries and copies are fairly numerous; but were they used for the same purposes as a modern law report? There seems no doubt that they were not. There are quite frequent cases in the Year Books where we find judges or counsel mentioning previous decisions. They seem generally to quote from memory; sometimes they give us the names of the parties, but not always. Occasionally such a citation is answered by a denial that the situation is the same; more rarely it will be retorted that the case cited is bad law; a little more frequently the court will indicate that whatever the older case may say, the court does not intend to apply that principle.1 In short, the citation of a case in point may perhaps be persuasive enough for counsel to think it worth while, but it is certainly not in the least degree binding.

THE YEAR BOOKS AND PRECEDENT

And yet, on the other hand, when a novel or important point is raised, the court is fully conscious that its decisions may start a stream of other decisions in a particular direction. In 1274 there was a remarkable test case between the Queen of Germany and the Earl of Cornwall on the law of dower in which the queen spoke “for the common benefit of other ladies seeking dower in the future”2 and a generation later, in an early Year Book we find counsel reminding the bench “that the judgment to be given by you will be hereafter an authority in every quare non admisit in England”,3 but, as Professor Winfield remarks,—

This is clearly in accord with the opinion of the best legal theory of the Middle Ages; in 1315 Bereford, C.J., quoted from Bracton the well-known adage that non exemplis, set racionibus adjudicandum est.5

Still, it would be rash to say that there was no conscious judicial legislation in the Year Book period; in 1305 Hengham ordered a party to use a particular procedure, adding “and consider this henceforth as a general rule”.6 In 1310 Chief Justice Bereford observed that “by a decision on this avowry we shall make a law throughout all the land”.7 He certainly did not mean that the Year Book report of this case would be quoted as authoritative in later cases, for we are still clearly in the period when the common law was primarily the custom of the King’s Court; the decision of an important point after due deliberation added one more element to the mass of custom which the King’s Court applied—and, as we have already seen, the remarkable feature about custom was the ease with which it grew up and the facility with which it could be changed. Even such striking words as those we have just quoted cannot be properly interpreted as evidence of the existence of a system of case law. Even in the later Year Books down to the fifteenth century the same observation holds true; the Year Books themselves (of which there were a goodly number by this time) were not regarded as collections of authoritative or binding decisions. The nearest resemblance to such a notion is to be found in some remarkable words of Chief Justice Prisot in 1454. In spite of three large folios of discussion Prisot maintained that the matter was clear:

Clearly there is the faint beginning of a more modern spirit in these words; the Chief Justice is seeking the contemporaneous exposition of the statute in question and maintains that there is a balance of authority in favour of his view. His objection to going against that authority is that it would be “strange”—a common expression in the Year Books for “inconsistent”. He would strike a balance between “some opinion of some judge or two” and many judgments by several honourable judges; but even then the result is not the discovery of an authentic binding precedent.2 The thought of a decision against such a weight of authority shocks him chiefly because it will confuse law students and shake their confidence in their books; which perhaps is another way of saying that even a mere student in reading the case would detect its inconsistency with established principle, and would perhaps hardly credit what he read. This is possibly the meaning of some other passages in the Year Books where the court finds it salutary to look at a proposition from the point of view of the law student; Bereford explained his decisions “for the sake of the young men who are present”, and down to the eighteenth century judges in court would bear in mind the fact that a judgment might be expanded into a lecture for the law students who were present.3 Clearly, students studied their law in court and also in the Year Books, and as late as 1454 an awkward decision in the Year Books will be criticised (as we have seen) because it is confusing to students. But the most significant part of Prisot’s remarks lies in the fact that he regards even the decisions of many honourable judges as only persuasive; neither he nor the other lawyers who argued the case regarded themselves as bound by any of the decisions mentioned.1

CUSTOM AND PRECEDENT DISTINGUISHED

An important point to remember is that one case constitutes a precedent; several cases serve as evidence of a custom. In the Year Book period cases are used only as evidence of the existence of a custom of the court. It is the custom which governs the decision, not the case or cases cited as proof of the custom. Nor does it appear that a court would follow a case where it felt the result would be mischievous. The distinction is clearly seen when mediaeval practice is contrasted with that of our own day; at the present time it is possible for a judge to explain that his decision works substantial injustice, and is questionable on principle, but he is bound by a particular case. This is a typical example of the working of the principle of precedent. Such things are not to be found in the Year Books, however. A single case was not a binding authority, but a well-established custom (proved by a more or less casual citing of cases) was undoubtedly regarded as strongly persuasive.

EXCHEQUER CHAMBER CASES

We have already mentioned the constitution of the court of discussion which was held in the Exchequer Chamber.2 Decisions given by this imposing array of judges enjoyed exceptional prestige. In the popular speech of the sixteenth century a “chequer chamber case” means any difficult matter which needs mature deliberation and authoritative decision.3 The judges themselves shared this respect for the decisions reached by all the benches assembled. A striking example of this is an incident in 1483 when the chamber reached a decision on a case originating in the court of common pleas by a majority. When the chief justice of the common pleas gave judgment, he explained that he disagreed with the decision of the chamber, but was bound to adopt the view of the majority.4

This, no doubt, was merely the application of the majority principle, but the extension of it to other situations was almost inevitable. If the decision of the chamber bound the judges who took part in it, there would soon follow the question whether it might not bind judges who were trying subsequent cases involving principles which the chamber had previously settled.

In the sixteenth century this actually took place, and in the seventeenth it was settled that a decision of the Exchequer Chamber was a binding precedent. Coke asserted that a resolution of all the judges was almost as high as a statute,1 Bacon urged that even the chancellor would yield to the opinion of all the judges;2 in 1602 a decision of the chamber was referred to as “the resolution of all the judges of England” which was “to be a precedent for all subsequent cases”,3 and in 1686 Herbert, C.J., announced it as “a known rule that after any point of law has been solemnly settled in the Exchequer Chamber by all the judges, we never suffer it to be disputed or drawn in question again”.4

Here we find for the first time the principle that a single case may be a binding precedent, but such high authority attaches only to decisions of the Exchequer Chamber; it does not apply to decisions of either bench, nor to those of the House of Lords.

THE AGE OF THE REPORTERS

When we come to the sixteenth century we get a little nearer the modern point of view, although even such a reporter as Dyer thought it worth while to report what the judge said privately and what was said in mock trials in Lincoln’s Inn.5 If he uses the word “precedent” in 1557 (which Sir Carleton Allen thinks is the first occurrence of the word) it is merely to tell us that in spite of two “precedents” the court adjudged the contrary.6 At about the same time there is a passage in Plowden wherein it is stated “that the records of every court are the most effectual proofs of the law in relation to the things treated of in the same court”;7 but the examples which he gives are all matters of criminal law, and it is well known that the Crown frequently had its records searched where royal interests were involved—as they were in matters of treason and felony. There is no indication that in Plowden’s day anyone save a Crown lawyer would usually be allowed to search Plea Rolls for precedents.

As for cases (apart from records) the continuance of the mediaeval attitude is clearly shown by the remark of Wray, C.J., and Gawdy, J., in 1587: “as he who is a bastard born hath no cousin, so every case imports suspicion of its legitimation, unless it has another case which shall be as a cousin-german, to support and prove it”.8 It is when we come to the time of Coke that we find the citation of precedents particularly common, and the theme of his discourse is still that “two or three precedents” cannot prevail against a long catena of older authority.1

After the Restoration we find a few rules judicially laid down to govern their use. In 1670 Chief Justice Vaughan distinguished dicta from those parts of the judgment which form an integral part of it, although he admits that if a judge believes a previous case in another court to be erroneous he is not bound to follow it.2 A hundred years later Blackstone was not able to add very much to this.3 A considerable amount of material from the reporters during this period has been collected, and seems to indicate that although more attention was given to cases, yet the fundamental attitude towards them had not changed. Printing and the later abridgments obviously made it possible to assemble a large number of citations, and so an increase in the number of cases cited is easily explained. Their very number is significant: under a developed system of precedents one case is as good as a dozen if it clearly covers the point, and at the present day citations are consequently few and to the point. The eighteenth century, however, still seems tempted to find safety in numbers, and to regard the function of citations to be merely that of proving a settled policy or practice.

As Sir William Holdsworth has pointed out,4 there were circumstances under which the courts considered themselves free from any obligation to follow precedents. If following them would lead to “inconvenient” results, then it was arguable that the precedents did not represent the true state of the law—a specious argument typical of Coke’s mentality. Another possibility was to blame the reporter for cases one did not like (a device often used by Mansfield, who loved to contrast principle with precedent5 ), while the fact that there were then several common law courts with concurrent jurisdiction enabled some picking and choosing to take place, it being recognised that the decisions of one of these courts did not bind the others.

The growth of precedent in chancery is remarkable for the speed with which it supplanted the original basis of equity. Conscience, ratio, was yielding to cases, exempla, already in the seventeenth century, possibly because chancery was very sensitive to the taunts of common lawyers. The use of cases in chancery therefore resembled closely the practice of the common law courts.6

THE ESTABLISHMENT OF THE STRICT THEORY

While these reservations were possible, the modern strict theory could not be established. It is to the nineteenth century that we must look for the final stages in the erection of the present system.1 We have already noticed how little attention was paid to decisions in the House of Lords.2 That tribunal began to take a prominent part in the elaboration of private law when it undertook to upset the reforming efforts of Lord Mansfield, and it may be suspected that the overruling of some of his most famous judgments did much to attract the attention of legal conservatives to the House.3 But even as late as the days of Baron Parke, less than a hundred years ago, it was possible for that very learned judge to ignore decisions of the House of Lords;4 while Exchequer and Queen’s Bench held different views on the same point as late as 1842.5

The nineteenth century produced the changes which were necessary for the establishment of the rigid and symmetrical theory as it exists to-day. The exclusion of lay lords from judicial functions in the House of Lords, together with the addition of professional lords of appeal in ordinary, left that house a much stronger body than ever before. The organisation of one court of appeal instead of many had a similar result in the middle rank of the hierarchy,6 while the unification of the high court cleared away the possibilities of choice which existed as long as there were uncoordinated courts of King’s Bench, Common Pleas and Exchequer. Even law reporting is now standardised and semi-official.

Nowhere is the difference between the eighteenth century and the nineteenth century attitude more clearly seen than in the treatment of custom. We have already insisted on the flexibility of a living custom, and when Lord Mansfield incorporated the custom of merchants into the common law, it was a living flexible custom, responding to the growth and change of mercantile habits. It is so still, but if perchance a court has given a decision on a point of that custom, it loses for ever its flexibility and is fixed by the rule of precedent at the point where the court touched it.7 The custom of the court itself now undergoes the same sort of change, and the custom of the common law is in some danger of losing its old adaptability. If judicial decision is a source of law, it would not be inappropriate to describe it in this connection as a source pétrifiante.

BOOK TWO

SPECIAL PART

[1]Vinogradoff, Roman Law in Mediaeval Europe (2nd edn.), 13.

[1]To contrast “Germanic” and “Roman” law is therefore an over-simplification; see the important study of Ernst Levy, West Roman Vulgar Law (1951) and my review in Traditio, viii. 446.

[2]It came into force in 534.

[1]The evidence is re-examined by Professor de Zulueta in his edition of Vacarius’ Liber Pauperum, xvi (Selden Society).

[2]The Statute of Bigamists (Statutes of the Realm, i. 42); see also Stubbs, Constitutional History (1875), ii. 107 n. 2.

[3]For a translation of some of his remarks, see Beale, Bartolus on the Conflict of Laws.

[4]General introductions to this enormous field of study can be found in Hazeltine’s chapter in the Cambridge Mediaeval History, vol. v; R. L. Poole, Illustrations of Medieval Thought (2nd edn., 1932); C. N. S. Woolf, Bartolus of Sassoferrato (1913); W. Ullmann, The Medieval View of Law (1946), which has a well-chosen bibliography.

[1]Holdsworth, viii. 122, 123.

[2]Above, p. 8; below, p. 511.

[3]Holdsworth, ii. 147; cf. ibid., 133-137.

[4]Holdsworth, ii. 202-206.

[5]They are described in Professor Hazeltine’s introduction to Radulfi de Hengham Summas (ed. Dunham).

[6]Edited by Caillemer, Le droit civil dans les provinces anglo-normandes.

[1]Vinogradoff, Roman Law in Mediaeval Europe (ed. F. de Zulueta), 100.

[2]Above, pp. 261-263.

[3]Senior, Roman Law MSS. in England, Law Quarterly Review, xlvii. 337.

[4]Above, p. 204. For a fuller discussion, see Plucknett, The Relations between Roman Law and English Common Law, Univ. Toronto Law Journal, iii. 24.

[5]Hart, Roman Law and the Custom of London, Law Quarterly Review, xlvi. 49.

[1]Maitland, English Law and the Renaissance (reprinted in Select Essays in Anglo-American Legal History, i. 168-207); the criticisms that follow are set forth in more detail in Holdsworth, iv. 253-262.

[2]See below, pp. 584 ff.

[1]29 Charles II, c. 3 (1677).

[2]22 & 23 Charles II, c. 10 (1670).

[3]W. H. D. Winder, Sir Joseph Jekyll, Law Quarterly Review, lvii. 512 at 535.

[4]See above, pp. 247, 264.

[5]Above, pp. 249-250.

[6]See Oliver, Roman Law in Modern Cases in English Courts (Cambridge Legal Essays), 243.

[1]Above, pp. 4-5.

[2]For the sources and literature of both civil and canon law see Hazeltine, Roman and Canon Law in the Middle Ages, in Cambridge Mediaeval History, v. 697-764. For very valuable accounts of their general influence, see Meynial, Roman Law, and Le Bras, Canon Law, both in Crump and Jacob, Legacy of the Middle Ages.

[1]See above, p. 118.

[1]An excellent short introduction is F. Cimetier, Les Sources du droit ecclésiastique (Paris, 1930).

[2]A brief account of the Church’s view of law will be found in Sertillanges, La philosophie des lois (Paris, 1946).

[3]Le Bras, Canon Law (in Crump and Jacob, Legacy of the Middle Ages), 328, 329.

[1]Le Bras, op. cit., 351.

[2]A useful collection of material is available in Spies, Observation des simples conventions en droit canonique (Paris, 1928).

[1]For the text and some comments see Engelmann (ed. Millar), History of Continental Civil Procedure, 495.

[1]Legacy of the Middle Ages, 361.

[1]Wehrlé, De la coutume dans le droit canonique, 139-140. Cf. “twice makes a custom”, P. de Fontaines (c. 1259), Conseil à un ami, 492.

[1]Dicey, Law of the Constitution, 1885; 8th edn., 1915.

[2]Plucknett, Statutes and Their Interpretation, 134.

[1]See in general, Lambert, La Fonction du droit civil comparé, i. 103-208; Wehrlé, De la coutume dans le droit canonique.

[1]He wrote an admirably lucid little book on copyhold (as such customary tenure was later called).

[1]Plucknett, Y.B. 13 Richard II, Introduction, pp. xlii, xliii.

[2]This is the date of limitation fixed in 1275 (Westminster I, c. 39) for writs of right. It was also the limit in Normandy: Summa de Legibus,cxi. 13 and Arresta Communia (ed. Perrot), p. 33 n. 2. Its transference to custom was helped by the fact that in 1290 it was enacted that the user of franchises ever since that date would be an answer to a writ of quo warranto; st. 18 Edw. I. Below, p. 719.

[3]Littleton, s. 170, states the rule but with doubt and disapproval; Coke is more positive, Co. Lit., in loc.

[4]Case of Tanistry (1608), Dav. 28.

[1]This is the most recent suggestion made by Lemaire, Les Origines de la communauté de biens entre époux, Revue historique de droit (1928), 584-645. Even in England we had customs which might have grown into a system of community (e.g. Leis Willelme, c. 27) had not the Crown insisted on so extensive a right of forfeiture (Rot. Parl., ii. 8 (13), 11). Cf. Maitland, Collected Papers, ii. 289. Similarly, we find a wife making a will (with her husband’s assent, it was said) of half the goods of her and her husband—a practice which in some places largely contributed to the growth of the idea of marital community: Y.BB. Edward II (Selden Society), x. 243 (1311).

[2]For a list of county customs, see N. Neilson in Harvard Law Review, xxxviii. 483-484.

[3]For the boroughs, their provisions have been arranged according to subject matter in one corpus by Mary Bateson, Borough Customs (2 vols. Selden Society). Borough charters have been similarly treated by Ballard and Tait. For royal charters empowering boroughs to ordain, amend and add fresh customs, see A. K. Kiralfy, Action on the Case, 236.

[1]Plucknett, Y.B. 13 Richard II (Ames Foundation), 80, and Introduction, xlvi.

[2]See the recent suggestive article by Schechter, Popu ar Law and Common Law, Columbia Law Review, xxviii. 269-299.

[1]Jenks, Law and Politics in the Middle Ages (2nd edn.), 17.

[2]Jenks, op. cit., 21. Fritz Kern, Kingship and Law (1914; tr. S. B. Chrimes, 1939) contains many brilliant, but hazardous, generalisations which it is impossible to deal with here. For a reading of English history in the light of Kern’s theories, see Geoffrey Barraclough, Legislation in Medieval England, Law Quarterly Review, lvi. 75. Somewhat similar views had already been expressed by C. H. McIlwain, High Court of Parliament (1910).

[1]Declareuil, Histoire générale du droit français (1925), 213-214. The very interesting theory of Goebel, Felony and Misdemeanour,i. 229 n. 80, is attractive.

[2]Declareuil, 795-796.

[1]Examples of county legislation come from Kent in 1259 (E. F. Jacobs, Baronial Reform, 351-352) and Chester in 1260 (R. Stewart-Brown, Chester County Court Rolls, 5-6); borough bye-laws are very common; we hear of manorial statutes in 1234 (Bracton’s Note Book, no. 842), and there is much material in the thirteenth century (W. O. Ault, Some Early Village Bye-laws, English Historical Review, xlv. 208; G. C. Homans, English Villagers); the text of a late example in 1756 has survived (Vinogradoff, Collected Papers, i. 138-148, 286-296).

[2]An example from St Albans is mentioned, p. 186 above.

[3]The city of London sometimes claimed that general statutes would not derogate from the city’s franchise. Cf. Rot. Parl. Inediti, 128 (5); Sayles, King’s Bench,iii. p. xxxix; Y.B. 19 Henry VI, ff. 64-65 (Pasch. no. 1), per Fortescue. For a similar claim by ancient demesne, see Plucknett, Statutes and their Interpretation, 64.

[4]Hic Intimatur, c. 10 (in Stubbs, Select Charters, 8th edn., 83-85).

[5]Above, p. 12.

[6]Above, p. 14.

[1]Pollock and Maitland, ii. 461.

[2]Stenton, English Feudalism, 37-40.

[3]Summarised above, pp. 17-18.

[4]Valuable references are in Pollock and Maitland, i. 189 n. 4; cf. one such example translated above, p. 119.

[5]The current text is composite: Maitland, Bracton’s Note Book, i. 104 ff.; G. J. Turner, Some Thirteenth Century Statutes, Law Magazine and Review, 4th ser., xxii. 245-250; Woodbine, Statute of Merton, Law Quarterly Review, xxvi. 151; Holdsworth, ii. 221; Powicke, Henry III (1947), ii. 769.

[1]For its significance, see above, p. 26.

[2]The general nature of Edward I’s legislation has been described above, pp. 27-31.

[3]23 January 1236.

[1]The earlier is sometimes called the Statute of Acton Burnel.

[2]As finally published in 1307, the enacting clause thus omits to recite the assent of the bishops; but when first brought before parliament in 1305 the bishops are said to have assented: Maitland, Memoranda de Parliamento, li, 314.

[1]Plucknett, Statutes and Their Interpretation, 9.

[2]Winfield, Chief Sources of English Legal History, 72, 73.

[1]Plucknett, Statutes and Their Interpretation, 32-34; Holdsworth, Sources and Literature of English Law, 48. A slightly different view is taken by Richardson and Sayles, Early Statutes, Law Quarterly Review, l. 556 ff.

[2]Putnam, Enforcement of the Statutes of Labourers, 179.

[3]Above, p. 175.

[4]Examples are given by Richardson and Sayles, Law Quarterly Review, l. 549 ff., 562, who suggest that such action was not so irregular as historians have generally thought.

[1]As to this, see Taswell-Langmead, Constitutional History (ed. Plucknett), 210-211. Cf. p. 333 below.

[1]5 Eliz., c. 4.

[2]39 Eliz., c. 5 (made perpetual, 21 Jac. I, c. 1, § 2). Nothing could be more modern than a general corporation statute, but it will be noticed that Elizabeth’s act ends with an interpretation clause which looks quite mediaeval: “such construction shall be made upon this act as shall be most beneficial . . . for the . . . poor, and for repressing and avoiding all acts and devices to be invented or put in ure [use] contrary to the true meaning of this act”.

[3]19 Hen. VII, c. 28 (1504).

[4]31 Hen. VIII, c. 8 (1539).

[5]28 Hen. VIII, c. 7 (1536). Others are 37 Hen. VIII, c. 12, and 2 & 3 Philip and Mary, c. 4, s. 19.

[6]Magdalen College Case (1615), 11 Rep. 70. Cf. “rex enim omnes artes censetur habere in scrinio pectoris sui”—Bonham’s Case (1610), 8 Rep. 116 b. Similar words were applied to mediaeval popes.

[7]Bonham’s Case (1610), 2 Brownl. 260.

[1]Interpretation Act, 1889. For a survey of the older editions of statutes, see Winfield, Chief Sources of English Legal History, 84-95.

[2]See Plucknett, Legal Chronology, in Handbook of Dates for students of English History (ed. C. R. Cheney: Royal Historical Society, 1945).

[1]Carr, “Citation of Statutes” in Cambridge Legal Essays, 72.

[2]Plucknett, Statutes and Their Interpretation, 23.

[3]The early printers greatly increased the list of pseudo-statutes in their endeavours to bring out ever bigger and more complete collections.

[4]See now, Richardson and Sayles, Early Statutes, in Quarterly Review, l. 548.

[5]References will be found in Plucknett, op. cit. Even in Coke’s day, the problem of proving a statute might be difficult; The Prince’s Case (1606), 8 Rep. 1.

[1]R. v. Bishop of Chichester (1365), Y.B. 39 Edward III, f. 7.

[2]38 Edw. III, stat. 2; they have been noticed by Richardson and Sayles, Law Quarterly Review, l. 559; cf. Plucknett, Statutes and their Interpretation, 34, 143.

[3]The rule is settled in Partridge v. Strange and Croker (1553), Plowd. 77; Maitland, Collected Papers, iii. 195, must have overlooked this case, for he there suggested that the rule may have been unknown in 1559; for its history, in England and America, see Kent, Commentaries, i. 454 ff.

[4]29 Car. II, c. 3 (1677), ss. 14-16.

[5]33 Geo. III, c. 13 (1793).

[1]Unde jus prodit, interpretatio quoque procedat: c. 31, X. 5, 39. The canonists restricted the doctrine somewhat; Lyndewoode, Provinciale (ed. 1679), 246 declarandum.

[2]Bartholomaeus de Saliceto on C. 1. 14. 12. Compare Bracton, f. 106: est enim eius interpretari cuius est concedere (of fines levied in the king’s court), and f. 34 (of the king’s charters). See generally, H. Kantorowicz and W. W. Buckland, Studies in the Glossators, 192, and W. Ullmann, Medieval Idea of Law, 112 ff.

[3]Stubbs, Select Charters (1905), 357. The date was 1226.

[4]Statutes of the Realm, i. 118.

[5]Close Rolls (1256-1259), 489.

[6]Exposition of the Statute of Gloucester, Statutes of the Realm, i. 50.

[7]Ibid., 52.

[8]Y.B. 30 & 31 Edward I (Rolls Series), 441.

[9]Y.B. 40 Edward III, f. 34 b.

[1]“It is magis congruum that Acts of Parliament should be corrected by the pen that drew them, than to be dashed to pieces by the opinion of a Law Judge” [Egerton], Observations on Coke’s Reports, ii.

[2]Ash v. Abdy (1678), 3 Swans. 664.

[3]Gutteridge, Comparative View of the Interpretation of Statute Law, Tulane Law Review, viii. 10.

[4]Hilder v. Dexter, [1902[ A.C. 474 at 477.

[5]See the literature mentioned by Professor H. C. Gutteridge, above n. 3.

[6]In 1564 Pope Pius IV created a special congregation of cardinals to whom Pius V shortly afterwards gave the exclusive power of interpreting the decrees of the Council of Trent.

[7]Above, p. 183.

[1]Y.B. 32 & 33 Edward I (Rolls Series), 429.

[2]Y.B. 33 & 35 Edward I (Rolls Series), 82. As a litigant remarked in an Irish case of 1290, “no one ought to gloss the king’s statute”: Sayles, King’s Bench, ii. 76.

[3]Y.B. 15 Edward III (Rolls Series), 388-394.

[1]Y.BB. Edward II (Selden Society), xi. 176-177.

[2]Plucknett, Statutes and Their Interpretation, 70.

[1]Y.B. 16 Edward III (Rolls Series), i. 90 (1342).

[2]Y.B. 17 Edward III (Rolls Series), 142 (1343); Y.B. 17 & 18 Edward III (Rolls Series), 446; Y.B. 18 Edward III (Rolls Series), 131.

[3]Y.B. 17 Edward III (Rolls Series), 370 (1343).

[4]Baldwin, Select Cases before the King’s Council (Selden Society), xxiv.

[5]The practice of basing statutes upon common petitions naturally directs attention to the written text, but it is the adoption of the bill procedure (above, p. 324) which finally compels parliament, the courts and the public to scrutinise the ipsissima verba of a statute.

[6]The movement was not successful, although traces of it have survived. Its abandonment may be due to its inconsistency with a more important principle, viz. that statutes are binding even in ecclesiastical matters. See Articuli Cleri, c. 20 (1605) in 2 Inst. 599 ff.; March, N. C., 90, No. 148 (1640); Gould v. Gapper (1804), 5 East, 345.

[1]See the outline in Blackstone, Commentaries, i. 59-61, 85-91, and Kent, Commentaries, i. 454-468 (both reproduced in Pound and Plucknett, Readings, 40-42, 252-269). There is an elaborate discussion of interpretation by a divided court in Y.B. 4 Edward IV, Pasch. no. 4 and no. 19.

[2]Fulmerston v. Steward (1554), Plowd. 109.

[3]Blackstone, Commentaries, i. 61. See in general, Loyd, The Equity of the Statute, in Univ. Pennsylvania Law Review, lviii. 76; Thorne, The Equity of a Statute, Illinois Law Review, xxxi. 202-217, and Thorne, introduction to [Egerton], Discourse on Statutes.

[1]Cf. the treatment of appeal cases in the House of Lords, above, pp. 202-203.

[2]Such material may be sometimes used now: see ReC., an Infant, [1937] All E.R. 783 at 787.

[3]Millar v. Taylor (1769), 4 Burr. 2303 at 2332. Cf. Thorne, in Speculum, xi. 457.

[4]In Entick v. Carrington (1765) 19 S.T. 1030, Lord Camden used the Commons’ Journals to elucidate the statute 16 Charles I, c. 10.

[1]Salkeld v. Johnson (1848), 2 Exch. 256 at 273. Cf. the useful note on this point in Law Quarterly Review, lv. 488-490.

[2]Gutteridge (supra, p. 330 n. 3), 20; cf. H. A. Smith, Interpretation in English and Continental Law, J. Soc. Comparative Legislation (1927), 153.

[3]S. Vesey-FitzGerald, The Interpretation of Codes in British India, Madras Law Journal, lxviii. 67 at 69.

[4]McIlwain, High Court of Parliament (1910); McIlwain, Magna Carta and Common Law (Magna Carta Commemoration Essays); McIlwain, American Revolution (1924). For criticisms see Plucknett, Statutes and Their Interpretation, 26-31; Plucknett, Bonham’s Case and Judicial Review (Harvard Law Review, xl. 30-70); Holdsworth, Sources and Literature, 41-43; Allen, Law in the Making, 250-257; Thorne, Bonham’s Case (Law Quarterly Review, liv. 543).

[1]Above, p. 51.

[2]Bonham’s Case (1610), 8 Rep. 118; City of London v. Wood (1701), 12 Mod. 669 (both in Pound and Plucknett, Readings, 33, 34). Some new material has been collected by C. F. Mullett, Fundamental Law and the American Constitution (1933), and for a critical examination of the whole question, see now J. W. Gough, Fundamental Law in English Constitutional History (1955).

[3]It was easier to make a woman a man: 1 Mary, sess. 3, c. 1, s. 3.

[4]R. v. Earl of Banbury (1695), Skin. 517, 527.

[5]The later stages of the doctrine can be seen in Day v. Savadge (1614), Hob. 85; City of London v. Wood (1701), 12 Mod. 669; Duchess of Hamilton’s Case (1712), 10 Mod. 115; Lee v. Bude & Torrington Junction Ry. (1871), L.R., 6 C.P. 576.

[1][Egerton] Discourse upon Statutes (ed. Thorne), 165-166, refuses to admit that a statute can become obsolete, but has to confess that it may be “enfeebled” by passage of time. The statute 1 Henry V, c. 1, gave great difficulty in the seventeenth and eighteenth centuries when it was never observed; see the curious arguments in R. H. Peckwell, Reports of Elections, I. i. 53 ff. (Owing to the privilege of the House, the law courts were not confronted with this particular puzzle.)

[2]Chester County Court Rolls, ed. R. Stewart-Brown (Chetham Society), 75-76.

[3]R. v. Bishop of Lincoln (1345), Y.B. 19 Edward III (Rolls Series), 170.

[4]R. v. Bishop of St. Davids (1409), Y.B. 11 Henry IV, ff. 7, 39 b. In 1464 the matter was put in doubt: Y.B. 4 Edward IV, Pasch. 4.

[1]For such a case, see Y.B. 13 Richard II (ed. Plucknett), 161 (1390).

[2]Littleton, s. 108; Co. Litt. 81 b; cf. Glanville, J., in Corbet’s Case (1600), 1 Rep. 88, and Choke, J., on the statute 15 Hen. VI, c. 3, in R. v. London (1465), Long Quinto, ff. 33-34.

[3]R. v. Bailiffs and Burgesses of Bewdley (1712), 1 Peere Wms. 207 at 223 per Parker, C.J.

[4]Ashby v. White (1703), 2 Ld. Raym. 938 at 944, 946, 957.

[5]Chapman v. Pickersgill (1762), 2 Wilson 146.

[6]R. v. Inhabitants of Cumberland (1795), 6 Term Rep. 194, 195, 197.

[7]Leigh v. Kent (1789), 3 Term Rep. 362.

[8]Stewart v. Lawton (1823), 1 Bing. 374.

[1]Some recent work on the subject is reviewed in Plucknett, L’Interprétation des lois, in Introduction à l’étude du droit comparé, Recueil Lambert, i. 434-449. The more recent history of the notion is well worked out in the later chapters of J. W. Gough, Fundamental Law (Oxford, 1955).

[1]It was edited and printed as Bracton’s Note Book, ed. Maitland, 1887. Above, p. 260. (See Casus et Judicia (printed in Casus Palcitorum, ed. Dunham, Selden Society, vol. 69) for an attempt to abstract plea-roll cases).

[1]T. E. Lewis, History of Judicial Precedent, Law Quarterly Review, xlvi. 212, suggests that it was.

[2]Above, pp. 260-261.

[3]Sayles, King’s Bench,ii, cviii, iii, xxx.

[1]Numerous examples will be found in Winfield, Chief Sources, 149-152; Allen, Law in the Making, 126-136; and T. E. Lewis, History of Judicial Precedent, Law Quarterly Review, xlvi. 207, 341, xlvii. 411, xlviii. 230. It is not always easy to distinguish citations in the report from subsequent annotations by later readers which have by now become part of the text—or even may have corrupted the text: cf. Y.BB. Edward II (Selden Society), xxiv. lxxxiii ff.

[2]Casus Placitorum (Selden Society), 61.

[3]Y.B. 32 & 33 Edward I (Rolls Series), 32.

[4]Winfield, Chief Sources, 149.

[5]Y.BB. Edward II (Selden Society), xvii. 118; the maxim comes from Cod. 7.45.13.

[6]Y.B. 33 & 35 Edward I (Rolls Series), 6. Note that five years later Bereford adjudged the contrary of Hengham’s “general rule”: Y.BB. Edward II (Selden Society), iii. 91-92.

[7]Y.BB. Edward II (Selden Society), iv. 161. (For the history of which this case was a part, see Plucknett, Legislation of Edward I, 63 ff.) These examples suggest a comparison with the Attiremens et Jugiés d’Eschequiers, ed. Génestal and Tardif (Caen, 1921) of Normandy.

[1]Y.B. 33 Henry VI, Michs. 17, fo. 41.

[2]It resembles much more closely the weighing of authorities in Roman and canon law.

[3]“Lord Mansfield delivered the opinion of the court, having first desired Mr Hussey to state the case for the sake of the students” (R. v. Peters (1758), 1 Burr. 568).

[1]On the citation of decisions in colonial America, see Joseph Henry Smith, Appeals to the Privy Council from the American Plantations, 464 n. 2.

[2]Above, p. 162.

[3]See the passages in Dr Hemmant’s introduction to Select Cases in Exchequer Chamber (Selden Society, vol. 51), xiv, on which this paragraph is largely based. Cf. Y.B. 19 Edward III (Rolls Series), 140.

[4]Y.B. 1 Richard III, Michs. no. 2 (at the end).

[1]2 Inst. 618, Articuli Cleri.

[2]Argument in Calvin’s Case (1608), Works (ed. Spedding), vii. 642.

[3]Slade v. Morley (1602), Yelv. 21.

[4]Godden v. Hales (1686), 11 S.T. 1254.

[5]1 Dyer, 14, 111.

[6]Anon., Dyer, 148 b.

[7]The Case of Mines, Plowd. 310, at 320 (1567).

[8]Walker’s Case (1587), 3 Rep. 23.

[1]Slade’s Case (1596), 4 Rep. 91, contains Coke’s views on the use of cases. For a criticism of the principle in 1649 see Holdsworth, vi. 414.

[2]Bole v. Horton (1670), Vaughan, 360, 382; cf. Edgecomb v. Dee (1670), Vaughan, 89 at 93.

[3]Bl. Commentaries, i. 69-72.

[4]Holdsworth, Case Law, Law Quarterly Review, I. 180-195, reprinted in his Essays in Legal History, 147.

[5]Fifoot, Lord Mansfield, 198-229.

[6]See W. H. D. Winder, Precedent in Equity, Law Quarterly Review, lvii. 245.

[1]Goodhart, Case Law, Law Quarterly Review, l. 196-200; contra, Holdsworth, xii. 146, Law Quarterly Review, l. 180, and Essays in Legal History, 147.

[2]Above, p. 220; cf. below, p. 591 n. 2.

[3]Thus the House of Lords in Rann v. Hughes (1778), 4 Bro. P.C. 27; 7 Term Rep. 350, overruled Mansfield’s view of consideration expressed in Pillans v. Van Mierop (1765), 3 Burr. 1663.

[4]Lord Hanworth, Life of Chief Baron Pollock, 198.

[5]When the Queen’s Bench in Fuller v. Wilson, 3 Q.B. 58, differed from the Exchequer of Pleas in Cornfoot v. Fowke (1840), 6 M. & W. 358, on the fundamental nature of deceit.

[6]It is still possible for the court of appeal to differ from the court of criminal appeal. See Jenks, Short History of English Law (1934), 419, 420.

[7]Cf. Lord Chorley, Conflict of Law and Commerce, Law Quarterly Review, xlviii. 51 at 63.