Front Page Titles (by Subject) Charles Howard McIlwain, MAGNA CARTA AND COMMON LAW. - Magna Carta Commemoration Essays
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Charles Howard McIlwain, MAGNA CARTA AND COMMON LAW. - Henry Elliot Malden, Magna Carta Commemoration Essays 
Magna Carta Commemoration Essays, edited by Henry Elliot Malden, M.A. with a Preface by the Rt. Hon. Viscount Bryce, O.M., Etc. For the Royal Historical Society, 1917.
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MAGNA CARTA AND COMMON LAW.
In estimating the importance of Magna Carta what we chiefly need is a history of the document in the period after 1215.1 One of the most significant points in that subsequent development is the famous confirmation by Edward I in 1297. This confirmation is in part as follows: “Know ye that we to the honour of God and of the holy Church, and to the profit of all our realm (‘et a profist de tout nostre roiaume’), have granted for us and our heirs, that the Great Charter of Liberties (‘le graunt chartre des fraunchises’) and the Charter of the Forest, which were made by common assent of all the realm (‘les queles feurent faites par commun assent de tout le roiaume’), in the time of King Henry our father, shall be kept in every point without breach (‘soient tenues en toutz leur pointz, saunz nul blemisement’). And we will that these same charters shall be sent under our seal to our justices, both to those of the forest and to the rest, and to all sheriffs of shires, and to all our other officers, and to all our cities throughout the realm, together with our writs in the which it shall be contained that they cause the aforesaid charters to be published and have it declared to the people that we have granted that they shall be observed in all points, and that our justices, sheriffs, mayors, and other officials who under us and by us have to administer the law of the land (‘qui la loy de la terre desoutz nous et par nous ount a guier’), shall allow the said charters in pleas before them and judgments in all their points; that is to say, the Great Charter of Liberties as common law, and the Charter of the Forest according to the Assize of the Forest, for the relief of our people. (‘c’est a savoir la grande chartre des franchises cume lay commune, e la chartre de la forest solom l’assise de la forest, al amendement de nostre poeple’).
“II. And we will that if any judgments be given from henceforth, contrary to the points of the charters aforesaid by justices or by any other our ministers that hold pleas before them touching the points of the charters, they shall be undone and holden for naught.
“(‘E volums qe si nuls jugementz soient donez desoremes encontre les pointz des chartres avauntdites, par justices et par nos autres ministres qui contre les pointz des chartres tenent plez devant eus, seient defaitz e pur nient tenuz’).
“III. And we will that the same charters shall be sent under our seal to cathedral churches throughout our realm, and there remain, and shall be read before the people twice in the year.
“IV. And that archbishops and bishops shall pronounce sentences of greater excommunication against all those that by word, deed, or counsel shall go against the aforesaid charters, or that in any point break or go against them. And that the said curses be twice a year denounced and published by the prelates aforesaid. And if the same prelates or any of them be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York for the time being, as is fitting, shall reprove them and constrain them to make that denunciation in form aforesaid.”1
Under the first of these sections the King’s justices are directed to administer Magna Carta “as common law” (“cume lay commune”). “The sense hereof,” says Coke, “is, that the Great Charter and the Charter of the Forest are to be holden for the Common Law, that is, the law common to all; and that both the charters are in amendment of the realm; that is to amend great mischiefs and inconveniences which oppressed the whole realm before the making of them.”2
This paper is an attempt to explain still further “the sense hereof”. But the most difficult part of the explanation as usual lies in that part of the provision whose meaning seems at first the most obvious—“lay commune”. “No tolerably prepared candidate in an English or American law school will hesitate to define an estate in fee simple,” says Sir Frederick Pollock. “On the other hand, the greater have been a lawyer’s opportunities of knowledge, and the more time he has given to the study of legal principles, the greater will be his hesitation in face of the apparently simple question, What is Law?”3 One’s opportunities of knowledge would have to be great indeed to be even in slight degree commensurate with his hesitation in attempting to define “common law” with all that it implied in 1297, but defined it must be in some fashion before we can understand the real significance of Magna Carta in the later Middle Ages. Some examination of contemporary records has convinced me that Coke’s interpretation is in the main the correct one, but one of his statements seems also to show that it is correct in a sense possibly somewhat different from the one he had in mind. This is his inclusion without comment of the Charter of the Forest with Magna Carta as the common law. What, then, is “the law common to all,” what made it “common” in 1297, how did this conception of a common law and the mass of corresponding rights actually come into existence, and finally what light is thrown by an explanation of these things upon the history and character of Magna Carta itself?
For a considerable part of the period when the common law was taking form in England there may be observed in the writers on law a certain struggle between the Roman idea of “lex” and the mediæval conception of law as immemorial usage. The judges of those times, who were generally in orders, were better acquainted with Roman legal conceptions than many of their brethren of a much later time. Their knowledge and reverence for these ideas, coupled with the necessity they were under of administering a law of a different origin, at a less advanced stage of development, but with roots so deep in the traditions and habits of the people that its binding force was unquestionable—these are the chief explanation of apparently incompatible statements concerning the basis and extent of the royal authority, which even the “addiciones” in a text like Bracton’s cannot wholly explain. In the field of private law somewhat the same struggle is to be seen between “lex” and “consuetudo”; the one a product of the classical period of Roman law, the other a growth of the Middle Ages out of roots that are quite different. The mediæval desire for unity led the jurists of the time to make interesting attempts to reconcile these conflicting conceptions. Constantine’s famous dictum, “Consuetudinis ususque longaevi non vilis auctoritas est,1 they gladly fasten upon, but it will not fully serve their needs until it is practically inverted.2 So the author of Glanvill feels it necessary to apologize to his learned readers for an English customary law which he never thinks of questioning.3 Glanvill is quoted word for word by the author of “Fleta,” but without acknowledgment.4 Bracton also begins his treatise with the usual liberal quotations from the “Institutes,” and borrows from Glanvill the sentence identifying “consuetudo” with “lex,” but his treatment of the subject is fuller and much more valuable.5 It is clear that these mediæval writers are faced with a “cousuetudo,” a “lex non scripta,” which is binding much as “lex” was binding in the later Roman Empire. In order then, to apply their favourite texts in support of the existing law, they are under the necessity of including within “lex” what was certainly not included in Justinian’s time. The outstanding fact is that custom had really become “law”. It was accepted by common usage “pro lege”. This is almost the central fact in early English law; but we moderns, like the Romans of the later Empire, are so prone to identify “lex” and “law” that we can hardly appreciate the difficulty in which Glanvill and Bracton found themselves. Glanvill’s apology for “consuetudo” was directed at the classicists, and is easily understood by ourselves; to a twelfth-century Englishman, if unlearned in Roman law, it probably had very little meaning.
But “consuetudo” was a thing well understood. Evidence of its importance and its binding character is abundant. Glanvill himself, in the passage quoted above,1 though he is paraphrasing the “Institutes,” cannot say, as they do, that in England the “law” is what the people, or what anyone, “constituebat”. Instead, he has to say that it consists of those things “quas super dubiis in consilio definiendis, procerum quidem consilio, et principio accedente authoritate, constat esse promulgatas”. It is something already in existence, which may indeed need defining, but can only be promulgated, not made. The celebrated Excommunication of 1253 mentions only those who violate the liberties of the Church, Magna Carta, the Charter of the Forest, “vel antiquas regni consuetudines approbatas”.1 It is not difficult to prove that these “ancient customs of the realm” were of binding force, even of supreme binding force. So the author of the “Mirror of Justices,” who may certainly be trusted as an interpreter of contemporary words and phrases, though we can no longer believe all his stories, declares that the article in the Statute of Marlborough concerning redisseisors is reprehensible, because “no special ordinance ought to exceed common law” (“car nul mandement especial ne deit passer comun dreit”).2 And we find the justices of both benches required to take oath that in case they receive letters from the King commanding anything “contrary to the law,” they will enforce the law not-withstanding such letters. The Parliament Roll of the year 13303 contains an interesting petition by several nobles setting forth that they were entitled to lands escheated at the time of the suppression of the Templars, which lands, however, had been handed over, by a statute irregularly procured by the Despencers, to the Hospitallers. They pray that this statute be annulled and quote the opinions of the judges against it—“Les dites Justices disoient appertement et expressement, qe le Roi ne ne devote ne ne le poiet faire par Ley; non pas pur ce les ditz Hugh et Hugh, par poair q’il avoient, firent fair un Statut, sicome piert par le Statut, Qe les Hospitaliers eussent les terres de Templiers. Et en lequel Estatute poet estre trowe, qe les Justices ne s’assentirent point; car ils ne poient pur lour serment par la disheritaunce du Roy et de ses gentz. Et disoient, qe ce sunt contrarie a Ley, isse qe cel Estatut se fist contre Ley et contre reson.” In 1341, during the struggle between Edward III and his Parliament, the King had been compelled to make certain important concessions in return for the parliamentary grants, but when these had to be put in the form of a statute, the chancellor, treasurer, and some of the justices protested that they would not enforce them “en cas qe meismes les Estatutz fussent contraires a les Leies et Usages du Roialme lesqueux ils feurent serementez de garder”.1 The reasons they assign are significant whether they were sincere or not. For the year 1347 there is a petition on the Parliament Roll against a judgment made in Parliament, which is declared to be “contre le Leis de Roialme et les Usages aprovez”.1 In 1397 Parliament annulled the award of Parliament convicting Hugh Despencer, and seemingly endorsed the charge that the Act of Edward III affirming this award “feust fait contre droit, loy, et reson...quel Estatut qant a les ditz articles n’est my droiturel ne resonable, ne deust estre de force par la ley...estoit encontre droit et reson et encontre la ley de la Terre”.2 Two years later, on the accession of Henry IV, the new King declared: “Qe il n’est pas son entente ne voluntee pur tourner les Leyes, Estatutz, ne bones Usages,...mes pur garder les anciens Leyes et Estatutz, ordeignez et usez en temps de ses nobles progenitours...solonc son serment “.1 The “Pronunciatio,” by which the Parliament of 1 Henry VI was opened, declares the purpose of the session to be the enjoyment by all classes of their liberties and franchises which have not been repealed “ne par la Communé leie repellables,”2 and the statutes of the next year open with a confirmation of all such franchises “bien usez et nient repellez ne par la commune ley repellablez”.3
Some of these examples undoubtedly arise out of factional and even revolutionary struggles, but the frequent and repeated insistence upon the supremacy of the common law, as a justification, even though it may be at times an unjust action that is justified, seems to show conclusively the position occupied by the common law. It was, in a very real sense, a fundamental law.
But if this law was really supreme it becomes the more necessary to try to discover the points in which it differed from other rules or enactments; to ascertain as nearly as we can just what was common law. From the passage quoted above from Bracton4 it appears that custom has the force of law in England, “approbata more utentium”; and that these “consuetudines” are either “plures et diversae,” i.e. particular customs; or common custom, which is “consuetudo regni Angliae”. Thus he speaks of the King’s retaining an outlaw’s lands for a year and a day, “sicut esse debet secundum consuetudinem regni nostri Angliae”;5 or of waste “contra consuetudinem regni nostri”;6 or of an inquest “secundum consuetudinem regni Angliae”.7 So he declares: “Et sicut papa ordinare potest in spiritualibus quoad ordines et dignitates, ita potest rex in temporalibus de haereditatibus dandis vel haeredibus constituendis secundum consuetudinem regni sui. Habet enim quodlibet regnum suas consuetudines et diversas, poterit enim una esse consuetudo in regno Angliae, et alia in regno Franciae quantum ad successiones.1 In Bracton’s day the organization and powers of Parliament were still undeveloped and the terminology of legislation was not yet fixed. His favourite term for enactments is “constitutio,” in which he shows his Roman and canon law training. He refers to the Statute of Merton as “Nova constitutio,”2 and to a violation of it as “fraus Constitutioni”.3 He says also that a writ of novel disseisin will not issue where a tenant has granted so much of his estate in frankalmoign that his lord had lost his service, “quia hoc est contra constitutionem”.4 In another place he asserts the same rule, “propter constitutionem libertatis”.5 These “constitutiones” are in addition to “consuetudines” which are in use throughout the realm. Hence many things are controlled by the law and custom of the realm. It is no accident that the writs appointing the justices for an assize of novel disseisin command them to do justice “secundum legem et consuetudinem regni nostri Angliae”.6 Judges are so to conduct themselves, says Bracton, “ut constitutiones et eorum edicta, juri et consuetudinibus approbatis, et communi utilitati sint convenientia.”1 These are the rules to which Bracton refers as “lex terrae et regni consuetudines,”2 and “jus commune”.3 Whether customary or statutory, it is the law common to the realm, as distinguished from particular law. So in discussing waste Bracton says: “Et quid debeat adjudicari ad vastum, et quid non, propter magnitudinem et parvitem, habet quaelibet patria suum modum, constitutionem et consuetudinem”.4 And modus, he says, following the familiar doctrine of the Roman lawyers, though in a sense probably never meant by them, and here speaking of grants, “legem dat donationi; et modus tenendus est contra jus commune, et contra legem, quia modus et conventio vincunt legem”.5 Of the law of succession he says: “Item poterit conditio impedire descensum ad proprios heredes, contra jus commune”.6
“And because it is given to all in common it is called common law,” says the author of the “Mirror of Justices,” of the law with which he deals.7 References to the common law became more frequent as the thirteenth century closed. For example, it is said to be “encontre la commune ley” for a subject to inflict the death penalty on a criminal.8 Later, in the reign of Richard II, the Commons complain of royal interference with “la ley de la Terre et commune Droit”.9
It is not necessary to multiply instances further, though they are many. The general connotation of “common law” is beyond doubt. Its exact meaning becomes clearer, however, when we take note of the special law that contemporaries were wont to contrast with it. At times we find “la commune Loy” thus designated to distinguish it from enactment.1 Or it might be the law of the Church that was contrasted with it;2 the “lex forestae”;3 “les Loys d’armes”4 the laws of the Court of the Constable and Marshal;5 the law of the staple;6 Roman law; or the “lex Parliamenti”.7
But the “special law” found most often in contrast with “ley commune” is the “consuetudo,” less frequently the “lex,” of some particular region or district, which differs in its provisions from the “lex et consuetudo regni”.1
In 2 Edward II it was argued that a manor which formed a part of the King’s ancient demesne was “tiel lieu qe n’est pas a la commune ley”.2 In a case in 1307 certain tenements were declared to be devisable “solom la coustume de Everwyk” (York).3
Cases of the law of Kent are numerous. For example it was said in the Common Pleas in 20 Edward I that certain tenements are not transferred from the common law to a special law (“changez hors de la commune ley en la Especial ley”) unless the partibility of the tenement could be proved. Here the “special law” is a customary one, “le usage du pays”.4 Wales and the Marches naturally give us many examples in the Middle Ages, particularly before the enactment of “Statutum Walliae”. For tenements in Wales and the Marches article fifty-six of the Great Charter of John guarantees to Welshmen and Marchers trial by peers “secundum legem Walliae” and “secundum legem Marchiae” respectively.1
In 25 Henry III a Welsh litigant pleads “quod nescit placitare secundum consuetudinem Anglie” and obtains a continuance “ad deliberandum”.2 In 1281 Edward promised Llewelyn that the laws of Wales and the Marches should not be disturbed, and informed him that the judges had been so instructed.3 The “Statutum Walliae” itself,4 while asserting Edward’s right to declare, interpret, increase, and take away from these particular laws, especially in pleas of the crown, expressly excepts the law of succession to lands, contracts, procedure, etc., which are to remain as they were, “quia aliter usitatum est in Wallia quam in Anglia...et a tempore cujus non extitit memoria”. In a case arising upon a disseisin in 19 Edward I, the defendant answers “quod tenementa non sunt in comitatu [Hereford] sed sunt in Marchia Wallie et debent in judicium deduci secundum legem Marchie et non per legem Anglie juxta statutum de Ronemede. Et quod non sunt in comitatu et ideo non deberent tractari per legem communem.” The point was conceded.5 Two years later Richard Fitz Alan declares he is a baron of Wales, “ubi est consuetudo approbata,” that the barons should submit their disputes to the arbitration of a friend of both parties.6 In 1321 a number of persons in Wales petition the Chancellor to issue a writ to the Justice of North Wales to do justice “secundum legem et consuetudinem parcium illarum”.7 The law of the Scottish March, of course, was on the same general basis. In 1249 a commission consisting of twelve English and twelve Scottish knights were sworn to the observance of the “Leges Marchiarum”.1
It seems clear, then, that common law is the “lex et consuetudo regni Angliae, usitae et approbatae, communi utilitati convenientes”; and that the basis of “consuetudo,” as of “lex,” is that it is approved, if not by express enactment, “more utentium”. This law is “common” because it is “jus regni Angliae,” enforced and observed “de consensu magnatum et reipublicae communi sponsione”. Special custom is such as in like manner “observatur in partibus”—and, it might be added, by certain classes or estates of the people—“ubi fuerit more utentium approbata, et vicem legis obtinet”; and special “leges” are those expressly assented to by the particular persons so bound by them. So we return to Coke’s dictum that the common law is “the law common to all”.2
If our difficulties ended here, it would seem rather unnecessary to labour a point so apparently obvious at such length as I have done. But Magna Carta was not only common law: it was also enactment, and constantly referred to as such. In order to understand its real significance, we must first examine the larger question of the relation of enactment in general to the “ley commune”; and to make this difficult question as clear as possible it seemed necessary as a preliminary to restate much that is obvious in connection with the common law itself.
The next problem that meets us, then, is the relation of enactment to the law, particularly the common law, in mediæval England, and this is a problem of great difficulty.
As indicated above, the names of enactments of law for the realm were variable until they became stereo typed by the general acceptance of Parliament’s enacting power. The author of the “Leges Henrici,” speaking probably of Henry I’s famous writ for the holding of the shire and hundred courts, says the practice, founded in ancient custom, had lately been confirmed by a record—“vera nuper est recordacione firmatum”.1 The Constitutions of Clarendon are spoken of in the preamble to the document as “ista recordatio vel recognitio cujusdam partis consuetudinum et libertatum et dignitatum” of the King’s predecessors.2 Similarly the Assize of Clarendon is termed “haec assisa,”3 as is also the Assize of the Forest in 1184.4 John’s Charter of Liberties itself is called “this present charter of ours”.5 Bracton speaks, as we have seen, of the Statute of Merton as “nova constitutio,”6 and elsewhere refers to a change in the law of dower made by it as brought about “nova superveniente gratia et provisione”.7 In a case in 43 Henry III one of its sections was referred to as “Provisio de Merton”.8 “The Edictum de Kenilworth’ is well known, and it was so called by contemporaries.9 The Statute of Winchester is cited by the author of the “Mirror of Justices” as “la constitucion de Wincestre”.10 In the reign of Henry III the word “statute” begins to be prominent; but at first hardly in any technical sense and alternative with other terms. For example, in 39 Henry III the statement is made that a rule in “consilio apud Merton provisum fuit et statutum,” concerning the procedure on a writ of right “post illam constitucionem”.1 So in 52 Henry III mention is made of the pardon for transgressors in the time of the recent war, “occasione provisionum seu statutorum Exoniae non observatorum”.2
By the time of Edward I, however, it is evident that “statute” is becoming a technical term, and the other names cease to be applied to the same enactments. So the author of the “Mirror” in the third chapter of his first book—“Des premiers constituciouns”—tells us that Alfred ordained “pur usage perpetuele” that his nobles should assemble at least twice a year “pur parlementer sur le guiement de people Dieu. Par cele estatut,” he says, divers ordinances were made in times subsequent.3 “The Statutum de Marleberge” is referred to in pleas of the fifth and sixth years of the reign.4 In Michaelmas Term, 13 & 14 Edw. I, judgment was given under a rule “quod constitutum fuit per Regem per secunda statuta Westmonasteriensia”.5
It is unnecessary to continue further a list which grows rapidly longer after this date. Statute has now become the usual word for a certain kind of enactments of Parliament, and it is sometimes applied to acts, such as the one known as “De Asportatis Religiosorum,” which are known to us only in forms not usual in statutes, some of them being found only in the form of writs.6 The uncertainty of some of these so-called statutes may be due to a looseness in the application of the term which disappeared later, when the word invariably conveyed one definite and technical meaning. “Statutum” seems to be a popular rather than a technical term before the reign of Edward I, and it is possible that the non-technical employment of it may have survived longer in isolated cases to the confusion of the modern historian.
Our real difficulty arises with the question, what was the real nature of these “statuta” after the meaning of the word had been fixed, and how did they differ, if at all, from the law that preceded them, and from enactments which were not termed statutes?
The subject of the relation of enactment to the law which precedes, as that relation was understood in the later Middle Ages, is a subject that has received a good deal of attention in recent years. We have passed beyond the naïve view that men of the Middle Ages must have understood that relation just as we understand it to-day. We are trying to discover what the men of that time really thought about it. For example, Mr. Lapsley’s view that the well-known declaration of Parliament in 1322, seeming to require the participation of all the estates of the realm in binding legislation, applied merely to such constitutional arrangements as had been effected by the ordinances of 1311;1 or Prof. Merriman’s interpretation of Parliament’s legislative functions as the repealing rather than the enacting of law.2
As an alternative interpretation I submit an explanation, which might be summarized as follows:—
First.—Enactments of substantive law in England in the later Middle Ages were made for the general purpose of affirming the law already approved or of removing abuses which hindered its due execution—“pur surement garder les Loies ove due execution et hastif remedie pur abusion de la Loye en usurpation”.1
Such affirmance implied frequent interpretation, the supplying of additional penalties to secure proper execution, and even supplemental enactments for the same purpose. This eventually led to changes in the law itself, but such changes came gradually and in the main only incidentally, and were not the main purpose of enactment. Repeal of the laws used and approved is in the beginning not thought of. It comes very gradually, and in the guise of the removal of provisions which have wrongfully interpreted or added to the old law and tended to the introduction of abuses rather than the removal of them. The substance of the old law itself is in theory not repealable, at least in early times. When statutes are repealed the oftrepeated reason is that they are against the law of the land or prerogative. Repeal is strictly in the beginning, nothing more than a remedy “pur abusion de la Loye en usurpation”. Occasionally, in times of disorder, whole Parliaments were repealed in the fourteenth and fifteenth centuries, but the reason alleged is usually that their summons is irregular or their acts unlawful. It is only at a comparatively late period that the repeal of statutes is openly avowed as one of the purposes of Parliament; even then such a power is hardly considered as reaching the central principles of the common law. On the contrary, an examination of parliamentary rolls of the fourteenth and fifteenth centuries will show that the first business of a Parliament is the re-enactment or affirmance of the whole body of the fundamental law, including the statutes of the King’s predecessors. This is nearly always stated among the purposes of the Parliament in the “Pronunciationes,” and it is almost invariably prayed for first among the petitions of the Commons. It would not be beyond the truth to say that in this period, Parliament was, in its “legislative” capacity, above anything else, an affirming body, for such affirmations en bloc are almost invariable.1 It is only in the latter part of this period that the Commons in their petition for the affirmance of preceding enactments begin to add the significant phrase, “et nient repellez”.2 There is a remarkable, and possibly not accidental, similarity between these repeated affirmations at the opening of each Parliament and the earlier proclamations of the King’s peace, at the beginning of each reign.
Second.—Participation in the enactment of such laws is based on the theory that the binding enactment of a law can be made only by those whom it touches. It must be a law “approbata utentium,” to use Bracton’s phrase.3 If an enactment is to bind the clergy, the clergy must assent; to one binding the baronage, the barons must assent; a provision affecting merchants only is binding on account of their consent alone; and the law of particular districts is recognized as valid “more approbata utentium”. But likewise, “what touches all should be approved by all“.1 And what touches all is the law common to all—the “lex communis, lex terrae, lex regni”.
On this basis of consent Glanvill had tried to fit feudal conditions into Roman terms, by saying that the people had enacted a law that had been “approved” by immemorial custom; much in the same way that Roman lawyers, ages before him, had interpreted the “uti legassit” of the Twelve Tables in the development of the law of testamentary succession. If this were true, it would not be absurd to assimilate English custom with Roman “lex”. It certainly was observed “pro lege”. All this is clear enough for local and particular customs. But what of the common law? How can it really be said to be enacted, affirmed, and “approbata utentium omnium”?
For much of the thirteenth century the baronage, lay and ecclesiastical, made good their claim that they alone were the “populus”; that “all” included none beyond themselves. “Populus” is frequently used in that sense at that time, and their assent seems to have been considered the assent of the realm. But by the fourteenth century this was changed. Other communes besides theirs were making themselves felt in the national councils, the “communitas bacheleriae Angliae”1 and the communities of the towns, who considered themselves a part of the “communitas Angliae”2 to which the “lex communis” applied. It is a striking fact that Edward’s principle that what touches all should be approved by all was carried no further than those communities until the Reform Bills of the nineteenth century. Those had a right to participate in the enactment of common law, to whom common law applied, and by the fourteenth century the communes of the counties and the towns were able successfully to vindicate in Parliament their claim to be a part of the “populus” to which that law and all provisions affirming it were common.
It is clear that such a principle could not be enforced, and could indeed hardly arise, before the composition of Parliament was settled on the basis which it retained until the legislation of the nineteenth century. Naturally, while that composition was still unsettled this principle was doubtful. Even if a law must be “utentium approbata,” how could the whole “communitas Angliae” consent in Parliament? At first, apparently, while the composition of Parliament fluctuated, there was doubt as to the validity of an enactment until it had been proclaimed locally throughout the realm. Only gradually did the theory arise that the whole of England was constructively in Parliament; that they were all assumed to be there consenting to what Parliament did. The theory of representation was complete in the fourteenth century. The fact that much of the representation was only “virtual” need give us little concern, when we remember that this remained equally true for five hundred years after, and that to a certain extent it is true to-day. This theory then did not necessarily give to the estates in Parliament alone the right to legislate for particular persons, classes, or places. That might be done by the King by charter or otherwise with the assent of those only who were affected. Neither did it require the assent of “all” the estates in Parliament unless that assent was given to some enactment which touched them all. The one thing that obviously did touch them all was an enactment affecting the “lex communis”. To that the assent of “all” was necessary.
Third.—This theory of the participation of the estates in enactment, if true, will in part explain the nature of the enactments of Parliament themselves. Statutes are enactments of law “perpetuelment a durer”. If this law happens to be “common,” then all must assent. But the real distinction between statute and ordinance, which gave Coke so much trouble, does not arise from the difference between enactments of common law and other enactments; nor from the fact that the King, Lords, and Commons must all unite upon a statute, while this is not necessary for an ordinance, as Coke thought. The real difference is that a statute, in its original meaning, is an affirmance of law. If it is in affirmance of the common law, it shares the nature of the law it interprets, and I have tried to show that one of the characteristics of that common law is its permanence and its supremacy in the realm. Like the law it authoritatively interprets, a statute in affirmance of the common law is permanent also; it has become in a sense a part of that law. Statutes affecting law other than common are for a long time less numerous and less important, and the name statute was probably applied to them later than to acts for the whole realm and on the analogy of the latter. But the essential characteristic in all cases seems to be the purpose on the part of those enacting that their work shall endure for all future time; a characteristic that parliamentary statutes were conceived to have, because their origin was traceable to the affirmance of a law that was permanent, extending “a tempore cujus non extitit memoria”. This theory is weakened somewhat in the fifteenth century, but it is safe to say that this is the general conception of parliamentary “legislation” from the thirteenth century on. Statutes are enactments “per-petuelment a durer”. It is their permanence that makes them “statutes,” and necessitates somewhat greater formality in their promulgation than is necessary in acts of a character less permanent and therefore less important.
Ordinances, on the other hand, are temporary provisions, which are not considered to affect the permanent law unless they are re-enacted “in form of a statute,” as they often were. The essence of a statute, then, is permanence, that of an ordinance is its temporary character. Statutes in affirmance of the common law had to be assented to by all; so had ordinances if they touched all the estates represented in Parliament. Both statutes and ordinances are found that touch fewer classes. When they are, only those classes so affected need assent in order to make them binding law for them. These distinctions, are, like the conception of affirmance, much clearer in the fourteenth century, than in the fifteenth; when many of the older ideas of Parliament’s functions are becoming blurred, and precedents are beginning to form which are later to furnish the basis for the modern theory of legislative sovereignty.
These are the three chief points which the contemporary records seem to me to indicate in regard to the nature of enactment. Before taking up their bearing on the history and nature of Magna Carta, I shall set forth a few of these records, under the three headings mentioned above; and first, under that of—
I. THE AFFIRMANCE OF COMMON LAW.
In this connection, nothing is more significant than the words of the preambles of Edward I’s two remarkable Statutes of Westminster, which, more than anything else he did, justify the application to him of the title the English Justinian.1 One statement in the preamble to the second statute is particularly interesting. It recites the fact that at Gloucester, in the sixth year of the reign, certain statutes had been passed, but that certain cases remained undetermined — “quidam casus in quibus lex deficiebat remanserunt non determinati, Quaedam enim ad reprimendum oppressionem populi remanserunt statuenda”. Hence the present statute. Commenting on this, the author of the “Mirror” says: “What is said in the second Statute of Westminster as to the failure of law in divers cases is open to objection, because for all trespasses there is law ordained though it may be disused, forgotten, or perverted by those who know it not. And the first three articles are no statutes, but merely revoke the errors of negligent judges.” The first of these three articles is the important enactment “De Donis Conditionalibus,” which certainly does do nothing but restore the law as it was before judicial decision modified it. In his biting comments on this and the other important enactments of the early part of Edward’s reign, the same author says, for example: one “is no statute, but the revocation of an error”; another “affirms, rather than repeals an error”; another, though it is “but common and ancient law,” gives insufficient remedy; another “is merely the revocation to right law of a prevailing error”; another “is a novelty injurious to the lords of fees”; another “seems rather error than law”; another, “no statute, but lawless will and pleasure”; another “is founded upon no right”; another is “not founded on law”; while others “are just humbug (truffe) for they are not regarded”. He also refers to Alfred’s laws as a “statute” under which “divers ordinances were made by divers kings down to the present time, which ordinances are disused by those who are less wise and because they are not put in writing and published in definite terms”.1
The form of the coronation oath, which remained with but few modifications until the accession of William and Mary, was probably used first at the coronation of Edward II. It was certainly used at the coronation of Henry IV.2 In it there is one promise that was not demanded before—“Concedis justas Leges et Consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas quas vulgus elegerit, secundum vires tuas. Respondebit, Concedo et promitto”. This is the oath so much referred to by the King and by Parliament in the fourteenth and fifteenth centuries, and its importance is very great in the history of enactment. The celebrated ordinances of 1312 provide that all the statutes made “en amendement de la lei et au profit du poeple” by the King’s ancestors, “soient gardez et maintenuz si avaut come estre devient par lei et reson,” provided they are not contrary to the Great Charter, the Charter of the Forest, or the present ordinances; and that if any statute were made “countre la fourme susdite, soit tenuz pur nul et tout outrement defait”.1 Two entries on the Parliament Roll for 1343 during the struggle of the King and Parliament are instructive on this point. It was agreed that the statute of two years before (15 Edw. III) “soit de tut repellez et anientez et perde noun d’Estatut, come cel q’est prejudiciel et contraire a Leys et Usages du Roialme et as Droitz et Prerogatives de nostre Seigneur le Roi”. But as there are certain articles embraced in the said statute which “sont resonables et acordantz a Lei et a Reson,” the King and his Council agree that these articles, together with others agreed upon in the present Parliament, “soit fait Estatut de novel” on the advice of the “Justicies et autres Sages, et tenuz a touz jours”.2 In the same Parliament the Commons pray that the statutes concerning grants be observed. The King replies that since he perceived that “le dit Estatut feust contre son serment et en blemissement de sa Corone et de sa Roialte, et contre la Ley de la terre en plusours pointz,” it should be repealed. But he wishes that the articles of the said statute be examined and that such as are found “honurables et profitables pur le Roi et son poeple soient ore faitz en novel Estatut, et gardez desore”.3
In 1347 the Commons petitioned that a plaintiff recovering damages on a writ of trespass should have execution on the defendant’s lands, but were answered by the King that this could not be done “sanz Estatut,” upon which he desires the advice of his Council, and will do what seems best “pur son poeple”.1 In 1348 the Commons prayed that the King would give no response changing their petitions as a result of any “Bill” presented in Parliament “in the name of the Commons”. By advice of the Prelates and “Grantz” the King replied to these petitions “touchantes la Lei de la terre, Qe le Leies eues et usees en temps passez, ne le Process d’icelle usez cea en arere, ne se purront changer saunz ent faire novel Estatut. A queu chose faire le Roi ne poait adonques, ne unquore poet entendre par certeines causes. Mes a plust tost q’il purra entendre,” he with his Council will ordain touching those articles and others “touchantz Amendement de Lei” according to reason and equity, for “all his lieges and subjects and for each of them”.2 A very important entry occurs in the roll for 25 Edward III, where the Parliament interprets the law of succession. “Nostre dit Seigneur le Roi veuilliant qe totes doutes et aweres fuissent oustes, et la Lei en ceo cas declare et mise en certeine, fist charger les Prelatz, Countes, Barons, et autres Sages de son Conseil, assemblez a ceo Parlement, a faire deliberation sur cel point. Lesqueux d’un assent ont dit, Qe le Lei de la Corone d’ Engleterre est, et ad este touz jours tiele....Laquele Lei nostre Seignur le Roi, les ditz Prelatz, Countes, Barons, et autres Grantz, et tote la Commune, assemblez el [en] dit Parlement, approevent et afferment pur touz jours”.3
For much of the fourteenth and fifteenth centuries the Parliaments are regularly opened by a “Pronunciatio”; such as the one which states, among the chief reasons for the summons, “qe l’Estatutz faitz cea en arer pur amendement des Leies de la terre et du people ne sont pas gardez ne usez en lour effect”;1 another, which urges that the good laws and customs be guarded and preserved and violators punished;2 another asking the Commons for information “coment ses Leyes de sa Terre et l’Estatutz sont gardez et executez”;3 or one which announces that it is the will of the King that the laws “serroient tenuz et gardez,” and promises that by letters under the secret seal or privy seal or otherwise, “la Commune Loie ne serroit destourbez, ne le poeple en lour pursuyte aucunement delaiez”.4 For the same period the petitions of the Commons usually begin with a prayer, such as the one in 1379, which asks, among other things, “that the common law of the land be held as used in the time of the King’s ancestors”.5
As seen in many of the instances given above, affirmance and interpretation often go together in re-enactments of the law, as well as supplementary provisions of great importance. But Bracton was expressing the conception of his time, in distinguishing what adds to the law from what is contrary to it: “Non destruitur quod in melius commutatur”6 . So, he says, a writ is quashed if “contra jus et regni consuetudinem et maxime contra chartam libertatis....Si autem praeter jus fuerit impetratum, dum tamen fuit rationi consonum et non juri contrarium, erit sustinendum, dum tamen a rege concessum et a consilio suo approbatum.”1 The general business of a Parliament was well stated in the “Pronunciatio” of the Parliament of 38 Edward III2 to be—“les Lois, Custumes, Estatutz, et Ordinances en son temps, et en temps de ses Auncestres faites, meintenir, et si nuls soient que busoignent declaration, ajoustement, ou artement, solonc le cas, temps, et necessite, ensement de lour bon avis et conseil declarer, ajouster, retrere, et amender”. The great importance of affirmance in enactment is also illustrated in the limits which were set to the King’s dispensing power. The one kind of statute with which he might not dispense, was the kind passed in affirmance of the law.3
It would be rash to say that the principle underlying the participation of the various classes “represented” in the English Parliament came entirely from feudalism. There are precedents in Rome, and precedents in England and on the Continent after the fall of the Roman Empire, of quite another kind. But these came to the men of the later Middle Ages through a feudal channel. To put it in another way, feudalism is the stage through which English institutions had passed and were still passing at the time when the common law was forming and the functions of Parliament developing, and the participation of the “estates” in “legislation” can no more be understood without taking this into account than can the existence of these estates themselves. Behind them all lies the “Curia” of the lord in which the laws of the fief are “found” and applied by all the tenants who owe suit there and have the corresponding right to be tried only by the “pares curtis”. The Court of the King was the “Curia Regis,” and the laws “found” there by its suitors were the “lex terrae”. But while tenants-in-chief alone might “find” those laws, they had not made them. For a long time the barons were able to make good their claim that they were the “populus,” and through that fiction might alone interpret and enforce the law, but this fiction never destroyed the underlying theory that law was approved “consensu omnium utentium,” and just so soon as other classes became strong enough they asserted their right to assent to enactments affecting themselves. Precedents might be found as early as the preamble to Alfred’s laws and the indefinite “right” of the people to ratify the “election” of a King, as it appears in the Norman period,1 a “right” to be traced back no doubt to much the same origin as the similar procedure in the choice of the Popes before the “constitution” of the Papacy was definitely formed; but it seems best to go back no further than the thirteenth century. A beginning might be made with the clear statement of Bracton who mentions the “leges Anglicanae et consuetudines...quae quidem cum fuerint approbatae consensu utentium, et sacramento regum confirmatae, mutari non poterunt nec destrui sine communi consensu et consilio eorum omnium, quorum consilio et consensu fuerunt promulgatae”.1 Enactment and interpretation by the King and his Curia are permissible without this “consilium omnium,” since they do not destroy, but only improve the law. In “melius tamen converti possunt, etiam sine eorum consensu, quia non destruitur quod in melius commutatur”. So also things “nova et inconsueta et quae prius usitata non fuerint in regno, si tamen similia evenerint, per simile judicentur....Si autem talia nunquam prius evenerint, et obscurum et difficile sit eorum judicium, tunc ponantur judicia in respectum usque ad magnum curiam, ut ibi per consilium curiae terminentur”. When, however, anything is enacted, it is “communi consensu omnium,” in theory, even though not in fact. We know that the barons alone enacted what Bracton calls “quaedam constitutio quae dicitur constitutio de Merton,” yet he says one of its articles “provisuum est et concessum ab omnibus“.2 The sentence of excommunication pronounced in 1253 against violators of Magna Carta, or the liberties of the Church, “vel antiquas regni consuetudines approbatas,” is followed by a ratification under the seal of the King and certain magnates, concluding with a warning, that if any additions are made to the document, “dominus Rex, et predicti magnates omnes, et communitas populi protestantur publice...quod in ea nunquam consenserunt nec consenciunt, set de plano eis contradicunt”.3 It seems pertinent in this connection also to refer again to the form of the coronation oath, which seems to date from 1307, under which the King promised to hold, protect, and strengthen the just laws and customs “quas vulgus elegerit”.1 The word “vulgus” was not used by accident—nor “elegerit” either. The “consensus omnium” includes theirs, in theory at least, even though it be often merely the tacit assent to immemorial custom.
Participation in grants need not detain us. The word “consuetudines,” customs, had in the Middle Ages, as it has now, a double meaning; and undoubtedly it was the desire for a larger participation in grants rather than in enactments that led to the application by Edward I to the “Magnum Concilium” in larger measure than before of the old principle that what touches all should be approved by all. The vindication of the right of consent to grants was understood and is understood now. For participation in “legislation” more proof is needed, but fortunately it exists.
For example, in 1364 the Rolls of Parliament refer to certain good purveyances and ordinances passed with assent of “Ducs, Countes, Barons, Nobles et Communes...et touz autres qe la chose touche“. Some of these are referred to later in the roll as ’Estatutz”.2
In 1354 the Commons complain of the ordinance of the Staple lately passed in the Council at Westminster. They insist that such matters can be determined only in Parliament because they really concern the King and all his people. They declare that they have inspected these provisions “et queles lour semblerent bones et profitables pur nostre Seigneur le Roi et tut son people, soient affermez en cest Parlement, et tenuz par Estatut a durer pur touz jours. A quelle priere le Roi et touz les Grantz s’acordent unement, issint totes foitz, qe si rien soit ajouster soit ajouste, ou qerien soit a ouster soit ouste en Parlement, quele heure qe mestier en serra, et nemye en autre manere.”1
In 1363 the rolls say, “Et issint le Parlement continue sur tretee de divers choses, touchantz si bien les Petitions baillez par les Communes et autres singulers persons come les Busoigues du Roy et son Roialme.”2
In 1371 the Commons recite the statute ordering “qe nul Justise par mandement de Grant ou Prive Seal ne lessera de faire commune Ley et Droit as parties”; and pray that it be observed, and “qe par comandement du Roi, ne prier des gentz prives, n’autres, la Commune Ley ne soit delaie ne bestourne”.3
In 51 Edward III the Commons petition not to be bound by any statute or ordinance made without their consent, and that statutes made in Parliament be annulled only there, “et ceo de commune assent du Parlement”. They pray more especially that they be not bound by any statute or ordinance granted on petition of the clergy to which they have not consented. “Ne qe voz dites Communes ne soient obligez par nulles Constitutions q’ils sont pur lour avantage sanz assent de voz dites Communes, Car eux ne veullent estre obligez a null de voz Estatutz ne Ordenances faitz sanz lour assent”. The response is, “Soit ceste matire declares en especial”; probably because it might be a nice question whether the matters objected to were not really things which touched only the clergy rather than “tut son people,” and therefore such as might rightly be determined without the Common’s assent.4
In the midst of the troubles of the year 1381 an interesting entry is found in the Rolls of Parliament. The Chancellor “en plein Parlement” asks the opinion “de toutz illeoques” on the repeal of the manumission recently granted to the serfs. To which the lords spiritual and temporal, the knights, citizens, and burghers, responded with one voice in favour of the repeal—“Adjoustant, qe tiele Manumission ou Franchise des Neifs ne ne poast estre fait sanz lour Assent q’ont le greindre interesse”.1
Eight years later the Commons petition that neither the Chancellor nor the Council, after the dissolution of Parliament, should make any ordinance “encontre la commune Ley, ne les aunciens Custumes de la Terre, et Estatutz devant ces hures ordeinez, ou a ordeigner en cest present Parlement: einz courge la commune Ley a tout le poeple universel“.2
The proclamations for the publication of statutes or of Magna Carta, and the “pronunciationes” and petitions in Parliament also furnish considerable general evidence on this point. In all these the matters upon which the whole Parliament has acted are expressly stated to be articles “pur le commun profit du peuple e du reaume,” as in the royal proclamation of the confirmation of Magna Carta in 1297;3 or a grant “a soen poeple pur le pru de soen roiaume,” in the “Articuli super Cartas” of 1300.4 So a mandate to the Justice of Chester, of 1275, orders him to publish in Chester certain provisions and statutes enacted by the magnates “for the good of the realm and for the relief of the people”.5 Such expressions are common later in the “pronunciations du Parlement,” but they are not found after Edward II’s reign in cases where the Commons have not assented. For example, in 1351 there is mention made of “l’Estatutz faitz...pur amendement des Leies de la terre et du poeple”;6 in 1378, of the good laws and customs of the realm;1 in 1397, “Loyes justes et honestes universelment, par queux si bien les grantes come les petitz deussent estre governez”. The King wishes to know if any of his subjects have been hindered in obtaining remedies “par la commune Ley, et sur ce estre conseillez par toutz les Estatz du Parlement, et ent faire bone et due remede en cest present Parlement”.2 In 1414 the King desires the preservation of “les bones Leies de sa Terre”; and also asks Parliament “pur faire autres Leies de novell, a l’aise et profit de ses lieges”.3 The language is somewhat different from what would have been thought of a century earlier, but the principle is the same.
The petitions of the Commons, like the “Pronunciationes” in the King’s name, seem to make this distinction also. In 1341 the Commons pray for the observance of Magna Carta and “des autres Ordinances e Statutz, faitz pur profit du commune poeple entendant les pointz de la dite Chartre, ensemblement od les autres perpetuelment a durer”.4 Again in 1368 they petition for the maintenance of the charters “e touz les Estatuz faitz devant ces hures pur profit de la Commune“.5 The next year they ask that the statutes be maintained, “si bien l’Estatut de la Foreste, come touz autres Estatutz, lesqueux deivent suffire a bon Governement s’ils soient bien gardez”.6
Very important is the careful answer of the Archbishop of Canterbury in 1399 to the prayer of the Commons to be excused from taking part in the judgments of Parliament.7 It is true, he says, as the Commons have set forth, that they need not take part in Parliament’s actions—“Sauve q’en Estatutz a faires, ou en Grantes e Subsides, ou tiels choses a faires pur commune profit du Roialme, le Roy voet avoir especialment leur advis e assent”.
This evidence of the necessity for the advice of the Commons on matters “pur commune profit” is supplemented by proof of the converse—that matters which were clearly not of this character, which affected particular classes only—needed no ratification by the Commons to make them binding law for those whom they did affect.
So we find a regulation of the Exception of Neifty by “le Conseil en Parlement” in 1347;1 and an “Accord” in 1331 by which the lords agree, “qe nul Grant de terre” will aid any robber, but give aid to the justices in punishing them.2
In 51 Edward III to a request of the Commons for an ordinance regarding foreign merchants, the King answers that he and the magnates will consider and ordain what is best.3
Matters specially affecting the clergy are among the most valuable on this point. In 1389 the two archbishops made a protestation in full Parliament that they do not assent to any statute of that Parliament “nunc noviter edito, nec antiquo pretenso innovato,” which is in restriction of “Potestas Apostolica” or the liberties of the Church.4
In 1397 the prelates protest that they cannot assent to any enactment of the King or the temporal lords touching the rights of the Pope. There is no mention of the Commons.5 The Commons had in fact petitioned that the King would, with the advice of such sages and worthies as he pleased, at the next Parliament ordain such changes in the Statute of Provisors as seemed reasonable and profitable in their discretion.1 In the same year a committee of Parliament, consisting of lords and knights, but commissioned “par vertue e auctorite du Parlement, de l’assent des Seigneurs Espirituels e Temporels,” annulled the Duke of Hereford’s patent.2
In 1433 the Commons prayed for a modification of the Statute of the Staple of Calais, and were answered that it should be done as they desired, “Savant toutz foitz au Roy, poair et auctoritee de modifier mesme l’Estatut quant luy plerra, par advys de son Counseil solonc ceo qe meulx luy semblera pur le profit du Roy, e du Roialme”.3
III. VARIETIES OF PARLIAMENTARY ENACTMENT.
Enactments of Parliament are referred to in contemporary official records under various names: “provisiones, etablissements (stabilimenta), constitutiones, accords, awards, ordinationes, statuta,” and a number of others. Most of the treatment of the points vital to this paper may be included, however, under the last two of these, and that treatment need not be very long, after the many excellent discussions of this subject from the seventeenth century to the present.4
The treatises referred to above quote or cite most of the important precedents in the Rolls of Parliament,1 and it would therefore be useless to give here more than a few of these.
In 1324 was passed the statute concerning the lands of the Templars, which was afterwards objected to as against law. The statute was made by the King and Magnates only, but it was declared to be “concordatum...provisum et statutum pro lege in hac parte perpetuo duratura”.2
Two years later the King replied to a petition of the Commons, that certain ordinances should be viewed and examined “et les bones soient mis en Estatut, et les autres soient oustez”.3
The Statute of Purveyors,4 passed by the King, Lords, and Commons, is followed by five additional articles which are to be in force without change until the next Parliament. Just following these articles there is a note on the Statute Roll—“Et memorandum quod in parliamento predicto concordatum fuit quod articuli predicti non tenerentur pro Statuto”.
Probably the most conclusive entry in the Rolls of Parliament occurs in 1340, where a committee is chosen consisting of knights and burgesses as well as lords, who are instructed to look over the records of that Parliament from day to day and cause “mettre en Estatut les pointz et les articles qe sont perpetuels. Lequel Estatut nostre Seignur le Roi, par assent des touz en dit Parlement esteantz, comanda de engrosser et ensealer et ferment garder par tut le Roialme d’Engleterre....Et sur les pointz et articles qe ne sont mye perpetuels, einz pur un temps, si ad nostre Seignur le Roi, par assent des Grantz et Communes, fait faire et ensealer ses Lettres Patentes....”1
In 15 Edward III an interesting case occurs. Apparently the previous petitions of Parliament had been assented to, but not authenticated as statutes by the Great Seal. Now, as a condition of the payment of an instalment of a previous grant, the demand is made that these be affirmed as granted by the King—“C’est assavoir, les pointz a durer par estatut et les autres par Chartre ou Patent, et liverez as Chivalers des Counteez sauz rien paier.”2 The word ordinance does not occur.
In 1344 the Commons pray that the “Provisions, Ordinances, and Accords” made in a previous Parliament “soient affermez par Estatut perpetuelment a durer”.3
In 1347 they petition that a provision already agreed on in Council without delay be made “selonc la fourme de l’Estatut,” and the King promises that that article and the points contained in it “soient tenuz et gardez en touz pointz, solonc la fourme d’Estatut ent fait”.4
The Statute of Provisors of 13505 cites Edward I’s Statute of Carlisle—“le quel Estatut tient touz jours sa force”.
A perfectly clear instance is found in 1354. William de Shareshull, the Chief Justice, announces among the causes of the summons, the permanent fixing of the Staple. The Council had made certain provisions or “ordinances” which had been published throughout the realm, and that Council had included prelates, lords, justices, serjeants, “and others of the Commune”. But now—“pur ceo qe nostre Seignur le Roi, et les autres, si bien Grantz come Communes qi lors estoient au dit Conseil, verroient qe la dite Estaple se tendroit et durroit perpetuelment es Roialme et terres avant ditz, si ad mesme nostre Seignur fait somondre son Parlement a ce jour de Lunedy, aufyn qe les Ordinances de la dite Etaple soient recites en meisme le Parlement, et si rien soit a adjouster q’il soit ajouste, et soit a durer perpetuelment come Estatut en Parlement”.1
Another case, equally important, is found in 1 Richard II.2 The Commons in that year prayed the King that the “petitions” of the recent Parliament which were “pur profit de son poeple” (no doubt to distinguish them from the “bills” presented by individuals)3 should be now shown to the Commons, and that such as had been assented to in the form “Le Roi le veet ““soit afferme pur Estatut; ce q’est dit as Communes touchant partie des dites Petitions qe ce ne fuist qe Ordenance et nemie Estatut, qe ceo puisse estre vieuwe et rehercee as Communes, et ceo qe resonable est qe y soit ordene pur Estatut.”
The next year the Commons pray that “bills” of private persons receive no response, but that their own petitions be answered, a remedy ordained before the dissolution of the Parliament, and upon that—“et sur ce—due Estatut soit fait en ce present Parlement, et enseale a demurrer en tout temps a venir”.1
In the third year of the same reign the Commons petition that an existing ordinance “soit mys en Estatut, en affirmance d’icelle”; and the King replied, “soit mesme l’Ordeinance...tenuz et gardez pur Estatut.”2
In 1399 mention is made of certain statutes “que semper ligarent donec auctoritate alicujus alterius Parliamenti fuerint specialiter revocata.”3
Many instances might be given to show that this distinction between statute and ordinance, apparently perfectly clear, as to form at least, in the time of Edward III, was becoming much less so in the fifteenth century.4
These illustrations seem to show that there was a double difference between a statute and an ordinance—a difference in subject matter, and one of form and effect. Statutes were, in the beginning, affirmances of the ancient law, other kinds of enactment were employed, for temporary administrative measures.
At the opening of Parliament, the whole body of the ancient customary law, together with the two charters and all previous statutes, was affirmed or confirmed. This was on the analogy of the earlier declarations of the King’s peace at the opening of a reign, and it is the nearest approach mediæval England shows toward a fundamental law. Before the days of modern written constitutions this was the most authoritative way in which a fundamental law could be promulgated.
After the affirmance, came, as indicated in the “pronunciationes,” the removal of abuses, or of enactments contrary to or impeding the execution of this fundamental law, and the enactment of legislation supplemental to it which might be of sufficient importance to be classed with that law itself and therefore put into a statute or statutes. As we have seen, one of the chief characteristics of the law so affirmed, interpreted, cleared, or improved, is its permanence. And the instances given above show clearly enough that the test of a statute is the question whether the enactment made by it is really incorporated into this law, along with it “perpetuelment a durer” and to be affirmed along with it in all subsequent Parliaments. The inference is clear, then, that in the beginning, probably all statutes were of this kind. But composed as they were of such subject matter, it is evident that their enactment is more important than other “acts” of a Parliament. As such, they required a different mode of authentication than less important acts. They were sealed with the Great Seal and engrossed upon the Statute Roll as a part of the permanent law, after which they were sent to the Chancery and the courts of the two benches, and also to Ireland and elsewhere in cases where this was necessary. Copies were also sent to the sheriffs of the counties, ordering their proclamation, preservation, and enforcement, within the counties.
This authentication was in the hands of the Council, consisting largely of the judges, or in special cases of a committee; who went over the Parliament Roll, during or after the Parliament; which led to many omissions and some changes and additions, sometimes complained of by the Commons. Ordinances, originally, as temporary law, were not affirmed generally at the opening of Parliament as the charters, ancient law, and previous statutes were. They also required a less formal mode of authentication than statutes. Without a formal engrossment they could be taken by the Council as the basis for royal writs, charters, or letters patent, by which they were published and their enforcement secured.
As time went on, the distinction between the subject matter of statutes and of ordinances became less marked. The difference came to be regarded more as a difference of form, though the real distinction did not disappear until the fifteenth century. Thus, in case of an enactment such as the ordinance concerning apparel in 37 Edward III, where the subject was new, there might be a question whether this was fundamental or not, and the Parliament was asked whether it preferred the form of a statute or of an ordinance—“s’ils voleient avoir les choses issint acordez mys par voie de Ordinance ou de Statuyt”. They answered that they preferred the form of an ordinance, in order that it might be changed if necessary at the next Parliament.1 In the fifteenth century the distinction seems to be largely disregarded, as temporary acts are termed indifferently statutes or ordinances. In the half century embraced by the reign of Edward III, however, when the original distinction is still clearly preserved, there seems no doubt that a perfectly well understood difference existed between a statute “perpetuelment a durer” and an ordinance “pur en temps”.
It would hardly have been necessary to enlarge so much on this point but for the evident confusion existing even in the minds of the latest writers on this important subject. Thus Sir William Anson says: The ordinance “is an act of the King or of the King in Council: it is temporary, and is revocable by the King or the King in Council. The Statute is the act of the Crown, Lords, and Commons; it is engrossed on the Statute Roll; it is meant to be a permanent addition to the law of the land; it can only be revoked by the same body that made it and in the same form.”1
He proceeds to prove this by an entry from the roll of 1340 which is certainly the clearest statement of the real difference to be found in the Rolls of Parliament.2 But an examination of it shows—and this is corroborated by dozens of other instances—that the ordinances in this case, as well as the statutes, were assented to by King, Lords, and Commons. It proves his statement that the statutes were permanent law and the ordinances temporary provisions; it expressly contradicts his other assertion that an ordinance is necessarily “an act of the King or of the King in Council” in distinction from a statute, to which the Commons’ assent must be added.
It is said in the excellent preface to Ruffhead’s edition of the statutes,3 that the real difference between the subject matter proper to a statute and to an ordinance lies in the distinction between ancient law and “novel ley”; which is undoubtedly true, but I think hardly in the sense in which Ruffhead meant it. He says many acts were not entered upon the Statute Roll, “For if the Bill did not demand ’Novel Ley,’ that is, if the Provision required would stand with the Laws in Force, and did not tend to change or alter any Statute then in being, in such Case the Law was compleat by the Royal Assent on the Parliament Roll, without any Entry on the Statute Roll: and Such Bills were usually termed Ordinances.” But the term “novel ley,” as used in the Rolls themselves and in the Year Books of the time, does not seem to mean new law so much as new enactment. Acts in affirmance are continually spoken of as “novel ley” in distinction to the ancient law lying behind it. And while the rest of his statement seems to be completely supported by the Rolls themselves, this assertion and his inference based upon it seem to go too far.
One more point in regard to enactment seems in need of explanation before we are in position to form a true estimate of Magna Carta at this time, and that is the legal necessity, and the legal effect, of the publication of statutes.
The sealing,1 engrossing,2 and publication,3 are the outward marks of an early statute. The procedure is so fully described in the introduction to the “Statutes of the Realm,”1 that it need not be repeated here. Their publication, however, was so important a part of the authentication of statutes in early times that a statute is usually referred to before the middle of the fourteenth century as “statutum editum” in a certain Parliament or year.2
The theory of “representation” is found surprisingly early in England, but so long as the composition of Parliament was uncertain, publication in the counties must have been of even greater importance than it was afterward. It is probable that some doubt existed in this period as to the reality of the assent “omnium utentium” unless a statute had been actually proclaimed locally throughout the realm.
This probability is strengthened by the cases where the King, who alone could give effect to an enactment, saw fit temporarily to suspend its operation. In the later Middle Ages there is considerable evidence of the existence of a suspending power on the part of the King, notwithstanding the summary dismissal of it as “pretended” by the Parliament in 1689.3
It seems certain, however, that when the composition of Parliament settled down into its final form, such doubts, if they existed, were swept away by the full acceptance of the theory that the whole body of the people were constructively in Parliament and therefore were bound by all its statutes on their mere enactment without publication, though the publication was actually continued until the invention of printing made it no longer necessary. This view was stated with vigour and clearness in 39 Edward III, in the case of Rex v. the Bishop of Chichester.1 The prosecution was under the Statute of Provisors, and Serjeant Cavendish, counsel for the Bishop set up as a part of his defence that this enactment was not binding because it had not been published in the counties. He was answered by Sir Robert Thorpe, the Chief Justice: “Granting that proclamation was not made in the county, nevertheless every one is considered to know what is done in Parliament: for so soon as Parliament has concluded anything, the law presumes that every person has notice of it; for the Parliament represents the body of all the Realm; wherefore it is not necessary to have proclamation where the statute took effect before”.
It now remains to apply these deductions to Magna Carta and to Edward I’s mandate requiring its enforcement by his judges, as common law.
John’s Charter was in form a royal grant guaranteeing rights almost all of which had already existed by feudal custom or otherwise. It was granted primarily to his tenants-in-chief and their “homines”. It was a feudal rather than a national document, and the grantees were probably then conceived to include none lower than “vavassores”.2 But the reign of Henry III was from the point of view of the development of institutions, almost a revolutionary epoch. The loss of Normandy and other influences brought about in this period a remarkable development of the idea of nationality, which is reflected in the growth of the National Assembly and in other respects.1 This influence can be seen in Magna Carta. In addition to the extension of John’s articles on the forest into a new, separate, and more detailed charter, Magna Carta itself was reissued three times, with new clauses, defining, interpreting, and enlarging some of the original articles of a permanent nature and omitting the parts obviously temporary. In addition, it was solemnly confirmed by an excommunication against all who should break or change it, and it was confirmed by the Statute of Marlborough. An examination of these documents and incidental inferences in other writings of this reign, official and non-official, leads to the conclusion that contemporary ideas of the nature of Magna Carta greatly changed during this period. It was now seen that this was more than a “carta libertatum”: it was a “carta libertatis”. Though originally granted only to feudal “homines,” it was now applied to all “liberi homines”: though “conceded” at first as by royal favour, in this period it comes to be regarded as a solemn affirmance of fundamental rights, guaranteed to all, and approved by all. For the year 1225 the Annals of Dunstaple, in speaking of the reissue of Magna Carta in that year, say, that in the “colloquium generale” in London, “Post multas vero sententiarum revolutiones, communiter placuit quod rex tam populo quam plebi libertates, prius ab eo puero concessas, jam major factus indulsit”.2
The sentence of excommunication in 1253 condemns all who shall violate, infringe, diminish, or change the rights of the Church, the ancient and approved customs of the realm, “et praecipue libertates et liberas consuetudines que in cartis communium libertatum et de foresta continentur”.1 Bracton calls the third reissue of Magna Carta “constitutio libertatis”2 or “constitutio” merely,3 and, as we have seen, Magna Carta is referred to officially in 19 Edward I as “statutum de Ronemede”.4 The author of the “Mirror of Justices” mentions it as “la constitution de la chartre des franchises”.5 By 1297 it has become “la graunt chartre des fraunchises d’Engleterre,” proclaimed “pur le commun profit du peuple e de reaume;6 or Magna Carta “domini Henrici quondam regis Anglie...de libertatibus Anglie”;7 though to Pope Clement V it is only “concessiones variae et iniquae”.8 By the time the word statute has come to have a definite meaning, we begin to find that term also applied to Magna Carta.9 In 15 Edward III the Commons strengthen one of their petitions by a reference to “les pointz de la Grande Chartre faitz par les nobles Rois et ses Progenitours, et les Grantz du Roialme sages et nobles adonques Pieres de la terre, et puis sovent confirmez de divers Rois; Et puis molt des autres Ordinances, e Statutz, faitz pur profit du commune poeple entendant les pointz de la dite Chartre, ensemblement od les autres perpetuelment a durer, sanz estre enfreintz sinoun par acorde et assent des Pieres de la terre, et ce en pleyn Parlement”.1 In 1432 the Commons appeal to “ye Statut of the Grete Chartre, confermed by diverse oder Statutes”.2
Thus it is clear that Magna Carta had come to be considered an enactment much in the original sense of a statute: in affirmance of ancient law. The quotation above from the roll of 15 Edward III brings this out clearly.3 It also shows that Magna Carta was regarded as common law, with its interpretations.
It is such statements as this that enable us to put Magna Carta in its true setting in the fourteenth century. But there is another phrase in the same quotation from the roll of 15 Edward III—“Et puis molt”. Magna Carta, while much the same in character as other statutes, in binding force is classed far above them. While it is said they may be changed in Parliament, this statement does not include Magna Carta itself. We shall see later that this distinction was constantly made. Magna Carta had, in fact, from the time of Henry III, been recognized as in some sense a law fundamental. Henry III’s reissue of 1225 was the form considered final. We have evidence of this as early as Bracton’s time. In a quotation given above, Bracton says a writ is to be quashed “si impetratum fuerit contra jus et regni consuetudinem et maxime contra chartam libertatis”.4
The author of the “Mirror,” in his fifth book, “De Abusions,” begins with Magna Carta, “cum la lei de ceste reaume fondee sur xl pointz de la grande chartre des fraunchises soit desuse dampnablement par les guiours de la lei e par estatuz pus fetez contraiauz a ascuns de ces poinz”.1 He then proceeds to enumerate the “defautes” of the various articles of the Charter, implying that they are in affirmance of the law (“fondie sur dreit”), though in some cases incomplete (“defectif”);2 but he has no doubt that they render invalid (“destrut”) any subsequent statute inconsistent with them.3 “And,” he declares, “what is said of this statute [Merton] is to be understood of all statutes made after the first making of the Great Charter in the time of Henry III, for it is not law that anyone should be punished for a single deed by imprisonment or any other corporal punishment, and in addition by a pecuniary punishment or ransom.”4
In 14 Edward I the sheriffs of London had been violating the article of Magna Carta guaranteeing judgment by peers. “Et justiciarii dicunt, quod Dominus Rex hoc nullo modo concedere, secundum Magnam Chartam Angliae, sed est ultra regiam potestatem et contra omnem justitiam,” etc.5
The so-called statute “De Tallagio non Concedendo” provides that if, against the ancient laws and liberties or against any article of Magna Carta, any statute had been published by the King or his predecessors, or any customs introduced, such statutes and customs “vacua et nulla sint in perpetuum”.6 We have seen that the confirmation which was actually enacted at that time declared null, not previous acts, but “jugementz donez desoremes”.7
The terms of the letters patent of confirmation in 1301 are very interesting. There it is declared that “si que statuta fuerint contraria dictis cartis vel alicui articulo in eisdem cartis contento, ea de communi consilio regni nostri modo debito emendentur vel eciam adnullentur”.1
The difference between this provision and that of the confirmation of 1297, as well as the possible relation of both to the provision in the so-called statute “De Tallagio non Concedendo,” is very significant.
By 1301 the normal way of obtaining the common counsel of the realm on the amendment or annulling of any law—the “modus debitus”—had certainly become an enactment by Parliament. An accord or judgment of Parliament was “le plus haute le plus solempne juggement de ceste terre”; an award, “fait en la plus haute place en le Roialme”.2 Whether, in dealing with Magna Carta, Parliament should act in its judicial capacity or in a legislative way by statute, no more effective sanction could be devised in those days. The confirmation of 1301 must be considered as an honest attempt to secure enforcement, in the most effective manner known, of the provisions of Magna Carta.
It would seem fair to say, then, that Magna Carta was considered a really “fundamental law”; and that the confirmation of 1301 first authorized the manner of confirming it which was regularly followed until all confirmations ceased.
After this confirmation no additions were made to the Charter, and it became the custom to confirm it as a matter of course at the beginning of each Parliament. This is as near to a fundamental law as the conceptions of mediæval Englishmen could reach. We should not expect to find more.
Parliament was not content in the years following merely to confirm Magna Carta: it occasionally declared in general terms that all inconsistent acts should be void. The famous ordinances of 1312 declared that any such acts “soit tenuz pur nul, e tout outrement defait”.1 In 1368, in response to the Commons’ petition, the King promised that the charters should be observed and that any statute passed “a contrarie soit tenu pur nul”.2 The statutes of that year add these words to the usual confirmation.3
In 1376 the Commons complain of infringements of Magna Carta “par sinistrers interpretations d’ascuns gentz de Loi,” and pray that it be observed, notwithstanding any statute, ordinance, or charter to the contrary.4 The same request was made in another Parliament in the same year.5 A similar one is found in 1379.6
In 1 Henry IV the Commons petition for the repeal of a statute of the King’s grandfather which they allege to be “expressement fait encontre la tenure e effect de la Grande Chartre”.7
In 1397 Parliament declared the “award” of Parliament against the Despencers void as against law, right, and reason, and against Magna Carta.8
In 1341 the Peers prayed that infringements of Magna Carta should be declared in Parliament, and “par les Pieres de la terre duement redrescez”.9
During the fourteenth and fifteenth centuries the practice continued of confirming Magna Carta, as is proved by both the Parliament and the Statute Roll; but it would serve no purpose to refer to any of these numerous confirmations, which are usually brief and stereotyped in form. The regularity of the practice was recognized in 1381 in a petition of the Commons praying, “since by the Great Charter it was ordained and affirmed “communement entouzautres Parlementz,” that law be not denied or sold to anyone, that therefore fees be no longer taken by the Chancellor for writs.1
The confirmations of these years vary in the comprehensiveness of their statements, but they almost invariably include Magna Carta, the Charter of the Forest, and former statutes. In the fifteenth century the reference to these statutes (but not to the charters) is usually limited by the phrase “et nient repellez”.
Sometimes the Commons try to go further than a mere confirmation. In 1341 they petitioned that all the great officers of the realm be sworn to observe Magna Carta and the other laws and statutes,2 that Magna Carta be publicly read and affirmed by oath, and that penalties be inflicted on sheriffs or other ministers of the King who failed to enforce its observance.3 In 1354 they petitioned for the reading of Magna Carta.4 In 1377, at the opening of the new reign, the Commons again asked that it be read in Parliament; and this was done.5 It was read again in the Parliament of 1380.6
Occasionally there is a demand that the Charter be not merely read, but officially interpreted.7 In 1377 this demand goes further. The Charter was not only to be read, but it was to be declared point by point by the members of the Continual Council with the advice of the judges and serjeants or others if necessary. The “pointz” so declared and amended were to be submitted to the Lords and Commons at the next Parliament, and then “estre encresceez e affermez pur Estatut s’il semble a eux q’il soit a faire; eiant regarde coment le Roi est chargee a son Coronement de tenir e garder la dite Chartre en touz ses pointz”. The King, in general terms, promised that it be read and observed, but ignored the request for interpretation.1
If space permitted, many instances might also be given of Parliament’s solicitude, not merely for general confirmations of the Charter, but also for the observance of its specific provisions by the courts.
Magna Carta, in the later Middle Ages, is looked upon and treated as an enactment in affirmance of fundamental common law, to be confirmed and observed as a part of that law; but undoubtedly all other enactments of such law are regarded as “puis molt”.
The evolution of a “constitutional law” in America has generally been considered by British writers as without precedent in earlier English institutions. Such a view is hardly supported by a study of those institutions in the Middle Ages, before the modern doctrine of the legislative sovereignty of Parliament had taken definite form.
But it seems hardly possible completely to identify the “fundamental law” of mediæval England with the usual modern forms of such a law. In fact the content of that law, of which Magna Carta is the best example, was not entirely nor mainly “constitutional”. “Rigid” constitutions are a development of modern times. To us it seems natural to place the framework of government in a class by itself. We think of it alone as the fundamental law. We go so far as to make of “fundamental” and “constitutional” practically equivalent terms. This was not done in mediæval England.
For the Englishmen of that day the “fundamental law” did indeed include the law of the Crown, but it included also the law of the realm, and the second bulked larger than the first. Even what we might be tempted to call “the law of the constitution,” was in those days what it still remains, in England and even in great measure in the United States, notwithstanding our written constitutions: “little else than a generalization of the rights which the Courts secure to individuals”.1
Though this be true, an added interest is undoubtedly given to a study of the earlier manifestations of the idea of a law fundamental by the growing tendency in certain quarters in England, arising out of the recent and almost revolutionary constitutional changes, to demand that the structure of the State be placed above and beyond the possibility of change by the ordinary law-making organ.
“Law Quarterly Review,” vol. xxi. p. 257.
“Statutes of the Realm,” i. 123; Bémont, “Chartes des Libertés Anglaises,” p. 96; Stubbs, “Select Charters” (ninth edition), p. 490; Blackstone, “Magna Carta,” lxxiv.
“2 Inst.” 526.
“A First Book of Jurisprudence,” p. 4.
“Code,” 8, 52, 2: “Consuetudinis ususque longaevi non vilis auctoritas est, verum non usque adeo sui valitura momento, ut aut rationem vincat aut legem”.
“Legum autem Romanorum non est vilis auctoritas, sed non adeo vim suam extendunt, ut usum vincant aut mores. Strenuus autem jurisperitus, sicubi casus emerserit, qui consuetudine feudi non sit comprehensus, absque calumnia uti poterit lege scripta.”—“Libri Feudorum,” Lib. ii. Tit. i.; Lehmann, “Das Langobardische Lehnrecht,” pp. 114–15. See the interesting commentary of Cujas on these two passages, in his edition, “De Feudis” (1566), pp. 72-4. For a modern discussion see Savigny, “System des Heutigen Römischen Rechts,” vol. i. chap. iii. section 25; also note ii. at the end of volume one.
The customary law, “consuetudo,” he also calls “jura regni,” but he will not admit a sharp distinction between it and “lex,” though it is mainly unwritten, for he is not ignorant of the popular origin of “lex” even in Rome—“Leges namque Anglicanas, licet non scriptas, Leges appellari non videtur absurdum (cum hoc ipsum lex sit, ’quod principi placet, legis habet vigorem’) eas scilicet, quas super dubiis in consilio definiendis, procerum quidem consilio, et principis accedente authoritate, constat esse promulgatas.”—“Tractatus de Legibus et Consuetudinibus Regni Angliae, Prologus.” Cf. Justinian, “Inst.” 1, 2, 3, with which Glanvill, in common with nearly all the mediæval English juristic writers, prefaces his treatise.
“Cum autem fere in omnibus regionibus utantur legibus et jure scripto, sola Anglia usa est in suis finibus jure non scripto et consuetudine. In ea quidem ex non scripto jus venit, quod usus comprobavit. Sed absurdum non erit leges Anglicanas (licet non scriptas) leges appellare, cum legis vigorem habeat quicquid de consilio et de consensu magnatum et reipublicae communi sponsione, authoritate regis sive principis praecedente, juste fuerit definitum et approbatum. Sunt autem in Anglia consuetudines plures et diversae, secundum diversitatem locorum. Habent enim Anglici plurima ex consuetudine, quae non habent ex lege; sicut in diversis comitatibus, civitatibus, burgis et villis, ubi semper inquirendum erit quae sit illius loci consuetudo, et qualiter utantur consuetudine qui consuetudines allegant” (folio 1 A).
P. 126, note 3.
Bémont, “Chartes des Libertés Anglaises,” p. 72.
Selden Society, vol. vii. 184.
“Rot. Parl.” ii. 41–42, no. 52.
“Rot. Parl.” ii. 131a, no. 42. For the controversy, see Stubbs, “Constitutional History,” ii. (fourth edition) pp. 407–10. Rymer gives one of the writs for the publication of this revocation, addressed to the Sheriff of Lincoln, dated 1 October, 1341 (“Foedera” (Record Commission) vol. ii. pt. ii. 1177). In it the King declares that since the provisions complained of “(quidam articuli) legibus et consuetudinibus regni nostri Angliae, ac juribus et praerogativis nostris regiis, expresse contrarii praetendantur per modum statuti per nos fuisse concessi”; therefore, “considerantes qualiter ad observationem et defensionem legum, consuetudinum, jurium et praerogativarum hujusmodi, astricti sumus vinculo juramenti,” he desires that the said statute be revoked, even though “dissimulavimus sicut oportuit et dictum praetensum statutum sigillari permissimus illa vice”. But he hastens to add—and this is also significant—“volentes tamen quod articuli, in dicto praetenso statuto contenti, qui per alia statuta nostra vel progenitorum nostrorum Regum Angliae sunt prius approbati, juxta formam dictorum statutorum, in omnibus, prout convenit, observentur”. By his own admission the King’s action seems to warrant Stubbs’s characterization of it as “a piece of atrocious duplicity,” but the reasons he finds necessary to assign for it are none the less instructive. This revocation was made, however, without consulting the Commons—“volentes ea...ad statum debitum revocare, super hoc cum comitibus et baronibus, ac peritis aliis, dicti regni nostri consilium habuimus et tractatum”;—and therefore, as an enactment of common law, had eventually to be put in form of a new statute with the assent of the lower house. This assent was not given until the next Parliament, which met in 1343, two years later. It is an assent only in form then, for the Commons were dissatisfied. They petitioned for the observance of recent statutes, especially for those made in return for their grants. The only satisfaction they got was the royal response. “Il plest au Roi qe les Estatuts soient veuz et examinez, et ceux qe sont d’amender soient amendez, et les bons estoisent en lour force.” In respect to the statute annulled two years before the King answered, “Le Roi nadgairs apperceivant qe le dit Estatut feust contre son Serement et en blemissement de sa Corone et sa Roialtee, et contre la Ley de la terre en plusours pointz, si fist repeller meisme l’Estatut. Mes il voet qe les pointz du dit Estatut soient examinez, et ceux qe serront trovez honurables et profitables pur le Roi et son people soient ore faitz en novel Estatut, et gardez desore.”;—“Rot. Parl.” ii. 139, nos. 1–4. No corresponding enactment is to be found on the Statute Roll of that year.
“Rot. Parl.” ii. 173, no. 65.
Ibid. iii. 367 A.
“Rot. Parl.” iii. 434, no. 108.
Ibid. iv. 169 B.
2 Hen. VI, cap. i.
Ante, p. 126, note 5.
Folio 129 B.
Ibid. 316 A.
Ibid. 307 A.
Folio 417 B. He here refers to the famous “nolumus”.
Ibid. 312 B.
Folios 29 A, 32 A.
Folio 169 B. By this “constitutio” Bracton means the provision which appeared first as article 39 of the second reissue of Magna Carta and was re-enacted as article 32 in the reissue of 1225: “Nullus liber homo de cetero det amplius alicui vel vendat de terra sua quam ut de residuo terrae suae possit sufficienter fieri domino feodi servitium ei debitum quod pertinet ad feodum illud”. He cites the case of Robert de Toteshall v. the Prior of Bricksite in 23 Henry III. This case is given in Bracton’s “Note Book,” No. 1248.
Folio 168 B.
Ibid. 110 B. He also speaks of a woman’s having a dower greater than is proper “secundum legem et consuetudinem regni” folio 314 A).
Folio 108 A.
Folios 17 B, 19 B.
Folio 316 B.
Ibid. 17 B.
Ibid. 19 B.
Selden Society, vol. vii. 5.
“Year Book,” 20 & 21 Edw. I (Rolls Series), p. 99.
“Rot. Parl.” iii. 23, no. 96 (1377).
Thus a litigant was told in I Edward II: “You are not aided by the common law nor by special law” (“par la commune ley ne par ley especial”).—“Year Book,” 1 & 2 Edw. II (Selden Society), p. 31. In the next year another was informed that he must rely either on common law or on special law (“par la commune ley ou par ley especial”. Variant: “par aunciene ley ou par novele ley”), and that neither the common law nor “la novelle ley” will help him.—Ibid. p. 60. In 1377 the Commons petitioned for the observance and confirmation of “la commune Loy et auxint les especialx Loys, Estatutz et Ordinances de la terre” made for the common profit and good governance of the realm in the times preceding.—“Rot. Parl.” iii. 6, no. 20.
In 1350 the King responded to a petition of the Commons against the extortion of the clergy in taking fees for proving wills, “Soit la Ley sur ceo use come devant, si bien la Ley de Seinte Eglise come la Ley de la terre.—“Rot. Parl.” ii. 230, No. 35.
See Mr. G. J. Turner’s introduction to “Select Pleas of the Forest” (Selden Society); Petit-Dutaillis, “Études Additionelles,” in Stubbs, “Constitutional History,” French translation, vol. ii.
The “Pronunciatio” of the Parliament in 2 Richard II, declares that “les Loys de la terre et les Loys d’armes doivent estre come relatives, l’une Loy tout dys aidant a l’autre en tous cas busoignables”.—“Rot. Parl.” iii. 33, no. 8.
Statute, 13 Rich. II, stat. i. cap. ii. confines his jurisdiction to cases not triable “par la commune ley du Roialme”.
The Statute of the Staple (27 Edw. III, stat. ii.) provides for the trial of merchants’ cases “solonc la leie de lestaple et nemie a la commune ley” (cap ii.). All things touching the staple in the staple towns were to be determined “par la lei marchant...et nemie par la commune lei de la terre, ne par usages des Citees Burghs nautres villes” (cap. viii.).
“Rot. Parl.” iii. 244, No. 7. In this Parliament the lords, both spiritual and temporal, claimed it as their privilege that all cases touching them “serroient demesnez, ajuggez, et discus par le cours de Parlement, et nemye par la Loy Civile, ne par la Commune Ley de la Terre, usez en aut res plus bas Courtes du Roialme”. See also ibid. iii. 236.
Much material is found in various volumes of the Selden Society Publications, such, for example, as the volumes edited by Miss Bateson on “Borough Customs”. Many local peculiarities in the towns affecting tenure have been collected in Hemmeon’s “Burgage Tenure in Mediæval England” (“Harvard Historical Studies,” no. xx.).
“Year Book” 2 & 3 Edw. II (Selden Society), p. 60.
Ibid. 33–35 Edw. I (Rolls Series), 457.
Ibid. 20 & 21 Edw. (Rolls Series), pp. 327, 329. See also Ibid. 33–35 Edw. I (Rolls Rolls), p. 351; also the so-called Statute de Praerogativa Regis (“Statutes of the Realm,” i. 227) cap. xviii. See further, Somner, Robinson, or Sandys on Gavelkind.
Stubbs “Select Charters” (ninth edition), p. 300.
“Abbreviatio Placitorum” (Record Commission), p. 108.
Rymer, “Foedera” (Record Commission), vol. i. part II, 593.
12 Edw. I
“Plac. Abb.” p. 286.
Ibid. p. 231.
“Rot. Parl.” i. 397, no. 59.
Nicholson, “Leges Marchiarum,” p. 1 et seq.
Ante, pp. 124–5.
Liebermann, “Gesetze der Angelsachsen,” i. 553.
Stubbs, “Select Charters” (ninth edition), p. 163.
Ibid. p. 173.
Ibid. p. 186.
Ibid. p. 292.
Ante, p. 132.
Folio, 96. See also Bracton’s “Note Book,” i. 89.
“Plac. Abb.” pp. 146–7.
Ibid. p. 187.
Selden Society, vol. vii. 48. See also ibid. p. 28; “Plac. Abb.” p. 171.
“Plac. Abb.” p. 144.
Ibid. p. 168.
Selden Society, vol. vii. 8.
“Plac. Abb.” p. 268.
Ibid. p. 209.
“De Asportatis Religiosorum” is referred to as “statutum” in 16 Edw. 11. “Plac. Abb.” p. 341. Examples in writ form are “Circumspecte Agatis, De Finibus Levatis,” etc. These and a number of others are in Latin, the language of royal writs, instead of French, which was becoming the usual medium of parliamentary enactment at this time.
“English Historical Review,” no. xxviii. p. 118 et seq. This view seems also to be accepted by Prof. Tout. The “Place of Edward II in English History,” pp. 150–1.
“Control by National Assemblies of the Repeal of Legislation in the Later Middle Ages,” “Mélanges d’Histoire offerts a M. Charles Bémont” (1913), p. 437 et seq.
“Pronunciatio” of the Parliament of 13 Henry IV (1411), “Rot. Parl.” iii. 647.
See “Rot. Parl.” iv. 130, no. 10.
For repeal, see “Rot. Parl.” iii. 352 A; ibid. pp. 425 A-B; 426 A, 442 A; stat. i. Hen. IV, cap. iii.; stat. ii. Hen. IV, cap. xiii.; ’Rot. Parl.” v. 374 A-B; stat. 39 Hen. VI, cap. i.; “Rot. Parl.” vi. 191 A. See also “4 Inst.” p. 52.
Ante, p. 126, note 5.
This famous sentence appeared in the writs of summons to the clergy for the model Parliament of 1295 (“Parl. Writs,” vol. i. p. 30). The writs begin as follows: “Sicut lex justissima, provida circumspectione sacrorum principum stabilita, hortatur et statuit ut quod omnes tangit ab omnibus approbetur, sic et nimis evidenter ut communibus periculis per remedia provisa communiter obvietur”. The “lex” here referred to is probably from Justinian’s “Code,” 5, 59, 5, where nothing of a political character is referred to, but only the common action of several “co-tutores” appointed under a will or otherwise. The original words are, “ut, quod omnes similiter tangit, ab omnibus comprobetur”. It is interesting to note that in the supplementary title “De Regula Juris” at the end of the “Sext,” published three years after Edward’s writs, in 1298, Boniface the Eighth includes this maxim as regula xxix., “Quod omnes tangit, debet ab omnibus approbari”.
“Annals of Burton,” p. 471, quoted in Stubbs. “Select Charters” (ninth edition), p. 331.
The enactments of the Statute of Westminster First (3 Edw. I, 1275) are said to be made because the King desired “to redress the state of the realm in such things as required amendment, for the common profit of holy Church and of the realm; and because the state of the holy Church had been evil kept, and the prelates and religious persons of the land grieved many ways and the people otherwise intreated than they ought to be, and the peace less kept and the laws used and the offenders less punished than they ought to be, by reason whereof the people of the land feared less to offend”.
Selden Society, vol. vii. 189, 8.
“Rot. Parl.” iii. 417 B. See also Legge, “English Coronation Records,” pp. xxvii, 88.
“Rot. Parl.” i. 285 A.
Ibid. ii. 139, no. 23.
Ibid. 139–40, no. 27.
“Rot. Parl.” ii. p. 166, no. 13.
Ibid. p. 203, no. 30.
Ibid. 231, no. 41. See also stat. 25 Edw. III, stat. i. In this connection the proceedings in Parliament leading up to the Statute of Provisors are also interesting. They are found in the same words, in both the Parliament Roll and the Statute Roll (“Rot. Parl.” ii. 232–3, stat. 25 Edw. III, stat. iv.).
Ibid. “Rot. Parl.” ii. 237 A.
3 Rich. II, ibid. iii. 71, no. 3.
13 Rich. II, ibid. 257, no. 1.
5 Hen. IV, ibid. p. 529 A.
Ibid. p. 80, no. 1; p. 321, no. 44, etc.
Folio 1 B. Mere interpretation, in the fourteenth century, belonged to the Council. When a solemn affirmance by “novel Estatut” was necessary in matters of common law, this could only be done in a Parliament of which the Commons were a part.
Folio 414 B.
“Rot. Parl.” ii. 283 A. See also, ibid. ii. 341, no. 119; ibid. iii. p. 43, no. 46; p. 97 B.
On this, it is unnecessary to do more than refer to a few of the chief authorities. E.g. Broom, “Constitutional Law” (second edition), p. 492 et seq.; Anson, “Law and Custom of the Constitution,” vol. i. (fourth edition), p. 326 et seq.; Maitland, “Constitutional History of England,” pp. 302–6; “Thomas v. Sorrell, Vaughan’s Reports,” p. 330; “Godden v. Hales,” “11 St. Tr.” 1165, with the various contemporary tracts appended to the report; W. Petyt, “Jus Parliamentarium”; Luders’s “Tracts,” Tract V.
See, for example, the brief but excellent reference to this as a precedent for later consent in legislation, in Pike, “Constitutional History of the House of Lords,” p. 310 et seq.
Folio 1 B.
Ibid. 227 A.
Bémont, “Chartes des Libertés Anglaises,” pp. 73–4.
Ante, p. 148.
“Rot. Parl.” ii. 284b–285, no. 9.
“Rot. Parl.” ii. 257, no. 16.
Ibid. 280, nos. 38–40.
Ibid. 308, no. 41.
Ibid. 368, nos. 44–6.
“Rot. Parl.” iii. 100, no. 13.
Ibid. p. 266, no. 30.
Bémont, “Chartes des Libertés Anglaises,” p. 82.
Ibid. p. 99.
“Calendar of Patent Rolls,” 1272–1281, p. 104.
“Rot. Parl.” ii. 237 A.
“Rot. Parl.” iii. 32 A.
Ibid. p. 347, A-B.
Ibid. iv. 15 B.
Ibid. ii. 128, no. 9.
Ibid. p. 295, no. 10.
Ibid. p. 300, no. 14.
Ibid. iii. 427, no. 79. See also ibid. p. 243 A; also the King’s answer to the famous petition of 1414 in which he promises that no enactment shall bind the Commons without their assent (“Rot. Parl.” iv. 22, no. 22).
Ibid. ii. 180 A–B.
Ibid. p. 62, no. 9.
Ibid. 367, no. 35.
Ibid. iii. 264, no. 24.
Ibid. p. 341, no. 22.
“Rot. Parl.” iii. p. 340, no. 21.
Ibid. 372, no. 87.
Ibid. iv. 454, no. 63. See also ibid. p. 490, No. 19.
See, among others, “4 Inst.” 25; Prynne, “Irenarches Redivivus; Animadversions on Coke’s Fourth Institute,” p. 13; Whitelocke, “Notes upon the King’s Writt,” chaps. xc., xcviii., xcix.; Ruffhead’s Preface to his edition of the statutes; Introduction by the Commissioners to the “Statutes of the Realm,” section v. (also reprinted in Cooper’s “Public Records,” i. 163 et seq.); Hargrave and Butler’s notes to “Coke on Littleton,” p. 159 B, note 292; Amos’s notes to Fortescue’s “De Laudibus Legum Angliae,” pp. 59–61; Gneist, “English Constitutional History” (English translation), ii. 22 et seq.; Maitland, “Constitutional History,” pp. 256–8; Hatschek, “Englisches Staatsrecht,” i. 114; Anson, “Law and Custom of the Constitution,” i. (fourth edition) 243–9.
See the treatises above mentioned, among which the Introduction to the “Statutes of the Realm” is the most important. It cites and analyses most of the entries in the Rolls of Parliament important for this subject.
17 Edw. II, stat. 3.
I Edw. III, “Rot. Parl,” ii. II, no. 3
10 Edw. III, stat. 2.
“Rot. Parl.” ii. 113, nos. 7, 8.
Ibid. p. 133, no. 61.
Ibid. 153, no. 33.
Ibid. p. 167, no. 22.
25 Edw. III, stat. 4.
“Rot. Parl.” ii. 254 A.
Ibid. iii. 17, no. 56.
“Bill” is the term generally used on the rolls for petitions urged by others than the Commons as a whole—“par diverses persones; Bille especialle de singuler persone”—and not “pur le commun profit du people e du reaume”. The Commons frequently show hostility to these. For references to such “billes,” see “Rot. Parl.” iii. 61, no. 28; ibid. pp. 105–6; ii. 360 A–B; iii. 60–1; ibid ii. 203, no. 30; p. 368, no. 46; iii. 321, no. 44. See also the Introduction to the “Statutes of the Realm” (reprinted in Cooper’s “Public Records” i. 171–2, note, with references there quoted). These are the origin of private bills. See further, Clifford, “History of Private Bill Legislation,” vol. i. chap. iii.
“Rot. Parl.” iii. 61, no. 28.
Ibid. p. 86, no. 46.
Ibid. p. 419, no. 34. See also generally, stat. 14 Edw. III, Stats. 1 and 4, 11 Rich. II, cap. 11; 4 Hen. VI, cap. 2; “Rot. Parl.” iii. 87, no. 50; ibid. p. 115, no. 74; ibid. p. 138, no. 34; ibid. p. 354, no, 32; ibid. iv. 128, A–B; ibid. p. 35, no. 12; stat. 21 Rich. II, cap. 12; stat. 1 Hen. VI, cap. 6; 18 Hen. VI, cap. 4, 13; 27 Hen. VI, cap. 5; 29 Hen. VI, cap. 2; “Rot. Parl.” iv. 327–8; ibid. p. 328, no. 29; ibid. iii. 580, no. 60.
For example, stat. 4 Hen. IV, cap. 35; 13 Hen. IV, cap. 2; 9 Hen. V, stat. 2; 8 Hen. VI, preamble; 20 Hen. VI, cap. 6; 29 Hen. VI, cap. 2; “Rot. Parl.” iv. 352, no. 48; ibid. p. 354 A; ibid. iii. 661, no. 34.
“Rot. Parl.” ii. 280, nos. 38–40.
Op. cit. i. pp. 241–3.
It is given above, pp. 161–2.
Sealing seemed to be necessary. See “Year Book” (Hilary Term), 8 Edw. II, pp. 264–5 (edition of 1678); “Rot. Parl.” ii. 113, nos. 7, 8.
For publication, see introduction to “Statutes of the Realm”; “2 Inst.” 526; “3 Inst.” 41; “4 Inst.” 26; “12 Rep.” p. 56. Instances are very frequent in contemporary records. The writs for publication are frequently found with the statutes in the modern printed collections, and a few of the early statutes are known only from these writs. See also, for example, “Calendar of Close Rolls,” 1234–1237, p. 353; ibid. 1302–1307, p. 396; “Calendar of Patent Rolls,” 1272–1281, p. 335; Rymer, “Foedera” (Record Commission) ii. pt. i. p. 275; pt. ii. PP. 745, 753, 828, 937; iii. pt. i. p. 272; “Placitorum Abbreviatio,” pp. 332, 339, 340–1, 348; stat. 23 Edw. III, cap. 7; stat. 34 Edw. III, preamble; stat. 7 Rich. II, cap. 6; “Rot. Parl.” ii. pp. 10; 62, no. 10; 113, nos. 7, 8; 254 A; iii. p. 370 A–B; 478, no. 114.
Section V, ii. 2.
For example, “Istud statutum [De Quo Warranto] fuit editum in Parliamento Regis...anno regni suo decimo octavo.”—“Plac. Abb.” p. 225 (Hilary Term, 19 Edw. I). See also ibid. 226, 321, 334; “Liber Albus” (Rolls Series), p. 441; Rymer, “Foedera” (Record Commission), vol. iii. pt. i. p. 217.
For example, “Rot. Parl.” i. 217 B (1306); stat. 43 Edw. III, cap. 2; stat. 9 Rich. II, cap. 1.
“Year Book,” Pasch. 39 Edw. III, p. 7. See also Coke’s commentary, “4 Inst.” p. 26.
I have treated this point more fully elsewhere. See “Due Process of Law in Magna Carta,” “Columbia Law Review,” January, 1914.
Powicke, “The Loss of Normandy,” particularly chap. x.
P. 93 (“Annales Monastici,” Rolls Series), quoted in Stubbs, “Select Charters” (ninth edition), pp. 322–3. With this compare the ratification of the sentence of excommunication in 1253, containing a protest against any additions to or changes in it, by the King, all the magnates, “et communitas populi” (Bémont, “Chartes,” p. 74). Also the writ of Edward I in 1297 ordering the publication of the Charter there declared to be made in “relevacionem omnium incolarum et populi regni nostri” (ibid. p. 92).
Bémont, “Chartes des Libertés Anglaises,” p. 72.
Folio 168 B.
Ibid. 169 B.
Ante, p. 136.
P. 151 (Selden Society).
Bémont, op. cit. pp. 82, 83. See also p. 99.
Ibid. pp. 90, 92; in the “inspeximus” of the same year.
Bull annulling the Charter in 1305, Bémont, “Chartes,” p. 110.
E.g. “Year Book,” 11 & 12 Edw. III, p. 63 (Rolls Series); “Rot. Parl.” ii. 265, No. 12, where Magna Carta and the Charter of the Forest are spoken of as “ditz Estatutz”; stat. 38 Edw. III, stat. i. mentions the two charters et “les autres Estatutz” faitz in past times. This expression is very common. See, for example, “Rot. Parl.” ii. 269; iii. 647 B; iv. 403, no. 36.
“Rot. Parl.” ii. 128, no. 9.
Ibid. iv. 403, no. 36.
Ante, p. 172.
Ante, p. 152.
P. 175 (Selden Society).
“Rot. Parl.” iv. p. 176.
Ibid. pp. 179, 180, 181, 199–200.
Ibid. p. 182.
“Liber Custumarum,” p. 410 (Rolls Series).
Bémont, “Chartes,” pp. 88–9.
Ante, p. 123.
Bémont, “Chartes,” p. 109.
“Rot. Parl.” ii. p. 24 A-B (1328).
“Rot. Parl.” i. 285, no. 31.
Ibid. ii. 295, no. 10.
Stat. 42 Edw. III, cap. I.
“Rot. Parl.” ii. 331 A.
Ibid. iii. 61, no. 27.
Ibid. 443 A.
Ibid. 365 A.
Ibid. ii. 127 B to 131.
“Rot. Parl.” iii. 116, no. 88.
Ibid. ii. 128, no. 10.
Ibid. 129, no. 20.
Ibid. p. 259, no. 28.
Stat. I Rich. II, cap. I.
“Rot. Parl.” iii. 88 A.
Ibid. i. 286, no. 38. See also ibid. ii. 7, nos. 1, 3.
“Rot. Parl.” iii. 15, nos. 44–5.
Dicey, “Law of the Constitution” (seventh edition), p. 196.