Front Page Titles (by Subject) I.: The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton 2 - The Story of the Law
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I.: The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton 2 - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton2
The period of the Norman kings is one of gradual growth. The Norman lawyers, building upon what they found, made no violent changes. The Conqueror, under the wise guidance of Lanfranc, made no attempt to change existing laws and customs. Beyond taking ecclesiastical matters out of the jurisdiction of the county court, and protecting his Norman followers by special laws and tribunals, his reign was occupied in establishing the king as the ultimate owner of the conquered land and in the division of the spoil. But even in that troubled time, one capable man rose to eminence as a lawyer. The Italian Lanfranc, Archbishop of Canterbury, learned in the civil law, by his study of Anglo-Saxon laws prevailed in the one great lawsuit of this reign. The Domesday Survey, which enumerated all the lands in England, and ascertained the status of each subject, and the ownership of the land with its burdens and the rents and the services due from tenants of the land, was probably superintended by this great lawyer.
William Rufus had for his chief minister a man whom the annalist calls “invictus causidicus,” an ever successful pleader. This Ranulf Flambard was learned in the civil and the canon law, and is the first of that long line of trained lawyers, whose duty it was to fill the royal treasury. He worked out the legal principles of relief and wardship. Ecclesiastic though he was, he laid his hands upon the broad lands of the church. All church lands held of the king devolved, upon the death of bishop or abbot, according to Ranulf, upon the king as feudal lord. The great revenue to be derived from farming out these lands was an obvious temptation, but Flambard devised a further improvement. Since the bishop or abbot could not be inducted into office without the king’s consent and the payment of a relief, the candidate for high clerical honors was compelled to wait a number of years before receiving his office and at the same time was compelled to pay an ample relief before he received investiture of the lands. It is needless to say that the monkish chroniclers have loaded Ranulf’s memory with a mass of obloquy.
In Rufus’ time an event occurred which every lawyer recalls with peculiar interest. The King contemplated a new palace at Westminster, but only that part of it which constitutes Westminster Hall was built. It is true that the Hall has been twice rebuilt, once in Henry III.’s reign, and again under Richard II., but the Hall itself, saving for its higher roof, its windows, and higher walls, is what it was when finished in 1099. In this Hall the courts of England were held for many centuries. As soon as the Court of Common Pleas was fixed in certo loco, it continuously sat there. Later the King’s Bench took a portion of it. At one end of the Hall was fixed the marble seat and table of the Chancellor, where his court was held. Thus it happened that for centuries the courts of England were in plain sight of each other. When Sir Thomas More was being inducted as chancellor under Henry VIII., he stopped in his progress to the marble chair and knelt to receive a blessing from his father, a judge sitting in the Common Pleas. There is but one other building in the world that offers such a flood of legal memories. The old Palais de Justice in Paris has been the scene of many a great legal controversy, but Westminster Hall has listened to the judgments of Pateshull and Raleigh and Hengham. Here Gascoigne, Fortescue, Brian, Littleton, Dyer, Coke and Bacon sat. Here Hale and Nottingham, Hardwicke and Mansfield did their work for jurisprudence. The great forensic contests of England, the arguments in the case of Ship-Money, the trial of the Seven Bishops, Erskine’s perfect oratory in Hardy’s case, and Brougham in the Queen’s case, are among the memories that make this solid Norman edifice to lawyers the most interesting spot in England.
In the reign of Henry I., a man splendidly educated for that time, surnamed Beauclerk, the Scholar, we begin to see the growing interest in the law. Wearied of the oppressions of the Conqueror and Rufus, men looked back to the good old times of the Saxon. The King had married a princess of the Saxon royal house. Himself a usurper he looked to his Saxon subjects for support. They won for Stephen the Battle of the Standard against the Scotch, celebrated by Cedric in Ivanhoe. In the Saxon enthusiasm a large crop of Saxon laws appeared, some of them actual translations from old laws, some of them palpable forgeries. The King even promised to restore the old local courts of the Saxons; had he done so, we should have had no common law. It was by this time apparent that the king’s court was supplanting the old tribunals. The great lawsuits, being among the magnates, necessarily came before the king’s courts. That court was stronger than any other, and suitors instinctively would turn to it. The criminal jurisdiction of the king’s court was growing. Its jurisdiction was extended to suitors in civil causes first as a matter of favor. The bishop had been taken out of the county court and given a separate jurisdiction in ecclesiastical matters, among which were numbered the administration of estates of decedents and matters of marriage and divorce. Now under Henry I. began the practice of sending trained lawyers throughout the realm to take pleas of the crown and to hear civil causes. At the same time Roger of Salisbury, who was the legal adviser of Henry I., developed the exchequer portion of the king’s court. A group of men, some of them trained lawyers, gathered in the exchequer tribunal. They did incidental justice in civil controversies and traveled the circuit. Indeed, Pulling in his “Order of the Coif” dates his first serjeant at law from 1117; but this must be a printer’s error. Otherwise, Pulling’s first serjeant is as wild a piece of history as Chief Justice Catlin’s descent from Lucius Sergius Catiline.
Besides Roger of Salisbury we know of one very celebrated lawyer in this reign—a man then renowned in the law, named Alberic de Vere. He is described by William of Malmesbury as causidicus and homo causarum varietatibus exercitatus. Where he gained his legal education is not known. He was a son of one of the Conqueror’s chief barons, the Count of Guynes, in Normandy. One of the chiefs of that house marched with Godfrey of Bouillon to the rescue of the Holy Sepulchre. The lists of the men who acted as judges in the king’s courts show the names of many well-known Norman families during this reign. The educated lawyers were generally churchmen, yet the Norman barons had a natural taste for litigation. After a hundred years, scions of the great houses were to become the trained lawyers of the profession; but at this time the ecclesiastics did most of the technical legal work. They issued the writs from the chancery; they were needed to keep whatever records were kept. Alberic de Vere was not an ecclesiastic like Roger or Nigel of Salisbury, yet he was high in the confidence of Henry I., who granted to him and his heirs the dignity of Lord Great Chamberlain of England—the only great office of state that by a regular course of inheritance has descended to its present holder.
When Henry I. died, the interregnum caused by the contest between Henry’s daughter Matilda and his nephew Stephen covered the land with misgovernment and oppression. Roger of Salisbury’s son, euphemistically called his nephew—and it was by no means an uncommon thing for bishops to have sons in those days—became chancellor, but he soon fell under the displeasure of King Stephen, and in consequence the aged Bishop Roger and his family received the harshest treatment. The churchmen complained of the King’s conduct, and a great council was called by the Bishop of Winchester to examine into the matter. King Stephen selected Alberic de Vere to represent him at the council. Alberic seems to have successfully defended the King, and either he or his son was rewarded with the earldom of Oxford.
Coke, following a saying of Fortescue, makes the quaint observation that “the blessing of Heaven specially descends upon the posterity of a great lawyer.” Certainly the high position of the posterity of Alberic de Vere may be adduced as proof of the saying. Earls of Oxford of the house of Vere were great figures in English history until after the Revolution of 1688. The third earl was one of the barons who extorted Magna Charta from King John. The well-known seal of the Earl of Oxford is on the charter. The next earl, who had as a younger son been brought up as a lawyer, was head of the Common Bench under Henry III. The seventh earl was in high command at Crecy under Edward III. and at Poitiers under the Black Prince. The ninth earl was a favorite of Richard II. and became Marquis of Dublin and Duke of Ireland. Although his honors were forfeited by Parliament, his uncle, another Alberic (or Aubrey) regained the earldom and the estates under Henry IV. The thirteenth earl was the chief of the party of the Red Rose and during the Yorkist reigns wandered over the continent. Scott’s romance, Anne of Geierstein, tells his story while in exile. He came back with Henry VII. and led the Lancastrians at the battle of Bosworth. The seventeenth earl, a courtier and poet, at the court of Elizabeth, did not disdain to introduce gloves and perfumes into England. When the eighteenth earl died without issue, a noted lawsuit ensued over the Oxford peerage; the judgment of Chief Justice Crewe3 is an oft quoted specimen of judicial eloquence:
“I have laboured to make a covenant with myself, that affection may not press upon judgment; for I suppose there is no man, that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it. And yet, Time hath his revolutions. There must be a period and an end of all temporal things—finis rerum—an end of names and dignities and whatsoever is terrene; and why not of De Vere? For, where is Bohun? Where’s Mowbray? Where’s Mortimer? Nay, which is more, and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality.”
But the end of the house was not yet. The nineteenth earl died on the continent while fighting for Protestantism. The twentieth earl, “the noblest subject in England,” man of loose morals though he was, was too much a Protestant to follow James II. in his attempt to restore Roman Catholicism. When this twentieth earl died, the male posterity of Aubrey de Vere was extinct; but his daughter and heiress, Diana, was married to Nell Gwynn’s son by Charles II., the Duke of St. Albans. This son had been given the name of Beauclerk, and until recently the name of this family was de Vere Beauclerk. Topham and Lady Di Beauclerk will be remembered as friends of Dr. Johnson. But the present holder of the title seems to wish to forget his name Beauclerk and is well content to be simply de Vere. Heraldry, which is called “the short-hand of history,” shows this descent in the coat of arms of the St. Albans family; in the first and fourth quarters are the royal arms, debruised by a baton sinister to show illegitimate descent, while in the second and third quarters is the ancient cognizance of the Earls of Oxford, indicating a marriage with the heiress of the Veres.
Another stout judicial baron of this time is Milo of Gloucester, whose estates enriched in after times the house of Bohun. His exploit in marching to the relief of the widow of Richard de Clare, besieged in her castle by the Welsh after the murder of her husband, may have furnished Sir Walter Scott with his story of “The Betrothed,” where he tells of the succor of the Lady Eveline Berenger in the Garde Doloreuse. In fact, if we may judge from Ivanhoe, Scott must have taken many of his names from the judicial barons. Fronteboeuf, Grantmesnil and Malvoisin are names on the rolls of the courts. Segrave, a noted lawyer in Henry III.’s reign, was, like Ivanhoe, a Saxon who attained high position.
In the reign of Henry II., who succeeded Stephen, we begin to get a glimpse of an organized legal profession. This king was a great organizer and lawyer. His statutes of novel disseisin and mort dancester, his assize utrum and of last presentment were drawn by lawyers. In his reign the royal inquisition took a great step toward the modern jury. All litigation about land was thrown into the king’s courts. Many new writs and forms of action were invented. A fixed court made up of trained lawyers sat at Westminster. At the same time the country was divided into circuits, itinerant justices traveled the circuit and adapted the county court to the regular progresses of the king’s judges. The grand jury was now brought into form, and all the important criminal business came before the royal justices.
In the king’s court Henry himself often sat. He is surrounded by his council, but every now and then he retires to consult with a special body. The judges take sides and on one occasion the King orders Geoffrey Ridel, who seems too zealous for one party, from the room. The King peruses the deeds and charters, and when certain charters are produced we hear him swearing that “by God’s eyes” they cost him dearly enough. On another occasion two charters of Edward the Confessor, wholly contradictory, are produced. The King, nonplussed, says: “I don’t know what to say, except that here is a pitched battle between deeds.”
Now began the keeping upon parchment of the records of cases. The best picture of a lawsuit in this reign is the extraordinary litigation of Richard de Anesty. He claimed certain lands as heir of his uncle. An illegitimate daughter of the uncle was in possession. The question was as to her legitimacy and that depended for solution upon the issue of marriage or no marriage. Richard begins by sending to the King in Normandy for a writ of mort dancester. Then the issue of marriage must be directed by writ from the king’s court to the ecclesiastical court. The war in France intervenes, and Richard follows the King to France for a writ to order the court Christian to proceed. Three times he appeared in the latter court. Then he appealed from that court to the Pope, and for this he needed the King’s license. Finally the Pope decided in his favor. Thereupon Richard came back and followed the King until two justices were sent to hear his case, and at last he had judgment. Everywhere he had lawyers in his pay. His friends and advocates, among them Glanville, appeared for him in the secular court. In the ecclesiastical courts and before the Pope he hired lawyers, who were canonists, some of them learned Italians. After many years he obtained his uncle’s lands; but by that time, as he pathetically writes, he had become a bankrupt.
There are noted names among the king’s judges in this reign. Richard Lucy, Henry of Essex, William Basset, and Reginald Warenne were among the judges who went the circuit. Roger Bigot and Walter Map, the satirist, were of the itinerant judges. Ranulf Glanville and the three famous clerks, Richard of Ilchester, John of Oxford, and Geoffrey Ridel, sat at Westminster. The zeal with which the Norman barons attended to their judicial duties is amazing. The list of judges is almost an index of the great baronage. Marshalls, Warennes, Bigots, Bohuns, Bassets, Lucys, Laceys, Arundels, Fitz Herveys, Mowbrays, Ardens, Bruces, de Burghs, Beaumonts, Beauchamps, Cantilupes, Cliffords, Clintons, Cobbehams, de Grays, de Spensers, Fitz Alans, de Clares, Berkeleys, Marmions, de Quinceys, Sackvilles and Zouches are all among the itinerant judges.
The lawyers of this reign include both priests and laymen. Here begin the serjeants at law. Of the thirteen whom Pulling ascribes to this reign, are Geoffrey Ridel and Hugh Murdac, both priests, and such names as Reginald Warenne, William Fitz Stephen, William Basset and Ranulf Glanville, all laymen. It is a matter worthy of notice that the date at which each of the thirteen serjeants received the degrees of the coif is the date at which he began service as a judge. It is probable that the “status et gradus servientis ad legem,” in the writ calling a serjeant, was merely a nomination of the man to be a king’s justice. The matter is too obscure to admit of positive statement. But there must have been some reason for the rule that obtained for so many centuries, that no man could become a judge until he had been called to the degree of serjeant.
The first name among these lawyers is Glanville’s. Whether he wrote our first law book, which is called Glanville, is sharply debated. But he was at any rate a great judge with considerable legal learning. He probably received his legal training in the exchequer. But he was no less a warrior. As sheriff of Yorkshire he gathered an army and defeated the Scottish King and took him prisoner. King Henry entrusted to Glanville the custody of his wife, Elinor, whom he guarded for sixteen years. When in 1179 most of the King’s justices were removed, Glanville was continued in office and took his place in the court at Westminster. In the next year he became Chief Justiciar. One slanderous story of his judicial conduct has come down to us, but it is no more than idle gossip. Under Richard the Lion Hearted, Glanville took the vow of a crusader and preceded King Richard to the Holy Land, where he died under the walls of Acre.
It may be that Glanville did not write the book that passes under his name. Perhaps Hubert Walter, his nephew, a learned civil lawyer, who became Archbishop of Canterbury, put it together. It shows traces of the Roman influence, and Glanville was no partisan of Rome. There is on record a writ of prohibition issued by Glanville against the Abbot of Battle. On the hearing Glanville said to the priests: “You monks turn your eyes to Rome alone, and Rome will one day destroy you.” The prophecy came true after three hundred years.
Far more noted in this reign is the name of Becket. He was a trained lawyer educated in the canon and the civil law at Paris. He may very well have devised some of Henry’s statutes upon legal procedure, while he was chancellor. In the struggle that went on between the warring jurisdictions of courts ecclesiastical and secular courts, he boldly espoused the clerical side. The Chief Justiciar before Glanville, Richard Lucy, drew up the constitutions of Clarendon, which defined the jurisdiction of the king’s courts over priests, and brought on the struggle between Henry II. and Becket. Lucy was twice excommunicated by Becket, but he does not appear to have been seriously affected; yet, singularly enough, at the end of his life, he founded an abbey and assuming the cowl of a monk retired to the cloister and passed his remaining years in the works of piety.
The King, astute lawyer that he was, fought the Archbishop with the very best weapons. The chronicler records that Henry II. kept in his pay a gang of “bellowing legists” (ecclesiastical lawyers) whom he “turned loose” whenever he was displeased at an Episcopal election. In his controversy with Becket, Henry used the expert clerks, John of Oxford, Richard of Ilchester, and Geoffrey Ridel. John received as his reward the see of Norwich, Geoffrey was made bishop of Ely. Both of them, priests though they were, admirably served their royal client. They represented the King upon appeals to the Pope. Becket used a weapon against them that would hardly be in the power of a modern chancellor. Both lawyers and judges were excommunicated by the sainted archbishop. But the curse of Heaven and the reprobation of the faithful did not avail. At last, the murder of Becket ended the controversy, and while the victory remained with the King, it gave to Becket the peculiar honor of being one of the only two English chancellors who are numbered as saints in the canon of the church.
When the Conqueror took the bishop out of the county court and established church tribunals for ecclesiastics (a step which was taken at the demand of the priests), it could not have been foreseen what a tremendous influence this regulation would exert upon the history of English law. Yet the struggle which soon began between these warring jurisdictions is probably the real reason why the Roman law exerted so little influence upon the common law or its procedure. At Oxford there was a school of the civil and the canon law. Ecclesiastics educated under that system were constantly filling high judicial positions, yet these men were all faithful to the king’s courts and hostile to the ecclesiastical procedure. Practically all the trained lawyers were priests, yet they uniformly upheld the English law. In after times the canon law was to mold the procedure in the chancery courts; but the secular courts were not affected. No doubt the rational conceptions learned by these ecclesiastical lawyers from the civil law had no little effect upon the substance of their decisions; but the Roman law never affected the secular courts’ procedure.
An interesting figure among clerical judges is that noted Abbot Samson of St. Edmund’s Bury, who was made one of Henry II.’s justices. The priestly chronicler records with pride that a rich suitor cursed a court where neither gold nor silver could confound an adversary. The same chronicler tells us that Osbert Fitz-Hervey, a serjeant at law, the ancestor of the Marquises of Bristol, who was twenty-five years a judge at Westminster, said: “That abbot is a shrewd fellow; if he goes on as he begins, he will cut out every lawyer of us.” In a case where the Abbot was a party, Jocelyn says that five of the assize (jury) came to the Abbot to learn how they should decide, meaning to receive money, but the Abbot would promise them nothing, and told them to decide according to their consciences. So they went away in great wrath and found a verdict against the abbey. The juror who regards his place as an opportunity for pecuniary profit seems to be as old as the common law.
The intractability of the academic theorist in the person of Walter Map, the celebrated writer, crops out in his judicial experience. He once went the circuit, but was not called upon the second time, since he insisted on excepting from his oath to do justice to all men, “Jews and white monks,” both of which classes he detested. So he went back to his more congenial work of denouncing the whole body of the clergy, from Pope to hedge priest, as all of them busy in the chase for gain. But while that work is forgotten, we still are delighted by his tales of King Arthur and his knights and table round.
Under Richard and John, sons of Henry II., the regular enrolled records of the courts begin. Soon two sets of records are developed, those of the regular tribunal sitting at Westminster and those made in the presence of the king. The first are the records of what became the court of Common Pleas, the second of what became the King’s Bench. In John’s reign and that of his son Henry III. the learned lay lawyer appears in increasing numbers. First among them is Geoffrey Fitz Peter, who appears in the famous scene in the first act of King John, where the Faulconbridge inheritance is in question. Shakespeare cites the oldest English case on the orthodox rule of the English law, pater quem nuptiae demonstrant. Chief Justice Hengham in the next reign cites this case in the Year Book. It is needless to say that if Shakespeare had had the legal knowledge which has been by some lawyers ascribed to him, he could never have made the flagrant errors as to procedure which are found in King John.
Geoffrey Fitz Peter was the son of an itinerant justice of Henry II.’s reign, who had well upheld the dignity of civil justice against the church tribunals. A certain canon of Bedford was convicted of manslaughter in a bishop’s court, and was sentenced merely to pay damages to the relatives of the deceased. In open court the judge denounced the canon as a murderer; the priest retorted with insulting words, whereupon the King ordered the priest indicted. Perhaps at this time contempts of court were not punished by the court itself in a summary way. Geoffrey Fitz Peter inherited from his father, the judge, large possessions. With his wife he obtained the title and part of the estates of the Mandeville Earls of Essex. He was a learned lawyer, if we may believe Matthew Paris. He made a ruling which probably had the most far-reaching effect of any judicial decision. The last Mandeville earl, when he found that death was approaching, attempted to atone for a somewhat oragious life by devising a large portion of his lands to the church. Fitz Peter as the husband of one of the co-heiresses was directly interested in the case. Yet he is said to have ruled that a will of lands was invalid. From that day to the passage of the Statute of Wills, a devise of lands was impossible, except by virtue of some local custom. And so it is to-day that the realty devolves upon the heir, the personalty upon the executor. Fitz Peter served as a justice itinerant; he was a serjeant at law and upon John’s accession became Chief Justiciar. He held the place of head of the law for fifteen years, and with Hubert Walter, the chancellor, was able to keep King John under some restraint. The King joyfully exclaimed when he heard of his death: “He has gone to join Hubert Walter in hell. Now, by the feet of God, I am, for the first time, king and lord of England.” John at once entered upon the course that brought him into conflict with his baronage and ended with Magna Charta.
The long reign of John’s son, Henry III., may fairly be claimed as the golden age of the common law. The regular succession of the judges is now settled. John had promised in Magna Charta that he would appoint as judges only those men who knew the law. The judges whom the rolls show as sitting at Westminster establish the character of the court. The judges are promoted in regular order. The head of the court during the first years of this reign was William, Earl of Arundel; then for two years it is Robert de Vere, Earl of Oxford; then for seven years Pateshull, who had been a puisne, was head of the court. He is succeeded by Multon, who served for a long term. Raleigh, the second man in the court, followed Multon. In regular order follow Robert de Lexington, Thurkelby, Henry de Bath, Preston, and Littlebury. Thus it appears that the character of this court, a tribunal filled with trained lawyers, has become fully established.
The Earl of Arundel, who was Henry III.’s Chief Justiciar, belongs to a legal family whose successive marriages with other great legal families form a curious study in history. In the days of Henry I. a certain William de Albini was the son of the king’s butler or pincerna. He married Queen Adeliza, the young widow of Henry I., and with her obtained the castle and earldom of Arundel, the only earldom by tenure. The heiress of the de Albinis in the time of Henry II. married the son of John Fitz Alan, a judge in the king’s court, and thus the earldom and castle of Arundel passed to the Fitz Alans. Later, in the time of Edward III., the then Earl of Arundel by marriage acquired the title of Earl of Surrey and the estates of the Norman family of Warenne, whose first chief was the companion of the Conqueror and one of his chief justiciars. The great Earl of Arundel, who went to the block in Richard II.’s time, was the head of this mighty house. Still later the heiress of the Arundels married the Howard Duke of Norfolk. Singularly enough the Howards were descended from William Howard, a celebrated English serjeant at law, who, when the Year Books open, was in large practice in the courts. He rose to the bench (though he was not, as his tombstone records, a chief justice). His descendant, Sir Robert Howard, married the heiress of the Mowbrays, who held the Earl Marshalship of England hereditary in the Marshals. The sons of the great regent William Marshal, Earl of Pembroke, dying without male heirs, the dignity passed by marriage to the Bigots, Earls of Norfolk. From them by a special deed of the lands under the then new statute De Donis, these estates and dignities became vested in Edward I.’s son, Thomas of Brotherton. His heiress married a Mowbray; the heiress of the Mowbrays married Sir Robert Howard; and when the Howards obtained by marriage the titles and estates of the Arundel family in the reign of Elizabeth, all these honors of Warennes, de Albinis, Fitz Alans, Plantagenets, and Mowbrays had become united in the Howards. Perhaps we may credit this remarkable acquisitiveness through judicious marriages to the legal strain in the Fitz Alan Howards. Not only the Duke of Norfolk, premier peer of England, but the Earl of Suffolk and Berkshire, the Earl of Effingham, the Earl of Carlisle, and Lords Howard de Walden and Howard of Glossop, thus represent to-day the serjeant at law of Edward I.’s reign.
To return to the judges of Henry III.’s reign. Two of them, Pateshull and Raleigh, have been canonized by Bracton’s treatise. Bracton cites these two judges’ decisions almost as his sole authority. Other well-known judges of the time he notices merely to remark that they committed error—not by any means a failing confined to mediaeval judges. The greatest of these lawyers, Martin de Pateshull, was a priest—as was indeed Raleigh also, and Bracton himself. Pateshull’s origin was humble, but he became a justice itinerant in John’s reign and for many years he vigorously performed his duties. One of his brother justices in a letter to the King plaintively begs to be excused from going the York circuit, “for,” he says, “the said Martin is strong and in his labor so sedulous and practiced that all his fellows, especially William Raleigh, and the writer, are overpowered by the work of Pateshull, who labors every day from sunrise until night.” The Raleigh just spoken of was Bracton’s master. He managed to survive Pateshull, and succeeded him as head of the court. He first served as Pateshull’s clerk; his high character is shown by his election over the King’s uncle to the rich see of Winchester. Raleigh was ingenious in devising many new writs, and his name is of frequent occurrence in the Register of Writs.
The bravery of these judges in the performance of their duties is shown by a characteristic story. Fawkes de Breauté, a powerful baron and noted swashbuckler of the time, had so oppressed his neighbors that they proceeded against him in the king’s court. Three judges, Pateshull, Multon and Braybroc, went up from London to try the cases at Dunstable. Thirty verdicts were found against Fawkes and large fines imposed in all the cases. He was so incensed that he sent his followers under his brother’s leadership to seize the judges. He captured and imprisoned one of the court; but this conduct called out the royal power, then wielded by Hubert de Burgh. The brother and thirty of Fawkes’ retainers were hanged, but he himself escaped to lifelong exile.
Other judges like Hubert de Burgh, Thomas de Multon, Hugh Bigot, Earl of Norfolk, Humphrey de Bohun, Earl of Hereford, must be passed over. But Robert de Bruce deserves more than a passing mention. The first Robert de Bruce had come over with the Conqueror and had received ninety-four lordships as his share of the spoil. A cadet of the house, a grandson of the first Robert, had gone to the court of the Scottish King and had married the heiress of the lordship of Annandale. The fourth Robert in Scotland was Robert the Noble, lord of Annandale, the husband of a daughter of Prince David (the Knight of the Leopard in Scott’s Talisman).
The fifth Robert, a son of the princess, though a Scotch magnate, was educated for the law at Oxford. He practiced in Westminster Hall. He became Chief Justice and held the office until Henry III.’s death. Edward I. passed him by, and he retired in disgust to Scotland. But when the daughter of Alexander III. of Scotland died, the heirs to the throne were the descendants of Prince David’s daughters. This Robert, the Chief Justice, preferred his claim. He argued his own case before Edward I., the referee, but the decision on good legal grounds was given for John Balliol. But Robert’s grandson, another Robert, the national hero of Scotland, made good his title at Bannockburn.
Other judges of this reign are interesting figures—like the Percy, whose family is the one so celebrated in ballad and story as the Percys of Northumberland, or like Gilbert Talbot, who married a Welsh princess, and whose descendant was the stout warrior John Talbot, the first of the Earls of Shrewsbury, among whose descendants appeared Lord Chancellor Talbot in the reign of George II. But the real lawyer of this reign is the man whom we know as Bracton. His book on the laws and customs of England is the finest production of the golden age of the common law. Bracton’s father was vicar of the church at Bratton, of which Raleigh was the rector. The rector took an interest in the boy. There is a tradition that he put him to school at Oxford. When Raleigh became a judge, he made Bracton a clerk. In due time Bracton was promoted to a justiceship in eyre, when he became in 1245 a serjeant at law. From 1245 to 1265 he traveled the circuit, but part of that period he sat at Westminster with Henry de Bath, Thurkelby and Preston. During this time he made a large collection of precedents (known as his Note-Book) out of the decisions of Pateshull and Raleigh. A fortunate inference by Vinogradoff, confirmed by the lamented Maitland, has identified this collection of precedents with a manuscript in the British Museum, and the work of Bracton, long considered a mere attempt to apply the civil law to our common law, has been shown to be a careful statement of the decisions of the notable judges, who preceded him.
That the general conceptions, the arrangement, and the classification of Bracton’s work should have been taken from a writer on the civil law is not at all strange. There was no other source to consult. The Roman and the canon law had been taught by Vacarius in England, and he had written a book for his students. Manuscripts of the Roman law no doubt were brought to England. The flourishing school “utriusque juris” at Oxford must have had many scholars. Ricardus Anglicus, an Englishman, gained celebrity in the law in Italy. Italian lawyers came to England, and the King had in his service the renowned Hostiensis. Simon Normannus, Odo de Kilkenny, Roger de Cantilupe, and Alexander Saecularis belonged to this band of “Romish footed” legists of the King. English students went to Bologna and studied under Azo, “lord of all the lords of law.” Azo’s book Bracton had constantly with him as he was writing his “De Legibus et Consuetudinibus Angliae.” Yet the substance of Bracton’s book is a careful statement of the actual law administered by the courts. A priest himself, he everywhere shows his loyalty to the secular tribunals. Like Henry de Bath, he was dismissed from the king’s court on account of his leanings toward the party of the barons; yet he continued a justice in eyre. The barons at one time sent him on a judicial errand to redress grievances. Perhaps Bracton had felt the rough edge of the King’s tongue. We are told that to William of York, a distinguished predecessor of Bracton, the King said: “I raised you from the depths, you were the scribbler of my writs, a justice and a hireling.” Bracton well knew the great patriot Simon de Montfort, and no doubt sympathized with his cause. We know not what he was doing when the Barons’ War was raging, but it is probable that he was quietly attending to his judicial duties.
In Bracton’s book we find that the rules of law are fixed and settled. They bind even the king. The sympathies of Bracton with the party of freedom and progress here and there appear. “While the king does justice,” says Bracton, “he is the vicegerent of the Eternal King, but when he declines to injustice, he is the minister of the devil.” He had a noble ideal of the office of the lawyer and the judge. Using the phrase of the Digest he says of his profession, namque justitiam colimus et sacra jura ministramus, “We are the ministers at the altar of justice and feed its sacred flame.”4
The greatness of Bracton’s work is best proven by the reflection that five centuries were to pass away before another English lawyer, in the person of Blackstone, was to appear, competent to write a treatise upon the whole subject of English law. Fortescue’s De Laudibus is a panegyric, Littleton’s Tenures covers a small field, Coke’s Institutes are so poorly arranged and badly written as to be unfit to rank with the clear, precise, and flowing language of Bracton or of Blackstone.
The long period from the Conquest in 1066 to Bracton’s death in 1267 had been a period of marvelous growth. It began with a varied assortment of local courts lacking settled rules, and ends with a highly organized system of courts administering a settled and rational system of law. It begins with a barbarous procedure, and ends with a rationalized method of ascertaining the facts. In the criminal law it begins with a system where the criminal makes redress to the injured party or his kin, it ends in a direct punishment of crime for the benefit of the whole society. Succeeding ages have merely amplified and glossed the distinctive rules of Bracton. The common law by its very form was made capable of indefinite expansion.
In addition, the general progression of the justices, holding the assizes through the different counties, distributed the royal justice throughout the country. The different local tribunals were subjected to a close scrutiny. In fact, the holding of an eyre was regarded by the inhabitants rather as an oppressive thing. The justices inquired into all the affairs of the counties and into all the acts of the local tribunals, into the enforcement of the criminal law and into the judgments rendered in civil causes. The numerous fines imposed made royal justice the source of an imposing revenue.
About this time the clergy were forbidden by the Pope to study the temporal law, and were inhibited from sitting in lay tribunals. The lawyer ecclesiastics, like Raleigh, Pateshull, William of York, Robert de Lexington, and Bracton, were soon to pass away. While ecclesiastical chancellors remained for centuries, the common law was about to become the heritage of laymen. The lay lawyers are learned men. Fitz Peter, Segrave, Braybroc, Multon and Thurkelby are all cases in point. But the most noticeable thing is that a class of advocates, who practice in the courts, has grown up, and that the judges are uniformly selected from among the profession. The serjeants at law and the apprentices at law now form a distinct body of men, devoting themselves solely to the practice. This separate class needed but schools of law to make it a closed body of men, admission to which required special attainments. This want was soon to be supplied by the Inns of Court, where the common law was taught as at a university. Everywhere the need of retaining good lawyers was felt. This is enforced by the judges. In one of the first Year Books, the reporter makes the Chief Justice say: “B loses his money because he hadn’t a good lawyer.” A few remarks of this sort from the bench would soon prevent an appearance in court by any one except a trained lawyer.
The division of the profession into barristers and attorneys had already appeared—a distinction that endures to our own day in England.5 The barrister appears only for a client already present in court by himself or by an attorney. The effect of this division in the profession may be indicated in a later place. At present it is enough to note the influence that is bound to be exerted by the body of professional lawyers. Their judgment upon legal matters is sure to be of controlling importance, and their influence upon the selection of judges has invariably caused in England the promotion to judgeships of men who have proved their ability by the attainment of leadership in the practice. The great advantage of appointive judges over elective is that the influence of professional opinion can be more easily brought to bear upon the appointing power than upon an untutored electorate.
But the growing power of Parliament was making itself felt upon the growth of the law. Perhaps the conservatism of the profession assisted. It was now no longer possible to devise new writs to meet new conditions and to offer new remedies. Parliament was insisting that the grant of new writs and the creation of new remedies was the making of new laws, a power which belonged to the nation’s representatives in Parliament. Thus the growth of the law was hindered by the growth of representative government. The English law is now ready to enter upon its second period, which began with the legislative activity of Edward I.’s reign.
The peculiar feature of the development of the common law is that its moving force did not come from the mass of the people, but was imposed upon a population constantly demanding a return to old and barbarous methods. The universal jurisdiction of the king’s courts, the most valuable institution in the history of the law, was looked upon with the greatest jealousy. The extinction of the old ordeals—a measure which began with the sneers of William Rufus and was finished under John—was not demanded by any large portion of the nation. The palladium of our liberties, that jury which grew out of the royal inquisition, was wholly foreign to the English race, and was imposed upon the nation by the Norman and Angevin kings. The grand jury in its inception was to most of the people little better than an engine of royal oppression.
The Norman baronage represents the element of power among the makers of this jurisprudence. In spite of individual exceptions who were cruel and oppressive, the mass of the Normans insisted upon law and order. They demanded men learned in the law for judges, and insisted that the judges should be independent of royal dictation. They asked for their own rights, but in Magna Charta insisted upon the rights of their humblest followers. In the years when the baronage was fighting John or Henry III., when civil war was distracting the land, practically the same judges went on holding court at Westminster, uninfluenced by the varying fortunes of barons or of king. Many a tale has been told to the discredit of the Normans; the jus primae noctis superstition is still an article of faith. But the legal historian knows that English liberty and law, even representative government, was the work of the Norman. William, Earl of Pembroke, well answered the king in the spirit of the Norman lawyer: “Nor would it be for the king’s honor that I should submit to his will against reason, whereby I should rather do wrong to him and to that justice, which he is bound to administer towards his people; and I should give an ill example to all men in deserting justice and right in compliance with his mistaken will. For this would show that I loved my worldly wealth better than justice.” It was not until the Norman baronage was broken by the wars of the Roses that England was ready to submit to the tyranny of the Yorkist and Tudor sovereigns—a tyranny that found its support in the mass of the nation. And when the struggle was resumed against the Stuart kings, the words of Bracton and of William of Pembroke were eagerly cited to prove that the king himself was not above the law of the land.
[2. ]The authorities for this period, beside the well-known works of Pollock and Maitland, Foss, Lord Campbell, Stubbs, Hallam and the other historians, include Bigelow’s Placita Anglo-Normannica, Freeman’s William Rufus, Burke’s Dormant and Extinct Peerages, Dugdale’s Baronage, Maitland’s Domesday, Pollock’s King’s Justice (12 Harv. L. Rev.), Pollock’s King’s Peace (13 Harv. L. Rev.), Foss’ Memories of Westminster Hall, Hall’s Court Life Under the Plantagenets, Mrs. Green’s Henry II., Pulling’s Order of the Coif, Beale’s Introduction to his edition of Glanville, Maitland’s Register of Writs (3 Harv. L. Rev.), Maitland’s Introduction to Bracton’s Note Book, Maitland’s Bracton and Azo, Select Pleas of the Crown (Selden Society), Select Civil Pleas (Selden Society), and numerous sources of general history, such as William of Malmesbury, Matthew Paris, etc.
[3. ]W. Jones Rep. 101.
[4. ]The above free translation is more than a reminiscence of Coleridge’s lines.
[5. ]The origin of this distinction, taking us back to the more primitive Germanic ideas and the contrast between an attornatus or anwalt and a vorsprecher, causidicus, or conteur, has been once for all set forth in Professor Heinrich Brunner’s essay on “Die Zulässigkeit der Anwaltschaft im französischen, normannischen, und englischen Rechte des Mittelalters,” first printed in the Zeitschrift für vergleichende Rechtswissenschaft, I, 321, and afterwards abbreviated in § 100 of his Deutsche Rechtsgeschichte (1892, vol. II).