The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

The Growth of Jurisprudence. 1154–1273.

During the period which divides the coronation of Henry II (1154) from the coronation of Edward I (1272) definite legislation was still an uncommon thing. Great as were the changes due to Henry's watchful and restless activity, they were changes that were effected without the pomp of solemn law-making. A few written or even spoken words communicated to his justices, those justices whom he was constantly sending to perambulate the country, might do great things, might institute new methods of procedure, might bring new classes of men and of things within the cognisance of the royal court. Some of his ordinances—or “assizes,” as they were called—have come down to us; others we have lost. No one was at any great pains to preserve their text, because they were regarded, not as new laws, but as mere temporary instructions which might be easily altered. They soon sink into the mass of unenacted “common law.” Even in the next, the thirteenth, century some of Henry's rules were regarded as traditional rules which had come down from a remote time, and which might be ascribed to the Conqueror, the Confessor, or any other king around whom a mist of fable had gathered.

Thus it came about that the lawyers of Edward I's day—and that was the day in which a professional class of temporal lawyers first became prominent in England—thought of Magna Carta as the oldest statute of the realm, the first chapter in the written law of the land, the earliest of those texts the very words of which are law. And what they did their successors do at the present day. The Great Charter stands in the forefront of our statute book, though of late years a great deal of it has been repealed. And certainly it is worthy of its place. It is worthy of its place just because it is no philosophical or oratorical declaration of the rights of man, nor even of the rights of Englishmen, but an intensely practical document, the fit prologue for those intensely practical statutes which English Parliaments will publish in age after age. What is more, it is a grand compromise, and a fit prologue for all those thousands of compromises in which the practical wisdom of the English race will always be expressing itself. Its very form is a compromise—in part that of a free grant of liberties made by the king, in part that of a treaty between him and his subjects, which is to be enforced against him if he breaks it. And then in its detailed clauses it must do something for all those sorts and conditions of men who have united to resist John's tyranny—for the bishop, the clerk, the baron, the knight, the burgess, the merchant—and there must be some give and take between these classes, for not all their interests are harmonious. But even in the Great Charter there is not much new law; indeed, its own theory of itself (if we may use such a phrase) is that the old law, which a lawless king has set at naught, is to be restored, defined, covenanted, and written.

The Magna Carta of our statute book is not exactly the charter that John sealed at Runnymede; it is a charter granted by his son and successor, Henry III, the text of the original document having been modified on more than one occasion. Only two other acts of Henry's long reign attained the rank of statute law. The Provisions of Merton, enacted by a great assembly of prelates and nobles, introduced several novelties, and contain those famous words, “We will not have the laws of England changed,” which were the reply of the barons to a request made by the bishops, who were desirous that our insular rule, “Once a bastard always a bastard,” might yield to the law of the universal Church, and that marriage might have a retroactive effect. Among Englishmen there was no wish to change the laws of England. If only the king and his foreign favourites would observe those laws, then—such was the common opinion—all would be well. A change came; vague discontent crystallised in the form of definite grievances. After the Barons’ War the king, though he had triumphed over his foes, and was enjoying his own again, was compelled to redress many of those grievances by the Provisions of Marlborough, or, as they have been commonly called, the Statute of Marlbridge. When, a few years afterwards, Henry died, the written, the enacted law of England consisted in the main of but four documents, which we can easily read through in half an hour—there was the Great Charter, there was the sister-charter which defined the forest law, there were the Statutes of Merton and of Marlbridge. To these we might add a few minor ordinances; but the old Anglo-Saxon dooms were by this time utterly forgotten, the law-books of the Norman age were already unintelligible, and even the assizes of Henry II, though but a century old, had become part and parcel of “the common law,” not to be distinguished from the unenacted rules which had gathered round them Englishmen might protest that they would not change the law of England, but as a matter of fact the law of England was being changed very rapidly by the incessant decisions of the powerful central court.