I.: England before the Norman Conquest.

The materials consist chiefly of (1) the laws, or “dooms,” as they generally call themselves; (2) the “land books” and other diplomata; (3) the ecclesiastical documents, in particular canons and penitentials.

• (1)

  We have first a group of very ancient Kentish laws, those of Ethelbert (circa 600), those of Hlothar and Eadric (circa 675), and those of Wihtred (696). A little earlier than these last come the dooms of the West-Saxon Ine (690). Then follows a sad gap, a gap of two centuries, for we get no more laws before those of Alfred; it is to be feared that we have lost some laws of the Mercian Offa. With the tenth century and the consolidation of the realm of England, legislation becomes a much commoner thing. Edward, Ethelstan, Edmund, Edgar issue important laws, and Ethelred issues many laws of a feeble, distracted kind. The series of dooms ends with the comprehensive code of Canute, one of the best legal monuments that the eleventh century has to show. Besides these laws properly so called, issued by King and Witan, our collections include a few documents which bear no legislative authority, namely, some statements of the wergelds of different orders of men, a few procedural formulas, the ritual of the ordeal, and the precious Rectitudines Singularum Personarum, a statement of Edition: current; Page: [15]the rights and duties of the various classes of persons to be found on a landed estate, a document the date of which is at present very indeterminate. Some further light on the law of the times before the Conquest is thrown by certain compilations made after the Conquest, of which hereafter; to wit, the so-called Leges of the Confessor, the Conqueror, and Henry I. With scarce an exception these dooms and other documents are written in Anglo-Saxon. An ancient Latin version [vetus versio] of many of them has been preserved, and testifies to the rapidity with which they became unintelligible after the Conquest1.

  The dooms are far from giving us a complete Edition: current; Page: [16]statement of the law. With possibly a few exceptions there seems to have been no attempt to put the general law in writing; rather the King and the Wise add new provisions to the already existing law or define a few points in it which are of special importance to the state. Hence we learn little of private law, and what we learn is implied rather than expressed; to get the peace kept is the main care of the rulers; thus we obtain long tariffs of the payments by which offences can be expiated, very little as to land-holding, inheritance, testament, contract, or the like. We have no document which purports to be the Lex of the English folk, or of any of the tribes absorbed therein; we have nothing quite parallel to the Lex Salica or the Lex Saxonum. Again, we cannot show for this period any remains of scientific or professional work, and we have no reason to suppose that any one before the Conquest ever thought of writing a text-book of law.

• (2) The diplomata of this age consist chiefly of grants of land (“land books”), for the more part royal grants, together with a comparatively small number of wills. The charters of grant are generally in Latin, save that the description of the boundaries of the land is often in English; the wills are usually in English. The latest collection of them will contain between two and three thousand documents1. If all were genuine, Edition: current; Page: [17]about one hundred of them should come from the seventh century, and about two hundred from the eighth; of course, however, many of them are not genuine, or but partially genuine, and perhaps the history of law presents no more difficult problem than that of drawing just inferences from documents which have either been tampered with or very carelessly copied. Invaluable as these instruments are, the use hitherto made of them for the purpose of purely legal history is somewhat disappointing. The terms in which rights are transferred are singularly vague and the amount of private law that can be got out of them is small. However they have only been accessible for some forty years past and their jural side1 has not yet been very thoroughly discussed. A few of the land books contain incidental accounts of litigation, but for the oldest official records of lawsuits we must look to a much later age.
• (3) Besides these we have ecclesiastical documents, Edition: current; Page: [18]canons and penitentials1 which must not be neglected. During this period it is impossible to draw a very sharp line between the law of the church and the law of the realm. It is highly probable again that the penitential literature had an important influence on the development of jurisprudence, and it often throws light on legal problems, for instance the treatment of slaves.

Materials being scanty, all that is said by the chroniclers and historians of the time and even by those of the next age will have to be carefully weighed; use must be made of Beda's works and of the Anglo-Saxon Chronicle. But the time had not yet come when annalists would incorporate legal documents in their books or give accurate accounts of litigation.

For the continental history of this same period there are two classes of documents which are of great service, but the like of which England cannot show: namely, formularies, that is, in our modern language, “precedents in conveyancing,” and estate registers, Edition: current; Page: [19]that is, descriptions of the manors of great landowners showing the names of the tenants and the nature of their services. We have, as it seems, nothing to set beside the Formulae Marculfi or the Polyptyque of the Abbot Irmino. The practice of conveying land by written instrument seems never to have worked itself thoroughly into the English folk-law, and the religious houses and other donees of “book-land” seem to have been allowed to draw up their own books pretty much according to their taste, a taste inclining towards pompous verbosity rather than juristic elegance. Still, it is possible that a very careful comparison of the most genuine books would lay bare the formulas on which they were constructed and show a connection between those formulas and the continental precedents. That we should have no manorial registers or “extents” from this period is much to be regretted; it suggests the inference, very probable for other reasons, that the manorial system formed itself much more rapidly in France than in England.

That we shall ever be able to reconstruct on a firm foundation a complete system of Anglo-Saxon law, of the law of the Confessor's day, to say nothing of Alfred's day or Ethelred's, may well be doubted; the materials are too scanty. The “dooms” are chiefly concerned with keeping the peace; the “land books,” considering their number and their length, tell us wonderfully little, so vague, so untechnical, is their wording. Still the most sceptical will not deny that within the present century a great deal of knowledge has been secured, especially about what we may call the public law of the time. And here of course it is Edition: current; Page: [20]important to observe that the old English law is no unique system; it is a slip of German law. This makes permissible a circumspect use of foreign materials, and it should be needless to say that during the last fifty years these have been the subject of scientific research which has achieved very excellent results. The great scholars who have done that work have not neglected our English dooms; these indeed have proved themselves invaluable in many a controversy. The fact that they are written, with hardly an exception, in the native tongue of the people, whereas from the first the continental lawgiver speaks in Latin; the fact that they are almost absolutely free from any taint of Roman law; the fact that their golden age begins with the tenth century, when on the continent the voice of law has become silent and the state for a while seems dissolved in feudal anarchy—these facts have given our dooms a high value in the eyes even of those whose primary concern was less for England than for Germany or France. There is good reason then to hope that the main outlines of the development even of private law will be drawn, although we may not aspire to that sort of knowledge which would have enabled us to plead a cause in an Anglo-Saxon hundred moot.

How much law there was common to all England, or common to all Englishmen, is one of the dark questions. After the Norman Conquest we find a prevailing opinion that England is divided between three great laws, West-Saxon, Mercian, Danish, three territorial laws as it would seem. On the surface of the documents the differences between these three laws seem rather a matter of words than a matter of substance; Edition: current; Page: [21]but neither by this nor by the universality of the later “common law” are we justified in setting aside a theory which writers of the eleventh and twelfth centuries regarded as of great importance. In earlier times the various laws would be tribal rather than territorial; but we have little evidence that the Kenting could carry with him his Kentish law into Mercia in the same way that the Frank or Bavarian could preserve his national law in Lombardy; the fact that there was not in England any race or class of men “living Roman law,” may have prevented the development of that system of “personal laws” which is a remarkable feature in the history of the continent. There is much evidence, however, that in the twelfth century local customs were many and important. The difficulty of reconstructing these will always be very great unless some new materials be found; still, work on Domesday Book and on the later manorial documents may succeed in disclosing some valuable distinctions.

In noticing what has been done already, it should be needless to mention Kemble's Saxons in England or his introductions to the various volumes of the Codex Diplomaticus. It will be more to the point to mention with regret that Konrad Maurer's Angelsächsische Rechtsverhältnisse is to be found only in the back numbers (volumes I., II., III.) of the Kritische Ueberschau published in Munich. The Essays in Anglo-Saxon Law (Boston, 1876), by Adams, Lodge, Young and Laughlin, should be well known in America. The public law is dealt with in the constitutional histories of Palgrave, Gneist, Stubbs; also by Freeman, in the first volume of his Norman Conquest. To name the Edition: current; Page: [22]books of foreign writers in which Anglo-Saxon law has been touched incidentally would be to give something like a catalogue of the labours of the “Germanists.” The influence of the Danes in the development of English law has until recent years been too much neglected. It is the subject of an elaborate work by Johannes C. H. R. Steenstrup, Danelag (Copenhagen, 1882). This constitutes the fourth volume of the Normannerne (1876-82).

II.: Norman Law.

If the history of the law which prevailed in England from 1066 to, let us say, 1200 is to be written, the history of the law which prevailed in Normandy before 1066 will have to be studied. Such study will always be a very difficult task, because, unless some great discovery remains to be made, it will be the reconstruction of law which has left no contemporary memorials of itself. We have at present hardly anything that can be called direct evidence of the legal condition of Normandy between the time when it ceased to be a part of the West-Frankish realm and a date long subsequent to the conquest of England. It is only about the middle of the twelfth century that we begin to get documents, and even then they come sparsely. What then we shall know about the period in question will be learnt by way of inferences, drawn partly from the time when Normandy was still a part of Neustria, when its written law consisted of the Lex Salica and the capitularies; partly from the Normandy of Henry II's reign and yet later times; partly again from what we Edition: current; Page: [23]find in England after the Norman Conquest. Much will always remain very dark, and there is reason to fear that a perverted patriotism will give one bias to English, another to continental writers—an American might surely afford to be strictly impartial. But enough has happened of late years to show that if historians will go deeply enough into legal problems a substantial accord may be established between them. The extreme opinions are the superficial opinions, and they are falling into discredit. The doctrines of Stubbs, Gneist and Brunner have a great deal in common. It is impossible now to maintain that William just swept away English in favour of Norman law. It is quite undeniable that new ideas and new institutions of farreaching importance “came in with the Conqueror.” Hale made a good remark when he said:

But even the chemical metaphor is inadequate, for the operation of law on law is far subtler than any process that the world of matter has to show. It is not that English law is swept away by any decree to make room for Norman law; it is much rather that ideas and institutions which come from Normandy slowly but surely transfigure the whole body of English law, especially English private law. Much evidently remains to be done for Norman law, much that will hardly be done by an Englishman; but already of late years a great deal has been gained, and the student of Glanvill must have the coaeval Très ancien Coutumier constantly in his hand.

In three very accessible places Heinrich Brunner has sketched the history of law in Normandy: (1) Das anglonormannische Erbfolgesystem (Leipzig, 1869); (2) Die Entstehung der Schwurgerichte (Berlin, 1871); (3) Ueberblick über die Geschichte der französischen, normannischen und englischen Rechtsquellen, in Holtzendorff's Encyclopädie der Rechtswissenschaft (1882), page 297. In his view, Norman law is Frankish: Frankish institutions take out a new lease of life in Normandy, when they are falling into decay in other parts of the quondam Frankish Empire.

The chief materials1 for Norman legal history are:

• (1) Exchequer Rolls. We possess, in whole or in part, rolls for the years 1180, 1184, 1195, 1198, 1201-032. They answer to the English Pipe Rolls.
• (2) Collections of judgments. We have several private collections of judgments of the Exchequer in the thirteenth century, beginning in 12073, drawn from official records not now forthcoming.
• (3) Law books. We have to distinguish:

• (i) A compilation, of which both Latin and French Edition: current; Page: [25]versions exist, known as Statuta et Consuetudines Normanniae, or Établissements et Coutumes de Normandie1; but this compilation proves to be composed of two different works: (a) a treatise which Brunner gives to the last years of the twelfth or the first years of the thirteenth century, and which Tardif dates in 1199 or 1200; and (b) a later treatise compiled a little after 1218 according to Brunner, about 1220 according to Tardif.
• (ii) Then comes the Grand Coutumier de Normandie. The Latin version of this, which is older than the French, calls itself Summa de Legibus Consuetudinum Normanniae, or Summa de Legibus in Curia Laicali, and was composed before 1280 and probably between 1270 and 12752.

There are a few later law-books of minor importance.

• (4) Diplomata. Normandy is poor in diplomata of early date and, according to Brunner, many of those that exist are still unprinted; but in the Collection de Documents Inédits is a small but ancient (1030-91) Edition: current; Page: [26]Cartulaire de la Sainte Trinité du Mont de Rouen, edited by Deville in 1841; Leopold Delisle has published a Cartulaire Normand de Philippe Auguste, Louis VIII, Saint Louis, et Philippe le Hardi (Caen, 1852); and there exists in the English Record office a manuscript collection made by Léchaudé d’Anisy, entitled Cartulaire de la Basse Normandie, from various Norman Archives1.

III.: From the Norman Conquest (1066) to Glanvill (circa 1188) and the Beginning of Legal Memory (1189).

We may classify the materials thus: (1) laws; (2) private collections of laws and legal text-books; (3) work done on Roman and Canon law; (4) diplomata; (5) Domesday Book, surveys, public accounts, etc.; (6) records of litigation.

• (1) Laws. It is, as we shall see, a little difficult to draw the line between the first two classes of documents. No one of the Norman Kings was a great legislator; but we have one short set of laws which may in the main be considered as the work of the Conqueror; besides these we have his ordinance separating the ecclesiastical from the temporal courts and another ordinance touching trial by battle. Henry I's coronation charter (1100) is of great value, Edition: current; Page: [27]and Stephen's second charter (1136) is of some value. Henry II was a legislator; we have from his day the Constitutions of Clarendon (1164), the Assize of Clarendon (1166), the Assize of Northampton (1176), the Assize of Arms (1181), and the Forest (1184); but we have reason to fear that we have lost ordinances of the greatest importance, in particular the Grand Assize and the Assize of Novel Disseisin, two ordinances which had momentous results in the history of private and even of public law.
• (2) Private collections of laws and legal text-books. Our first class of documents shades off into the second class by the intermediation of the so-called Leges Edwardi, Willelmi, Henrici Primi. A repeated confirmation of the Confessor's law (lagam not legem or leges Edwardi) apparently led to several attempts at the reproduction of this “good old law.” First we have an expanded version of the code of Canute (Schmid's Pseudoleges Canuti); then we have the Leges Edwardi Confessoris, a document which professedly states the result of an inquiry for the old law made by the Conqueror in the fourth year after the Conquest; but the purest version that we have alludes to the doings of William Rufus. Then we have a highly ornate and expanded version of the probably genuine laws of the Conqueror mentioned above: it looks like work of the thirteenth century. Then there is another set of laws attributed to the Conqueror, which as it appears both in French and Latin may be conveniently called “the bilingual code”; its author made great use of the laws of Canute; its history is in some degree implicated with the forgery of the false Edition: current; Page: [28]Ingulf. These various documents demand a more thorough criticism than any to which they have as yet been subjected1. Of much greater importance is the text-book known as the Leges Henrici Primi. Until lately it was usual to give this work to the reign of Stephen or even of Henry II, on the ground that the author had used the Decretum Gratiani; but his last critic, Liebermann, says that this is not so, and dates the work between 1108 and 1118; this earlier date seems for several reasons the more acceptable2. The writer has made a large use of the Anglo-Saxon Edition: current; Page: [29]laws, which in general he treats as still in force, but on occasion he stops gaps with extracts from the Lex Salica, Lex Ripuaria, the Frankish capitularies and some collections of canons; he has one passage which comes by a round-about way from Roman law; it is taken from an epitome of the Breviary of Alaric. Altogether he gives us a striking picture of an ancient system of law in course of dissolution and transformation; a great deal might yet be done for his text, which in places is singularly obscure.

The end of Henry II's reign is marked by the Tractatus de Legibus et Consuetudinibus Angliae1, usually, though on no very conclusive evidence, attributed to Ranulf Glanvill, who became chief justiciar in 1180, and died a crusader at the siege of Acre in 1190. This book, always referred to as “Glanvill,” was apparently written at the very end of Henry's reign, and was not finished until after 1187. It is the first of our legal classics, and its orderly, practical brevity contrasts strongly with the diffuse, chaotic, antiquarian Leges Henrici. This is due in part to the fact that the Edition: current; Page: [30]author deals only with the doings of the King's Court, which is now beginning to make itself a tribunal of first instance for all England at the expense of the communal and seigniorial courts, partly also to the fact that he knew some Roman law and made good use of his knowledge in the arrangement of his matter. The great outlines of our land law have now taken shape, and many of the “forms of action” are already established.

The Dialogus de Scaccario, written, as is supposed, by Richard Fitz Neal, bishop of London, between 1178 and the end of Henry II's reign, is hardly a “law book,” but is an excellent and valuable little treatise on the practice of the Exchequer and the whole fiscal system, the work of one very familiar with his subject. This book, written by an administrator rather for the benefit of the intelligent public than for the use of legal practitioners, stands alone in our mediaeval literature and must be invaluable to the historian of public law1.

• (3) Work upon Roman and Canon law. In dealing with any century later than the thirteenth, the historian of English law could afford to be silent about Roman and Canon law, for, though these were studied and practised in England, and in particular many of the ordinary affairs of life, testamentary and matrimonial Edition: current; Page: [31]cases, were governed solely by the Canon law, still these laws appear in a strictly subordinate position, are administered by special courts, and exercise very little, if any, influence on the common law of England. But a really adequate treatment of the period which lies between the Norman Conquest and the accession of Edward I would require some knowledge of Roman law and its mediaeval history, also some knowledge of the earlier stages in the development of Canon law. Lanfranc, the right-hand man of the Conqueror, was trained in the Pavian law school, where Roman doctrines were already leavening the mass of ancient Lombard law; his subtle arguments were long remem bered in Pavia. The influence of the Lombard school on Norman and English law is a theme worthy of discussion1. Then in Stephen's reign, as is well known, Vacarius2 lectured in England on Roman law; it has even been conjectured that the youth who was to be Henry II sat at his feet3. Vacarius wrote a book of Edition: current; Page: [32]Roman law, designed for the use of poor scholars, a book that is extant, a book that surely ought to be in print. His school did not perish, his scholars glossed his work. There are extant, again, several books of practice of the twelfth century and the first years of the thirteenth, which good critics believe to have been written either in Normandy or in England. Among them is one that has been ascribed to William of Longchamp, who became chief justiciar of England. In many quarters there are signs that an acquaintance with Roman law was not uncommon among cultivated men. Glanvill's work was influenced, Bracton's work profoundly influenced, by Roman law. Some of Henry II's most important reforms, in particular the institution of definitely possessory actions, may be traced directly or indirectly to the working of the same influence. The part played by Roman and Canon law in this critical stage of the formation of the common law deserves a minuter examination than it has as yet received1.
• Edition: current; Page: [33](4) The diplomata of this period are numerous and of great interest; they are brief, formal documents, contrasting strongly with the lax and verbose land books of an earlier age; they are for the more part charters of feoffment and grants or confirmations of franchises; they have never been properly collected. Charters of liberties granted to towns should perhaps form a class by themselves, but those coming from this age are not numerous1.
• (5) Domesday Book, surveys, public accounts, etc. By far the greatest monument of Norman government is Domesday Book, the record of the survey of England instituted by the Conqueror and effected by inquests of local jurors; it was completed in the summer of 10862. Edition: current; Page: [34]The form of this document is generally known; it is primarily a fiscal survey; the liability for “geld” in time past, the capacity for paying “geld” in time to come are the chief points which are to be ascertained; it has been well called “a great rate book.” Incidentally, however, it gives us a marvellously detailed picture of the legal, social and economic state of England, but a picture which in some respects is not easily interpreted. Of late it has become the centre of a considerable literature1; but the historian of law will have to regret that a great deal of labour and ingenuity has been thrown away on the impossible attempt to solve the economic problems without first solving the legal problems.

The other public records of this period consist chiefly of Pipe Rolls, that is, the rolls of the sheriffs’ Edition: current; Page: [35]accounts as audited by the Exchequer. Chance has preserved one very ancient roll, now ascribed to 31 Henry I. No other roll is found until 2 Henry II, but thenceforward the series is very continuous1. These rolls throw light directly on fiscal machinery and administration, indirectly on numberless points of law. The feudal arrangement of England, the distribution of knights’ fees and serjeanties, the obligation of military service and so forth are illustrated by documents of Henry II's reign contained in the Black Book of the Exchequer2.

• (6) Records of litigation. Though we have evidence that before the end of Henry II's reign pleas before the king's court were enrolled, we have no extant plea rolls from this age. Accounts of litigation must be sought for in the monastic annals; when found they are too often loose statements of interested parties. However, a good many transcripts of procedural writs have been preserved and these are of the highest value. Before our period is out we begin to get a few “fines” (i.e. records of actions brought and compromised, already a common means of conveying land); in four cases the original documents are preserved, in other cases we have copies3

In passing we should note that the chronicles of this age are fruitful fields. Not only do they sometimes contain documents of great importance, laws, ordinances, diplomata, but they also supply many illustrations of the working of law and from time to time give us contemporary criticism of legal measures and legal arrangements.

On the whole we have no reason to complain of the tools provided for us. We cannot say of England, as has been said of France and Germany, that between the period of the folk laws and the period of the law books lies a dark age which has left no legal monument of itself. In particular the Leges Henrici serve to mediate between the dooms of Canute and the treatise of Glanvill. The lack is rather of workmen than of implements. But it is to be remembered that it is only of late years that those implements have become generally accessible; also that we have had not only to learn but also to unlearn many things, for the whole of the traditional treatment of the legal history of the Norman time has been vitiated by the great Ingulfine forgery, one of the most splendidly successful frauds ever perpetrated. A great deal of what went on in the local courts we never shall know; but in Henry II's Edition: current; Page: [37]day the practice and procedure of the king's court become clear to us, and subsequent history has shown that the king's court, becoming in course of time the king's courts, was to have the whole fate of English law in its hands. Towards the end of the period the history of law begins to be, at least in part, a history of professional learning.

There is no very modern work devoted to the legal history of this age as a whole, but it is the subject of Georg Phillips’ Englische Reichs-und Rechtsgeschichte (1827–28). M. M. Bigelow's History of Procedure (London, 1880) has provided for one important department. Of course constitutional history has had a large share of attention, and books have collected round Domesday and round two other points, namely, frankpledge and trial by jury. As to the former of these two points, it will only be necessary to mention Heinrich Marquardsen's Haft und Bürgschaft bei den Angelsachsen (Erlangen, 1852), as this will put its reader in the current of the discussion. As to the latter, Brunner's brilliant book, Entstehung der Schwurgerichte, has already been named; William Forsyth's History of Trial by Jury (1852), and Friedrich August Biener's Das Englische Geschwornengericht (Leipzig, 1852), are useful, though chiefly as regards a somewhat later time.

IV.: From the Coronation of Richard I to the Death of Edward I.

Our sources of information now begin to flow very freely, and so much has already been printed that very probably the historian would find it easier to paint a life-like picture of the thirteenth century than to accomplish the same task for either the fourteenth or the fifteenth. We may arrange the materials under the following heads: (1) laws; (2) judicial records; (3) other public records; (4) law books; (5) law reports; (6) manorial law; (7) municipal and mercantile law.

• (1) Laws. For reasons which will soon appear, we use the untechnical term “laws” rather than any more precise term. Neither Richard nor John was a legislator; they give us nothing that can be called laws except a few ordinances touching weights, measures, money, the prices of victuals. At the end of his reign, however, John was forced to grant the Great Charter (1215); this, if it is a treaty between the various powers of the state, is also an act declaring and amending the law in a great number of particulars: to use terms familiar in our own day, Magna Carta is an act for the amendment of the law of real property and for the advancement of justice. The various editions (1215–16–17–25) of the charter being distinguished, we note that it is the charter of 1225 which becomes the Magna Carta of subsequent ages and which gets to be generally considered as the first “statute.” The term “statute” is one that cannot easily be defined. It comes into use in Edward I's Edition: current; Page: [39]reign; supplanting “provisions,” which is characteristic of Henry III's reign; which had supplanted “assize,” characteristic of Henry II's, Richard's, John's. Our extant Statute Rolls begin with the statute of Gloucester (1278), and it is very doubtful whether before that date any rolls were set apart for the reception of laws. Some of the earlier laws of our period are to be found on other rolls, Patent, Close, Coram Rege Rolls: others are not to be found on any rolls at all, but have been preserved in monastic annals or other private manuscripts1. In later times of course it became the settled Edition: current; Page: [40]doctrine that in a “statute” king, lords and commons must have concurred, and that a rule laid down with such concurrence is a “statute.” But with our improved knowledge of the history of Parliament we cannot insist on this doctrine when dealing with the thirteenth century. Some of the received “statutes” even of Edward I's day, to say nothing of Henry III's, were issued without any participation by the commons in the legislative act. After the charter of 1225 we have the statute (or provisions) of Merton (1236), the provisions of Westminster (1259), the statute of Marlborough (1267), all of the first importance; and upon these follows the great series of Edward I's statutes, a most remarkable body of reforming laws. Hale's saying about Edward I was very true:

• (2) Judicial records. The extant Plea Rolls (rolls of pleadings and judgments) of the king's courts begin in 1194 (6 Richard I), and though we have by no means a complete series of them, we have for the thirteenth century far more than any one is likely to use. These rolls fall into divers classes; there are Coram Rege (King's Bench) Rolls, De Banco (Common Pleas) Rolls, Exchequer Rolls, Eyre Rolls, Assize Rolls, Gaol Delivery Rolls. The enormous value of these documents to the historian is obvious; they give him a very complete view of all the proceedings of the Edition: current; Page: [41]royal tribunals1. The rolls of the thirteenth century are in one respect better material than those of later times, since they frequently give not merely the judgment but the ratio decidendi expressed in brief, neat terms. We also begin to get by the thousand “feet of fines,” i.e. records of actions brought and compromised as a means of conveying land. The light which these hitherto neglected documents throw upon the history of conveyancing will some day be appreciated2.
• (3) Other public records. The Pipe Rolls continue Edition: current; Page: [42]to give us the sheriffs’ accounts; but their importance now becomes much less, since they are eclipsed by far more communicative rolls, namely, the Rolls of Letters Patent and Letters Close, the Fine Rolls and the Charter Rolls. These enable us to study in minute detail the whole of the administrative machinery of the realm; and, owing to the publication of those belonging to John's reign, the governmental work of that age can be very thoroughly understood and illustrated. The Charter Rolls contain copies of the royal grants made to municipalities and to individuals, and thus to some extent they supply the place of a Codex Diplomaticus. Then from Edward I's reign we have parliamentary records, a broken series of Rolls of Parliament, of Petitions to Parliament, and Pleas in Parliament1.
• (4) Law books. In England as elsewhere the thirteenth century might be called “the period of the law books”; that is to say, the historian of this period will naturally reckon text-books, notably one text-book, as among the very best of his materials.

• (a) Bracton's Tractatus (or Summa) de Legibus et Consuetudinibus Angliae is by far the greatest of our mediaeval law books. It seems to be the work of Henry of Bratton, who for many years was a judge of the king's court and who died in 1268. It seems also to be an unfinished book and to have been composed chiefly between the years 1250 and 1256. It covers the greater part of the field of law. In laying out his scheme the author has made great use of the works of Azo, a Bolognese civilian, and thence he has taken many of the generalities of law; he may also have made some study of the Roman books at first hand; but he was no mere theorist; at every point he appeals to the rolls of the king's court, especially to the rolls of two judges already dead. Martin of Pateshull and William of Raleigh; his law is English case law systematized by the aid of methods and principles which have been learnt from the civilians. A Note Book full of cases extracted from the rolls has recently been discovered, and there is some reason for thinking that it was made by or for Bracton and used by him in the composition of his treatise1.Edition: current; Page: [44]
• (b) Fleta is the work of an anonymous author, seemingly compiled about 1290. It gets its name from a preface which says that this book may well be called Fleta since it was written “in Fleta,” i.e. in the Fleet gaol. In substance it is an edition of Bracton much abridged and “brought up to date” by references to the earlier statutes of Edward I. It has however some things that are not in Bracton, notably an account of the manorial organization; this the writer seems to have obtained from what we may call “the Walter of Henley literature,” to which reference will be made below.
• (c) Bracton and Fleta are Latin books: Britton is our first French text-book. It seems to have been written about 1290. The writer made great use of Bracton and perhaps he used Fleta also; but he has better claim to be treated as an original author than has the maker of Fleta. He arranges Bracton's material according to a new plan, and puts his whole book into the king's mouth, so that all the law in it appears as the king's command. Who he was we do not know; he has been identified with John le Breton, a royal judge and bishop of Hereford; but the book, as we have it, mentions statutes passed after the Edition: current; Page: [45]bishop's death. To judge by the number of existing manuscripts, Bracton and Britton both became very popular, while Fleta had no success1.
• (d) Selden had a manuscript purporting to contain Bracton's treatise abridged by Gilbert Thornton in the twentieth year of Edward I; Thornton was chief justice. Selden's manuscript is not forthcoming and he did not know of any other like it. Possibly, however, Thornton's abridgement is represented by some of the existing manuscripts which give abbreviated versions of Bracton's book.
• (e) Works of minor importance are two little treatises on procedure by Ralph Hengham, known respectively as Hengham Magna and Hengham Parva; a small French tract of uncertain date, also on procedure, known from its first words as Fet assavoir; and various little tracts found in manuscripts under such titles as Summa ad cassandum omnimoda brevia, Summa quae vocatur Officium Justiciariorum, Summa quae vocatur Cadit Assisa, Placita placitata, and the like. They are of an intensely practical character, but deserve to be collected2.
• Edition: current; Page: [46](f) To Edward II's reign, or perhaps to the end of his father's, we must attribute the interesting but dangerous Mirror of Justices of Andrew Horne, fishmonger and town clerk of London1. It is the work of one profoundly dissatisfied with the administration of the law by the king's judges. As against this he appeals to myths and legends about the law of King Alfred's day and the like, some of which myths and legends were perhaps traditional, while others may have been deliberately concocted. Intelligently read it is very instructive; but the intelligent reader will often infer that the law is exactly the opposite of what the writer represents it to be. It has done much harm to the cause of legal history; it imposed upon Coke and even in the present century has been treated as contemporary evidence of Anglo-Saxon law.
• (g) There is hardly any book more urgently needed by the historian of English law than one which should trace the gradual growth of the body of original writs, i.e. of the writs whereby actions were begun; such writs were the very skeleton of our mediaeval corpus juris. The official Registrum Omnium Brevium as printed in the sixteenth century (1531, 1553, 1595, 1687) is obviously a collection that has been slowly put together. It is believed that extant manuscripts still offer a large supply of materials capable of illustrating Edition: current; Page: [47]the process of its growth. Some of the manuscript collections of writs go back to Henry III's reign, and occasionally have notes naming the inventors of new writs1. Here is a field in which excellent work might be done.

• (5) Law reports. Just at the end of the thirteenth century there appear books of a new kind, books whose successors are to play a very large part in the legal history of all subsequent ages; we have a few Year Books of Edward I's reign2. These are reports in French by anonymous writers of the discussions which took place in court between judges and counsel over cases of interest; whether they bore any official sanction we do not know. They are of special value as showing the development of legal conceptions, which is better displayed in the dialectic process than in the formal Latin record which gives the pleadings and judgment in their final form; we learn what arguments were used and also what arguments had to be abandoned. But for the period now in question we can Edition: current; Page: [48]only give the Year Books a secondary place among our materials.
• (6) Manorial law. Of late years our horizon has been enormously extended by the revelation of vast quantities of documents illustrative of manorial law and custom, a department of law which has hitherto been much neglected, but which is of the very highest interest to all students of economic and social history.

• (a) In the first place we have numerous “extents” of manors, i.e. descriptions which give us the number and names of the tenants, the size of their holdings, the legal character of their tenure and the kind and amount of their service; the “extent” is a statement of all these things made by a jury of tenants. Such extents are found in the monastic cartularies and registers. Among these we may mention the Boldon Book, which is an account of the palatinate of Durham, the Glastonbury Inquisitions, the Cartulary of Burton Abbey, the Domesday of St Paul's, the Register of Worcester Priory, the Cartularies of Gloucester, Ramsey, and Battle. A few of those mentioned at the head of our list take us back into the twelfth century. There are still several cartularies which ought to be printed. The Hundred Rolls compiled in Edward I's reign give us the results of a great inquest prosecuted by royal authority into “the franchises,” i.e. the jurisdictional and other regalia which were in the hands of subjects; we thus obtain an excellent picture of seignorial justice. But for certain counties and parts of counties these Hundred Rolls give us far more, namely, full “extents” of all manors. They thus serve to supplement and correct the notions which we might form if we studied Edition: current; Page: [49]only the ecclesiastical manors as displayed in the cartularies1
• (b) Almost nothing has yet been done towards the publication of a class of documents which are quite as important as the “extents,” namely, the earliest rolls of the manorial and other local courts. We have a few older than 1250, a considerable number older than 13002. They show the manorial system in full play, illustrate all its workings and throw light on many points of legal history which are not explained by the records of more exalted courts3.
• Edition: current; Page: [50](c) Little known to the world, there is a small but complicated literature of tracts on “husbandry” and the management of manors. In whole or in part it is often associated with the name of a certain “Walter of Henley.” The author of Fleta has made use of it in his well-known chapter on the manorial system. Further investigation will perhaps distinguish between two or three tracts that are intertwined in the manuscripts and presented in varying forms. An edition of all or some of these tracts has been projected. They bear directly rather on agricultural and economic than on legal history; but the historian of manorial law cannot afford to neglect them1.

This department of mediaeval law, concerning as it does the great mass of the population, is beginning to attract the attention that it deserves. The traditional Edition: current; Page: [51]learning of lawyers about the manorial system went back only to comparatively recent times and their speculations about earlier ages had been meagre and fruitless. A new vista was opened by Erwin Nasse's Ueber die mittelalterliche Feldgemeinschaft in England (Bonn, 1869), which was translated into English by H. A. Ouvry (1871). H. S. Maine's Lectures on Village Communities in the East and West (1876) drew the attention of Englishmen to the work that had been done in Germany. Frederic Seebohm's English Village Community (1883) came into sharp conflict with what were coming to be accepted doctrines and must lead to yet further researches. In 1887 Paul Vinogradoff published at St Petersburg a Russian treatise in which much use was made of our manorial extents and rolls; a larger work in English by the same hand is expected. This of course is a department in which legal and economic history meet; and it has become clear that the historian of law must realize the economic meaning of legal rules while the historical school of economists must study mediaeval law.

• (7) Municipal and mercantile law. The growth of municipal institutions, the development of guilds and corporations, are now recognized topics of “constitutional history.” But a great deal remains to be done towards the publication of documents illustrating the laws and customs administered in the municipal courts. In particular there is much to be discovered about “the law merchant.” Before the end of the thirteenth century the idea had been formed of a lex mercatoria, to be administered between merchants in mercantile Edition: current; Page: [52]affairs, which differed in some respects from the common law. Throughout the middle ages the merchants had special tribunals to go to, and consequently very few of their affairs are noticed in the Year Books. Whether very much of this law merchant can be recovered may be doubtful, but until the archives of our cities and boroughs have been thoroughly explored by some one who knows what to look for, we shall do well to believe that something may yet be learned1.

V.: From Edward III to Henry VIII.

About the remainder of the middle ages we must speak more briefly. On the whole the law has no longer to be sought in out of the way or but newly accessible sources; it may be found in books which lawyers have long had by them and regarded not merely as evidence of old law but as authority, namely the Statute Book, the Year Books and the very few Edition: current; Page: [53]text-books which this age presents. It would be a great mistake, however, to suppose that these sources should be exclusively used or that they are in the state in which they ought to be.

After Edward the Third's accession we can insist on a strict definition of a statute. The more important laws of a general character are placed on the Statute Roll and about their text there can seldom be any dispute; we have a good official edition of them. But the Parliament Rolls, an unfortunately broken series, also should be studied, as they often show the motives of the legislators and also contain some of those acts of Parliament which were not thought of sufficient general and permanent importance to be engrossed on the Statute Roll; a great deal that concerns trade and agriculture and villainage and the working of the inferior organs of the constitution, in particular the new magistracy, the justices of the peace, must be sought rather in the Parliament Rolls than among the collections of statutes. Again, most of the other series of non-judicial rolls mentioned above are continued; and though they are not of such priceless value for this as for former periods, they should certainly not be neglected by any one who wishes to make real to himself and others the working of our public law. A great deal of that law never comes into the pages of the Year Books and for that reason has remained unknown to us.

We turn to the law reports. A series of Year Books extends from Edward II to Henry VIII, from 1307 to 1535. They got into print piecemeal at various times; the most comprehensive edition is one Edition: current; Page: [54]published in ten volumes, 1678–80. This edition has about as many faults as an edition can well have; it teems with gross and perplexing blunders. Happily it is not complete, and we have thus been enabled to contrast a good with a bad edition. It leaves a gap between the tenth and the seventeenth years of Edward III. This gap is being gradually filled up in the Rolls Series by L. O. Pike, who has already given the books for the years 11–14 Edward III; but there are several other considerable gaps to be filled, one for instance between the thirtieth and thirty-eighth years of the same reign, another representing the whole reign of Richard II. Henry VIII's long reign is scurvily treated, and though we begin now to get a little help from reporters whose names are known, from Dyer and others, still it is true that we have singularly few printed memorials of the law of this important time. An edition of all the Year Books similar to that which we now have in the Rolls Series for a few lucky years of Edward III would be an inestimable gain, not merely to the historian of law but to the historian of the English people.

One of the many excellent features of these newly published Year Books of Edward III's reign consists of further information about the cases there reported, which information has been obtained from the Plea Rolls. Often the report of a case in the Year Books is but partially intelligible to modern readers until they are told what are the pleadings and the judgment formally recorded on the official roll of the court. The Plea Rolls are extant. To print even a few rolls of the fourteenth or fifteenth century would be a heavy Edition: current; Page: [55]task, so copious is the flow of litigation, so lengthy have the pleadings by this time become1. Still, in that new edition of the Year Books which is urgently needed, a brief statement of the recorded pleadings and judgment ought to be frequently given. But this is not the only use that should be made of the rolls. The Year Books, invaluable though they be (or would be were they made legible), are far from giving us a complete view even of the litigation of the period, to say nothing of a complete view of its law. They are essentially books made by lawyers for lawyers, and consequently they put prominently before us only those parts of the law which were of immediate interest to the practitioners of the time; an exaggerated emphasis is thus laid on minute points of pleading and practice, while some of the weightiest matters of the law are treated as obvious and therefore fall into the back-ground. If anything like a thorough history of “the forms of action” is to be written, the Plea Rolls as well as the Year Books must be examined. The work of turning over roll after roll will be long and tedious, but greater feats of industry have been performed with far less gain in prospect. To give one example of the use of the Plea Rolls, let us recall Darnel's case, the famous case of Charles I's day, about the power of the king and the lords of the council to commit to prison. The question what were the courts to do with a man so committed could not be answered out of the Year Books, it had to be answered out of the Plea Rolls. These rolls contain an exhaustive history of the writ Edition: current; Page: [56]of habeas corpus, the Year Books have little about it, for cases about “misnomer” and the like had been far more interesting to lawyers than “the liberty of the subject.” And so it is to be suspected that the new principles of private law which appear in the Year Books of Edward IV—the rise of the action of assumpsit, the doctrine of consideration, the protection of copyholders, the conversion of the action of ejectment into a means of trying title to lands, the destruction of estates tail by fictitious recoveries—that all these and many other matters of elementary importance might be fully illustrated from the Plea Rolls, whereas the Year Books give us but dark hints and unsolved riddles.

The manor becomes steadily of less importance during this period; but that is no reason why the manorial rolls, of which we have now an ample supply, should be neglected; but neglected they have hitherto been. The historian should take account not only of growth but of decay also, and the records of this time should give the most welcome evidence as to the effect of great social catastrophes, the black death, the peasants’ revolt, the dissolution of the monasteries, and also as to the formation of what comes to be known as copyhold tenure. And again, turning from country to town, we shall not believe that the development of the law merchant has left no traces of itself until some one has given a few years to hunting for them.

Still more important, at least more exciting, is the history of the jurisdiction of the Council and of the new courts which arise out of it, the Court of Star Chamber, the Court of Chancery. Much has been Edition: current; Page: [57]recovered, but assuredly much more can be recovered. There are large quantities of Chancery proceedings to be examined; and it is impossible to believe that we shall always be left in our present state of utter ignorance as to the sources of that equitable jurisprudence which in course of time transfigured our English law, be left guessing whether the chancellors trusted to natural reason, or borrowed from Roman law, or merely developed principles of old English law which had got shut out from the courts of common law by the rigours of the system of writs1.

With a few, and these late exceptions, the textbooks of the time are of little value; with the thirteenth Edition: current; Page: [58]century died the impulse to explain the law as a reasonable system and give it an artistic shape. Still that is no reason why such books as there are should be left in their present dateless, ill-printed or even unprinted condition; the Old Tenures, the Old Natura Brevium, the Novae Narrationes want editors; and towards the end of our period we get some “readings” which should be published, such as Marrow's Reading on Justices of the Peace, a work which Fitzherbert and Lambard treated as of high authority. Littleton's Tenures, which marks the revival of legal and literary endeavour under Edward IV, has had enough done for it by its great commentator, in some respects more than enough, for the historian will have to warn himself against seeing Coke in Littleton1. Needless to say it is a very good book; and the last parts of it, now little read, are a most curious monument of the dying middle ages. They only become really intelligible and lifelike in the light of the Paston Letters and similar evidence, a light which reveals the marvellous environment of violence, fraud and chicane in which an English gentleman lived. Under Henry VIII, Fitzherbert begins the work of summing up our mediaeval law in his Abridgement and his New Natura Brevium. Edition: current; Page: [59]Sir John Fortescue's works give excellent illustrations of several legal institutions, notably of trial by jury, though as a whole they are rather concerned with politics than with law1.

Here I must stop, without of course intending to suggest that history stops here. The historian of modern law—the historian, let us say, who should choose as his starting point the reign of Elizabeth—would have before him an enormously difficult task. The difficulty would lie not in a dearth but in a superabundance of materials. To trace the development of the leading doctrines at once faithfully and artistically would require not only vast learning but consummate skill, such a combination of powers as is allowed to but few men in a century. But the result might be one of the most instructive and most readable books ever written, one of the great books of the world. However, no one who feels the impulse to undertake such a work will need to be told how to set about it or whither to look for his materials. It is somewhat otherwise as regards the middle ages; those who have seen a little of our records printed and unprinted may be able to give a few acceptable hints to those who have seen less, and it is with some vague hope that the above notes may be of service to beginners that Edition: current; Page: [60]they have been strung together; may they soon become antiquated, even if they are not so already! They should at least convey the impression that there is a great deal to be done for English mediaeval law; much of it can only be done in England, for we have got the documents here; but there is no reason why it should not be done by Americans. We have piles, stacks, cartloads of documents waiting to be read—will some one come over into England and help us1?

I.: Instances relating to rights of ownership or possession in which there has been no exercise of royal or judicial power

• (a) In Bracton's day it was the opinion of some that the intruder, as distinguished from the disseisor, gained no legally protected possession until after the lapse of a year1.
• (b) “By the ancient law,” so says Coke following Broke, “if the feoffee of a disseisor had continued a year and day, the entry of the disseisee for his negligence had been taken away.” This was not the law of Bracton's day, nor of Littleton's. Conceivably it was the law of some intermediate period, but contemporary proof of this is wanting2.
• (c) The effect of a descent cast in tolling an entry can be prevented by the entry and claim of the true owner made within a year and day before the death of the wrongful possessor. But this cannot be very ancient law, for the rule of Bracton's day protects even the disseisor himself3.

II.: Instances in which there has been an exercise of royal or judicial power or in which the king's rights are involved

• (d) After final judgment in a writ of right strangers had a year and day, reckoned from the execution of Edition: current; Page: [69]the writ of seisin, for putting in their claims; if they took no advantage of this they were barred.
• (e) So in case of a fine strangers as well as parties and privies were barred if they made no claim within year and day from the execution of the writ of seisin.
• (f) After judgment given in an action the plaintiff may obtain a writ of execution within year and day. Only for a year and day is the judgment kept in immediate suspense over the defendant.
• (g) In the case of an estray if the owner, proclamation being made, does not claim it within year and day, it is forfeited. The right to estrays is a royal right.
• (h) So in the case of wreck there is no forfeiture until after year and day. The right to wreck is a royal right.
• (i) A villein dwelling on the ancient demesne cannot be claimed if he has lived there for year and day. This also looks like an outcome of the royal prerogative.
• (k) The king has year, day and waste of the felon's land. For year and day it is under the king's ban.
• (l) A protection shall be allowed for year and day and no longer. A protection of course is a royal boon.
• (m) An essoin for sickness holds good for year and day.

III.: Miscellaneous

• (n) The widow or heir has year and day for an appeal of death. This rule is statutory1; earlier law had not allowed any so long a time.
• Edition: current; Page: [70](o) There is no murder or manslaughter if the injured man live for year and day after the injury. May not this curious rule, which still has a place in our criminal law, be an outcome of the limitation of a time for an appeal of homicide? If the period began to run from the time when the wound was inflicted1, then an appeal could never be brought in case the victim lived on for year and day.

Now looking at this medley of rules we shall probably agree that they afford few, if any, materials for the history of the ordinary law about ownership and possession. Our first class of rules is small and does not look ancient; two of the three rules in it are not as old as Bracton, the remaining rule was uncertain in his day.

The rule again which gives claimants a year and a day for asserting their rights after a final judgment or a fine does not seem to be ancient. Bracton very distinctly says that all who are not under disability are bound so soon as the indenture of the fine is delivered to the parties. And he argues that this gives them long enough for the assertion of their rights:—the indenture is not delivered until fifteen days after the compromise has been made in court, so there are fifteen days within which claims can be made, and fifteen days is the time usually allowed for the appearance in court of a defendant who has been summoned. We thus see that the levying of a fine is regarded as a summons to all whom it may concern, and we are enabled to connect this judicial conveyance with the Edition: current; Page: [71]procedure against contumacious defendants. When a tenant in a real action will not appear the land is seized into the king's hand, and, unless the tenant replevies it within fifteen days, then it will be adjudged to the demandant. So in case of the fine, the true owner has but fifteen days in which to come forward and make his protest. How this time was enlarged from fifteen days to year and day I cannot say; but this happened in the interval between Bracton and Fleta1. In one way and another therefore the term of year and day seems to have become more and more popular as a term to be set to claims of various sorts and kinds. The further back we look the more restricted is its operation, the more closely does it seem connected with prerogatival rights, or with exercises of royal or judicial power.

It must be confessed however that a very different inference has been drawn by some foreign writers from materials very similar to those that have come before us. Some remains of the old prescription, they argue, are preserved, those chiefly which interest the king or other powerful persons. Thus the rule about estrays is a relic of the old general rule. Once there was no claim for goods which for year and day had remained in the possession of a finder. The king or the lord with regalities set up a claim to the custody of stray cattle and in his favour the rule was still Edition: current; Page: [72]operative; after year and day they were his own. Now we ourselves have texts of the twelfth century which seem to take us back to a time when the king's claim to estrays had not yet reached its full dimensions, and yet they mention year and day as a term which bars claims1. But according to my comprehension of them they neither lay down nor even suggest the general rule that the loser of goods has no action for them after year and day. The person who after the lapse of that time is to be protected against claims is a person who has claimed goods and had them delivered up to him upon giving security that he will produce them in court if some other demands them. It seems presupposed that the delivery is made to him by a lord who has a court; thus he is not merely a possessor but a possessor who has obtained possession under an exercise of jurisdiction.

So again, to touch for one moment the most controverted point, there are many who would connect the safety of the villein who for year and day has dwelt in a chartered town, with the famous title De Migrantibus2, and there are some who would see in that provision of the Lex Salica a direct proof of the primitive German prescription. The “migrans” who has settled in a township contrary to the wish of any of its members becomes safe against them after lapse of a year. In one way or another a rule which had once compelled the folk of the township to put up with the presence of an intruder was twisted so as to Edition: current; Page: [73]give personal freedom to all who maintained themselves in the town for year and day. But whatever may have been the case in France, in England this rule has a very royal look; it is essentially a privilegium; the places in which it holds good are loca privilegiata, boroughs on which the king has conferred a special boon, or in later times all the manors of the royal demesne; it is much to the king's interest that his towns and his manors should be peopled1.

On the whole, then, if we regarded only our common law the thought would probably never strike us that it contained the scattered fragments of an ancient rule under which possession continued for year and day ripened into ownership, or barred the claims of all who were not under disability.

Such is the case in the common law. But we have now to state some early evidence which has hitherto escaped attention. In the first place, there is a passage in the Leges Henrici Primi which may seem to imply some general rule to the effect that a person will to some extent or another be prejudiced by suffering year and day to go by without urging his proprietary claims2. Then again in the twelfth century Edition: current; Page: [74]and the first part of the thirteenth some of the English boroughs, and those the most important, had charters which conferred some degree of protection upon a possession of land continued for year and day: at least if that possession had been obtained under a conveyance perfected in the borough court. Proof of this shall be given:—

Newcastle-upon-Tyne. Customs of the reign of Henry I as reported under Henry II.

Lincoln. Charter of Henry II.

Nottingham. Charter of Henry II.

Bury St Edmunds. Statement by the burgesses of their custom in 1192 according to a chronicler of the time.

London. Statement of custom, probably of the twelfth century.

Nottingham. Charter of John. 1200.

Derby. Charter of John. 1204.

The same words as in the charter of Nottingham last cited. (Rot. Cart. p. 138 b.)

Northampton. 1199–1215.

In a writ of right for lands in Northampton the tenant pleads that he has held the land for year and day, “et consuetudo ville est quod qui its tenuerit non ponatur de cetero in placitum inde, et inde profert cartam domini regis per quam confirmat hominibus de Northantona quod nullus ponatur in placito de tenemento quod teneat infra burgum Northantone nisi secundum consuetudinem ville et ipse tenuit per unum annum et unum diem sine clamio quod ipsi apposuerunt.” No judgment. (Placit. Abbrev. p. 76.)

York. Bracton's Treatise. 1250–60.

York. 1226.

Action for dower before justices in eyre. The tenant successfully pleads the following custom;—“et consuetudo civitatis est quod non debet ad tale breve respondere nisi calumpnia inde facta fuit infra annum.” (Bracton's Note Book, pl. 1889.)

I.

De Natura Brevium, Of the Nature of Writs,—such is the title of more than one well-known text-book of our mediæval law. Legal Remedies, Legal Procedure, these are the all-important topics for the student. These being mastered, a knowledge of substantive law will come of itself. Not the nature of rights, but the nature of writs, must be his theme. The scheme of “original writs” is the very skeleton of the Corpus Juris. So thought our forefathers, and in the universe of our law-books, perhaps in the universe of all books, a unique place may be claimed for the Registrum Brevium,—the register of writs current in the English Chancery. It is a book that grew for three centuries and more. We must say that it grew; no other word will describe the process whereby the little book became a big book. In its final form, when it gets into print, it is an organic book; three centuries before, it was an organic book. During these three centuries its size increased twenty-fold, thirty-fold, perhaps fifty-fold; but the new matter has not been just mechanically added to the old, it has been assimilated by the old; old and new became one.

It was first printed in Henry VIII's reign by William Rastell. Rastell's volume contained both the Register of Original Writs and the Register of Judicial Writs. The former is dated in 1531; at the end of the latter we find accurate tidings—“Thus endyth thys booke callyd the Register of the wryttes oryggynall and judiciall, pryntyd at London by William Rastell, and finished the xxviii day of September in the yere of our lorde 1531 and in the xxiii yere of the rayne of our soverayn lord kyng Henry the eyght.” Whether this book was ever issued just as Rastell printed it I do not know; what I have seen is Rastell's book published with a title-page and tables of contents by R. Tottel, in 1553. In 1595 a new edition was published by Jane Yetsweist, and in 1687 another, which calls itself the fourth, was printed by the assigns of Richard and Edward Atkins, together with an Appendix of other writs in use in the Chancery and Theloall's Digest. In 1595 the publisher made a change in the first writ, substituting “Elizabetha Regina” for “Henricus Octavus Rex”; the publisher of 1687 was not at pains to change Elizabeth into James II. In other respects, so far as I can see from a cursory examination of Rastell's book (which I am not fortunate enough to possess), no changes were made; the editions of 1595 and 1687 are reproductions of the volume printed in 1531, and the correspondence between them is almost exactly, though not quite exactly, a correspondence of page for page.

Coke speaks of the Register as “the ancientist book of the law1.” In no sense can we make this Edition: current; Page: [112]saying true. But to ask for its date would be like asking for the date of one of our great cathedrals. In age after age, bishop after bishop has left his mark upon the church; in age after age, chancellor after chancellor has left his mark upon the register. There is work of the twelfth century in it; there is work of the fifteenth century, perhaps of the sixteenth, in it. But even this comparison fails to put before us the full ineptitude of the question, What is the date of this book? No bishop, no architect, however ambitious, could transpose the various parts of the church when once they were built; he could not make the crypt into a triforium; but there was nothing to prevent a reforming chancellor from rearranging the existing writs on a new plan; from taking “Trespass” from the end of the book and thrusting it into the middle. No; to ask for the date of the Register is like asking for the date of English law.

When we take up the book for the first time we may, indeed, be inclined to say that it has no arrangement whatever, or that the principle of arrangement is the principle of pure caprice. But a little examination will convince us that there is more to be said. Every now and again we shall come across clear traces of methodic order, and probably in the end we shall be brought to some classification of the forces which have played upon the book. The following classification may be suggested: (1) Juristic logic; (2) practical convenience; (3) chronology; (4) mechanical chance. Let me explain what I mean. We might expect that the arrangement of such a work would be dictated by formal jurisprudence; we might expect that the main Edition: current; Page: [113]outlines would be those elementary contrasts of which every system of law must take notice,—real, personal—petitory, possessory—contract, tort. Again, knowing something of the English writs, we might expect to find those which begin with “Præcipe” falling into a class by themselves; or, again, to find that those which direct a summons are kept apart from those which direct an attachment; or, again, to find that writs of “Justicies,” i.e., writs directing the sheriff to do justice in the county court, are separated from writs destined to bring the defendant into the king's own courts. Well, in part we may be disappointed; but not altogether: formal jurisprudence has had something to do with the final result, though not so much as might be expected. The printed book begins, and every MS. that I have seen, whether it comes from Henry III's day or Henry VI's, begins with the writ of right. Now, there is logic in this; for whatever actions are “personal,” whatever acts are “possessory,”—and different ages hold different opinions about this matter,—there can be no doubt that the action begun by writ of right is “real” and “petitory” or “droiturel.” Our Register then begins with the purest type of a real and droiturel action. And the logic of jurisprudence has left other marks, especially near the end of the book, where we find Novel Disseisin, Mort d’Ancestor, Cosinage and Writs of Entry, following each other, in what we shall probably call their “natural order.” Still, such logic will not, by any means, explain the whole book. It would be quite safe to defy the student of “general jurisprudence” to Edition: current; Page: [114]find Trespass, or Covenant, or Quare Impedit, by the light of first principles.

Then, again, practical convenience has had its influence. The first twenty-nine folios of the printed Register are taken up by the Writ of Right, and other writs which have generally collected around that writ. Then a new section of the book begins (f. 30-71); it is devoted to writs which the modern jurist would describe as being of the most divers natures; but they all have this in common, that in some way or another they deal with ecclesiastical affairs and the clerical organization. The link between this group and that which it immediately succeeds is (f. 29 b) the Writ of Right of Advowson. It is a Writ of Right; but having once come across the advowson it is convenient to dispose of this matter once and for all, to introduce the Assize of Darrein Presentment, which is thus torn away from the other possessory assizes, the Quare Impedit, the Quare Incumbravit, the Juris Utrum, and so forth. This brings us into contact, if not conflict, with the church courts; so let us treat of Prohibitions to Court Christian, whether these relate to advowsons, land, or chattels, and while we are about it we may as well introduce the De excommunicato capiendo, and so forth; then we shall have done with ecclesiastical affairs. Here, to use the terms that I have ventured to suggest, we see “practical convenience” getting the better of “juristic logic”; or, to put it in other words, matter triumphing over form. But form's turn comes again. We have done with the church; what topic should we turn to next? The answer is, “Waste.” But why waste, of all topics Edition: current; Page: [115]in the world? Because, until the making of a certain statute, duly noticed in our Register, the action of waste was an action on a royal prohibition against waste1. “Prohibition” is the link which joins “waste” to “ecclesiastical affairs.”

Yet another principle has been at work. A section in the middle of the book is devoted to Brevia de Statuto, writs that are founded on comparatively modern statutes. What keeps this group of writs together is neither “form” nor “matter.” but chronology; they are recent writs, for which neither logic nor convenience has found a more appropriate place. In short, we have here an appendix. But it is an appendix in the middle of the book. We can hardly explain its appearance there without glancing at the MSS.; but even without going so far we can still make a guess. When these statutory writs have been disposed of, we almost immediately (f. 196b) come upon what seems a well-marked chasm. Suddenly the Novel Disseisin is introduced, and then for a long while logic reigns, and we work our way through the possessory actions. If we find, as we may find, a MS. which has several blank leaves before the Novel Disseisin, which honours the Novel Disseisin with an unusual display of the illuminator's art, we have made some way towards a solution of the problem. At one time the book was in mechanically separate sections, and the end of one of these sections was a convenient place for a statutory appendix.

After all, however, it is improbable that we shall ever be able to explain in every case why a particular Edition: current; Page: [116]writ is found where it is found, and not elsewhere. The vis inertiæ must be taken into account. Writs collected in the Chancery; now and again an enterprising Chancellor or Master might overhaul the Register, have it recopied, and in some small degree rearranged; but the spirit of a great official establishment, with plenty of routine work, is the spirit of leaving alone; the clerks knew where to find the writs; that was enough.

The MS. materials for the history of the Register are abundant. The Cambridge University Library possesses at least nineteen Registers, some complete, some fragmentary; the number at the British Museum is very large. Over the nineteen Cambridge Registers I have cast my eyes. They are of the most various dates. In speaking about their dates it is necessary to draw some distinctions. In the first place, of course, it is necessary to distinguish between the date of the MS. and the date of the Register that it contains, for sometimes it is plain that a comparatively modern hand has copied an ancient Register. In the second place, as already said, it is useless to ask the date of a Register, or of a particular Register, if thereby we mean to inquire for the date when the several writs contained in it were first issued, or first became current; the various writs were invented in different reigns, in different centuries. The sense that we must give to our inquiry is this: at some time or another the official Register of the Chancery was represented by the MS. now before us; what was that time? It will be seen, however, that the question in this form implies an assumption which we may not be entitled to make,—the assumption that our MS. Edition: current; Page: [117]fairly represents what at some particular moment of time was the official Chancery Register. I have as yet seen no MS. which on its face purported to be an official MS., or a MS. which belonged to the Chancellor or any of his subordinates. In very many cases the copy of the Register is bound up in a collection of statutes and treatises, the property of some lawyer or of some religious house. Often an abbey or priory had one big volume of English law, and in such volumes it is common to find a Registrum Brevium. Such volumes were lent by lawyer to lawyer, by abbey to abbey, for the purpose of being copied, and it is clear that a copyist did not always conceive himself bound to reproduce with mechanical fidelity the work that lay upon his desk. Thus, many clerks are quite content that the names of imaginary plaintiffs and defendants should be represented by A and B, while another will make “John Beneyt” a party to every action, and suppose that all litigation relates to tenements at Knaresborough. We have not to deal with the dull uniformity of printed books; no two MSS. are exactly alike; every copyist puts something of himself into his work, even if it be only his own stupidity. Thus, settling dates is a difficult task. Sometimes, for example, a MS. which gives the Register in what, taken as a whole, seems a comparatively ancient form, will just at a few places betray a knowledge of comparatively modern statutes. Gradually, however, by comparing many MSS., we may be able to form some notion of the order in which, and the times at which, the various writs became recognized members of the Corpus Brevium.

It will be convenient to mention here that one of the most obvious tests of the age of a Register is to be found in the wording of those writs which expressly mention a term of limitation. There are three such writs; namely, the Novel Disseisin, the Mort d’Ancestor, and the De nativo habendo. Now, at the beginning of Henry III's reign (1216), the limiting period for the Novel Disseisin seems to have been the last return of King John from Ireland, but in 1229, or thereabouts, there was a change, and Henry's first coronation at Westminster became the appointed date1; the Mort d’Ancestor was limited to the time which had elapsed since Richard's coronation. The Statute of Merton (1236), or rather, as I think, an ordinance of 5th Feb., 1237, fixed Henry's voyage into Brittany as the period for the Novel Disseisin, and John's last return from Ireland as the period for the Mort d’Ancestor and De Nativo2. Statute of Westminster the First (1275, cap. 39) named for the Novel Disseisin Henry's first voyage into Gascony, for the Mort d’Ancestor and for the De Nativo Henry's coronation3. As no further change was made until Henry VIII's day, this test is Edition: current; Page: [119]applicable only to the very earliest Registers. For Registers of the fourteenth century, however, we can use a somewhat similar criterion; when they mention Henry III, as they call him pater noster, or avus, or proavus noster. But, good though such tests may be, they are by no means infallible. A man copying an already ancient Register might well be tempted to tamper with phrases that were obviously obsolete; and, again, we shall have cause to doubt whether even in the Chancery itself a new statute of limitations always sets the clerks on promptly overhauling their ancient books and making the necessary corrections; great is the force of official laziness. Still, these writs which mention periods of limitation are the parts of the Register which first attract the critics eye.

But there is yet another difficulty. Are we justified in assuming that there always, or ever, was in the Chancery, some one document which bore the stamp of authority, and which was the Register for the time being? I doubt it. The absolutely accurate officialism to which we are accustomed in our own day is, to a large extent, the product of the printing press. The cursitors and masters of the mediæval Chancery had no printed books of precedents. It is highly probable that each of them had his MS. books; that these books were transmitted from master to master, from cursitor to cursitor, and that they differed much from each other in details1. To have prevented them from differing would have been a laborious and a Edition: current; Page: [120]needless task. This thought will be brought home to us by several passages in the printed book. In the first place, it is full of notes and queries: the writer expresses his doubts as to the best way of formulating this or that writ; he tells us what some think, what others think, what some do, and what others do; occasionally he speaks to us in the first person, says credo and je croye, and even points out that this Register differs from other registers1. It is in this way that we may explain the somewhat capricious selection of writs that the printed book presents. It naturally includes all the common forms that are in daily use; but it includes also many forms of a highly specialized kind,—forms which set forth the facts of cases which have happened once, but are by no means likely to happen Edition: current; Page: [121]again. The Chancery undoubtedly had some power in itself to devise such “writs upon the special case”; not unfrequently it was ordered to make a writ suited to the very peculiar circumstances of a case which had been brought before the Council, or before the Parliament, just because none of the common writs would meet it1. Of such “brevia formata “we get a selection, but only a selection. Some are preserved because they will be useful as precedents, others, as it seems to me, because they are curiosities and not likely to form precedents2. In many quarters we see more signs of private enterprise than of official redaction. A considerable number of specially worded writs bear the name of Parning,—a number out of all proportion to the brief two years during which that famous common lawyer held the great seal. He had the good fortune, we may suppose, to have some industrious clerk for an admirer; his predecessors and successors were less lucky3. I greatly Edition: current; Page: [122]doubt, then, whether we have in strictness a right to speak about the Register of a given period, as though there were some one document exclusively or preëminently entitled to that name; rather we should think of the Register as a type to which diverse registers belonging to diverse masters and clerks more or less accurately conformed. About common matters these manuscripts agreed; about rarities and curiosities there was difference, and room for difference. There was no great need for a perfectly stereotyped uniformity; the fact that a writ was penned, and that it passed the seal, was not a fact that altered rights or secured the plaintiff a remedy; it still had to run the gauntlet in court, and might ultimately be quashed as unprecedented and unlawful. It is clear, indeed, that the granting of specially worded writs was regarded as an important matter, which required grave counsel and consideration; the masters were consulted as a body; sometimes it would seem as though the opinion of the justices was taken before the writ issued1. A chancellor, a master, Edition: current; Page: [123]even a cursitor, cannot have liked to see his writs quashed; and, though writs were quashed very freely, as the Year Books witness, still, if I mistake not, it will be found that in most cases the fault lay rather with the plaintiff or his advisers than with the Chancery; he had got an inappropriate writ, but not one that was in any respect contrary to law. Any notion that the Chancery was a Romanizing institution, that the learning of the masters was the learning of civilians, is rudely repelled by the Register. Whatever academic training in Roman and canon law the masters may have had, they were English lawyers daily engaged in watching the development of English law in English courts, in reading the Year Books, and in “writing up” decisions in the margins of their Registers. Still, to return to my point, the granting of a newly worded writ was no judicial act; to grant one which could not be maintained was no act of justice; it might be a very proper experiment.

The Register of which I am speaking is the Register of Original Writs. The printed book contains also a Register of Judicial Writs. The difference between Original Writs and Judicial Writs is generally known. Roughly speaking we may put it thus: An original writ is a writ whereby litigation is commenced; its type Edition: current; Page: [124]is a common writ of trespass or debt, whereby the sheriff is directed to compel the defendant to appear in court and answer the plaintiff; on the other hand, a judicial writ is a writ issued during the course of an action, either before or after judgment; thus, the resummons of one already summoned, a venire facias for jurors, a fieri facias, an elegit,—these may be taken as types of judicial writs. But, in strictness, we are hardly entitled to bring into our definitions any particularization of the character of the writs. The technical distinction seems to have been a simpler one: the original writ issues out of the Chancery, the judicial issues out of a Court of Law; we can say no more. It sometimes happens that the same writ can be obtained in the Chancery or in the Common Pleas; in term time one gets it from the court, in vacation one goes to the Chancery; such a writ will, therefore, have its place in both Registers, the Original and the Judicial1. And very many of the documents which find a place in the former cannot be described as writs originating litigation; they relate to litigation that has been already begun. A tenant in an action begun by writ of right puts himself on the grand assize while yet the action is in the court baron or county court; the writ summoning the electors of the grand assize will issue out of the Chancery, and we must look for it in the Register of Original Writs. The same Register contains numerous writs evoking litigation from the local courts,—writs of pone, certiorari, recordari facias, and so forth. But, further, the fully developed Registrum Brevium Originalium contains great masses of Edition: current; Page: [125]documents which neither originate nor evoke litigation,—pardons, protections, safe-conducts, licenses to elect bishops and abbots, orders for the election of coroners and verderers, letters whereby the king presents a clerk, fiscal writs addressed to the Barons of the Exchequer, writs to escheators, and so forth, in rich abundance; even letters to foreign princes, begging them to do justice to Englishmen, find a place in the collection1. Many of these formulas, it may be, were never known as brevia originalia, and some were not brevia at all; still, it would be very difficult to say where the original writs left off, for a great deal of what we might call fiscal and administrative work was done under quasi-judicial forms, and by the use of quasi-judicial machinery. The Exchequer, according to our ideas, was half law court and half financial bureau. The collection of the revenue, the management of the king's demenses and feudal rights, were carried on by means of writs, inquests, verdicts, very similar to those which determined the rights of litigants. And happy it may be for us that no stricter separation was made between ordinary law and administrative law. Our present point, however, must be merely that all this great mass of miscellaneous matter is collected into the Register of Original Writs, and thus gets mixed up with the formulas of ordinary litigation. The later the MS. of the Register the larger is the proportion which the administrative documents bear to the writs which originate or evoke litigation, and, as we shall see hereafter, the general scheme of the book had become fixed at a time when it was still chiefly made up of writs sub-serving Edition: current; Page: [126]the process of litigation between subject and subject.

These things premised, it may be allowed me to make a few remarks about the early history of the Register.

It is highly probable that so soon as our kings began to interfere habitually with the ordinary course of justice in the communal and feudal courts, and by means of writs to draw matters into their own court, the clerks of the chancery began to collect precedents of such writs, and it well may be that some of the formulas that they used were already of high antiquity1. But the careful reader of Mr Bigelow's Placita will, as I think, be led to doubt whether before the reign of Henry II there was anything that could fairly be called a Registrum Brevium, and the student of Maddox's Exchequer will be inclined to hold that there were no writs that could be obtained “as of course” (de cursu) by application to subordinate officials. Nothing was to be had for nothing; the price of writs was not fixed, and every writ was, in the terms of a later age, “a writ upon the special case.” Before the end of Henry's reign there had been a great change, though the practice of selling royal aid (theoretically it was rather “aid” than “justice” that was sold) was by no means at an end. Already when Glanvill wrote there were many writs drawn up “in common form”; so drawn up, that is, as to cover whole classes of disputes. Let us follow him in his treatment of them. Not impossibly he took them up in the order in which they Edition: current; Page: [127]occurred in an already extant Chancery Register, and, as we shall see hereafter, the arrangement of the Register in much later times conforms, as regards some of its main outlines, to the arrangement of Glanvill's treatise.

In his first book he begins (cap. 6) with the Præcipe quod reddat for land, which he treats as the normal commencement of a petitory action. In the second book we have (cap. 8, 9) the writs of peace granted when a tenant has put himself on the grand assize; then (cap. 11) the writ summoning the electors of the grand assize, and (cap. 15) the writ summoning the recognitors. The third book, on warranty, does not give us any “original” writ. In the fourth book (cap. 2) occurs the Writ of Right of Advowson, the Writ (cap. 8) Quo advocato se tenet in ecclesia; a Prohibition (cap. 13) to ecclesiastical judges against meddling with a cause touching an advowson, and (cap. 14) a summons on breach of such a Prohibition. The fifth book, on serfage, gives us (cap. 2) the De libertate probanda. The sixth book turns to dower, and contains (cap. 5) the Writ of Right of Dower, a writ of Pone (cap. 7) for removing the case from the county court, the Writ (cap. 15) of Dower unde nihil habet, and the Writ (cap. 18) of Admeasurement of Dower. The seventh book, on inheritance or succession, has (cap. 7) the Writ Quod stare facias rationalem divisam, and (cap. 14) the writ to the Bishop, directing an inquiry into bastardy. In the eighth book comes (cap. 4) the Writ de fine tenendo, and several writs (cap. 6, 7, 10), Quod recordari facias, “evocatory writs” we may call them. In the ninth we have (cap. 5) the Writ De Edition: current; Page: [128]homagio capiendo, the Writ of Customs and Services (cap. 9), a writ against a tenant who has encroached upon his lord (cap. 12), and the Writ De rationalibus divisis (cap. 14). The tenth book gives us the Writ of Debt (cap. 2), the Writ De plegio acquietando (cap. 4), a writ for a mortgage creditor calling on the debtor to pay (cap. 7), a writ calling on the mortgagee to render up the land (cap. 9), a writ calling in the warrantor of a chattel (cap. 16). From the eleventh book we gather only a writ announcing the appointment of an attorney. In the twelfth book we come to the Writs of Rights, strictly so called (brevia de recto tenendo), and a number of writs empowering the sheriff to do justice; namely, the Ne injuste vexes (cap. 10), the De nativo habendo (cap. 11), a Writ of Replevin (cap. 12, 15), a Writ of Admeasurement of Pasture (cap. 13), a Quod permittat for easements (cap. 14), a Writ De rationalibus divisis (cap. 16), a Writ Quod facias tenere divisam (cap. 17), a Writ of Justicies for the return of chattels unlawfully taken by a disseisor, and a few other miscellaneous writs, including a Prohibition to Court Christian against meddling with lay fee. In the thirteenth book come the possessory assizes. The fifteenth gives a hasty sketch of criminal business.

Glanvill's scheme of the law, or rather his scheme of royal justice, might, as it seems to me, be displayed by some such string of catchwords as the following: “Right” (i.e., proprietary right in land), “Church,” “Liberty,” “Dower,” “Inheritance” or “Succession,” “Actions on Fines,” “Lord and Tenant,” “Debt,” “Attorney,” “Justice to be done by feudal lords and sheriffs,” “Possession,” “Crime.” Now, some of the Edition: current; Page: [129]main lines of this “legalis ordo,” if I may use that term, keep constantly reappearing in the later history of the Register. At all events, two poles are fixed,—the terminus a quo, the terminus ad quem; we are to begin with “Right”; to end with “Possession.” The reappearance of this scheme in the Register of later days is the more remarkable, because Bracton did not adopt it; as is well known, he begins with “Possession,” and ends with “Right.” We may make a further remark, which will be of use to us hereafter. Glanvill's twelfth book is most miscellaneous, and at one point resolves itself into a string of writs, which are given without note or comment. The idea which keeps the book together is that of justice done, not by the King's court, but by lords and sheriffs, in pursuance of royal writs. Such a tie is likely to be broken in course of time. Thus, the “Writ of Right Patent,” the writ commanding a lord to entertain a proprietary action, is likely to find its proper place by the side of the Præcipe quod reddat, especially when Magna Charta has sanctioned the rule that a Præcipe is only to be issued when the tenant holds immediately of the king1. And so, again, the writs commanding the sheriff to do justice, writs of “Justicies,” or “Justifices,” will hardly be kept together by this bond; but in course of time, Edition: current; Page: [130]as the king's own court extends, its sphere will fall into various subordinate places; thus, for example, “Debt by Justicies in the county court” will become an appendix or a preface to “Debt in the Bench.”

The arrangement of Glanvill's book is, however, sufficiently well known, and therefore, without further reflection upon it, I will pass on to describe the earliest Registrum Brevium that I have seen. Happily it is one to which we can affix a precise date, namely, the 10th of November, 1227. It is found in a MS. at the British Museum (Cotton, Julius D., II, f. 143 b),—a book that once belonged to the monks of St Augustine's, Canterbury. It forms a schedule annexed to a writ of Henry III, bearing the date just given, and directed to the people of Ireland. That writ recites that the king desires that justice be done in Ireland according to the custom of his realm of England, and states that for this purpose he is sending a formulary of the writs of course (formam brevium de cursu), and wills that they be used in the cases to which they are applicable. The writ was issued at Canterbury, and to this fact we probably owe its lucky preservation in a Canterbury book. The Register that it gives is about forty years younger than Glanvill's treatise, and affords the means of measuring the growth of law during an important period,—the period of the Great Charter. I will briefly describe its contents.

It begins with three Writs of Right (1, 2, 3), and we learn that these writs can only be had “sine dono“; that is, without payment, when the land demanded is but half a knight's fee or less, or the service due from it does not exceed 100 shillings, or, being a burgage Edition: current; Page: [131]tenement, the rent or the value of the buildings does not exceed 40 shillings a year. Then follows (4) the Præcipe in capite. Then (5) the Novel Disseisin, the period of limitation being stated as “post ultimam transfretacionem nostram de Hibernia in Angliam1“; and as an appendix to this we have (6) the Novel Disseisin of Common, and (7) the Assize of Nuisance, with variations. Next comes (8) the Mort d’Ancestor; the period of limitation is said to be postquam coronacionem H. patris nostri2. Then come (9) the assize of Darrein Presentment, (10) Prohibition to the bishop against admitting a parson, (11) Writ ordering a bishop to disencumber the church when he has admitted a parson contrary to such Prohibition, (12) Mandamus to a bishop to admit a presentee, (13) Writ of Right of Advowson, (14) Prohibition to ecclesiastical judges, (15) Writ against ecclesiastical judges who have disobeyed the Prohibition. This ecclesiastical group being finished, we find next (16) the Writ of Peace for a tenant who has put himself on the grand assize, and (17) a writ for the election of the grand assize. And here we have an interesting note: “Et notandum quod in hac assisa non ponuntur nisi milites et debent jurare Edition: current; Page: [132]precise quod veritatem dicent non audito illo verbo quod in aliis recognitionibus dicitur scilicet a se nescienter.” Unless I am traducing the copyist, something must have gone wrong with these last words. They were French, but he took them for Latin. In the grand assize the recognitor must swear, in an unqualified way, that he will tell the truth; while in all other recognitions he may add “a son ascient”; that is, “according to his knowledge.” A small group of writs relating to dower (18, 19, 20) come next. Then follows (21) the Juris Utrum, which, it is remarked, lies either for the clerk or for the layman1. Next (22) comes the Attaint which can be brought against recognitors of Novel Disseisin, Mort d’Ancestor, Darrein Presentment, but not against the recognitors of the Grand Assize. Then (23) we have an action on a fine, “Præcipe A. quod teneat finem,” and (24) the action of Warrantia Cartæ. Writs of Entry are represented by but two specimens: the first is (25) Entry ad terminum qui præteriit, the second (26) is Cui in vita. Then we find (27) quod capiat homagium, (28) writs for sending knights to view an essoinee, and (29) to hear a sick man appoint an attorney. On these follow (30) the De nativo habendo, (31) the De libertate probanda, (32) the De rationabilibus divisis, and (33) the De superoneracione pasturæ. We pass to criminal matters, and get (34) the writ to attach an appellee to answer for robbery, rape, or arson, with a note that in case of homicide the appellee is to be attached, not by gage and pledge, Edition: current; Page: [133]but by his body; as a sequel to this comes (35) the De homine replegiando. We return to civil matters, and find (36) the Writ of Services and Customs, and (37) the Ne injuste vexes. Then comes (38) Debt and Detinue. The only writ that falls under this head is a Justicies, and not, like Glanvill's Writ of Debt, a Præcipe; and there is this further difference, that the remarkable words, “et unde queritur quod ipse ei injuste deforciat,” which occur in Glanvill's writ, and make it look so very like a Writ of Right, have disappeared. The supposed debt in the Irish Register is one of 20 shillings, and we have this important note: “In the same fashion a writ is made for a charter, ‘quam ei commisit,’ or for a horse or for chattels to the value of 40 shillings, ‘sine dono’ [i.e., without any payment to the king], for if the debt or price exceeds 40 shillings the words must be added: ‘accepta ab eo [the plaintiff] securitate de tercia parte de primis denariis ad opus Regis.’” In Ireland, at all events, the king will only become a collector of debts for the modest commission of 33 1/3 per cent.

To this succeeds (39) a Prohibition to ecclesiastical judges against dealing with lay fee, and (40) a writ to compel them to answer for breach of such a prohibition. Next occurs (41) a writ directing the sheriff not to suffer an infant to be impleaded, and (42) a Recordari facias applicable to a case in which a tenant has vouched an infant. Then we have (43) a Justicies de plegio acquietando for a debt of forty shillings or less; “non habebit ultra xl. sol. sine dono.” Then comes (44) a writ forbidding the sheriff to distrain R., or permit him to be distrained, to render ten marks to N., for which he is neither principal debtor, nor pledge; but “this writ does Edition: current; Page: [134]not run in privileged cities, or where the debtor is the king's debtor.” Another writ (45) forbids the sheriff to distrain R. for money promised to the king “for right or record,” i.e. for money promised in consideration of the king's aid in litigation, if, without his own default, he has not got what he stipulated for. Another writ (46) forbids the sheriff to distrain a surety when the principal debtor can pay; but this writ is not to be issued when the debt is one that is due to the king. Then (47) comes a writ of Mesne by way of Justicies, and (48) the De excommunicato capiendo. Upon this follows (49) covenant “si quis conventionem fecerit alibi quam in curia domini Regis cum vicino suo qui eam infringere voluerit de aliqua terra vel tenemento ad terminum si exitus illius tenementi non excesserint per annum xl. solidos“; the writ is a Justicies “quod teneat conventionem.” We have then (50) a Writ of Dower, and (51) a Writ of Waste against a dowager. Miscellaneous writs follow: (52) a Venire facias for an assize; (53) a Pone ad peticionem petentis; (54) a summons for a warrantor; (55) a writ to inquire of the bishop touching the marriage of a woman claiming dower; (56) a writ directing a view of the land demanded.

So ends the Irish Register, an important document. It brings out very forcibly the king's position as a vendor of justice, or rather, as we have said, of “aid.” We must, as it seems to me, believe, until the contrary be shown, that we have here a fairly correct representation of the writs that were current in England in 1227; the writs that were “of course” and to be had at fixed prices; but some may have been omitted as inapplicable to Ireland.

Before making further comments, let us turn to an English Registrum, which, so far as I can judge, must be of very nearly the same date as this Irish Registrum. It is found in a Cambridge MS. (li. vi. 13), and may, I think, be safely ascribed to the early years of Henry III's long reign; for I can see no trace in it of the Statute of Merton. The book contains a copy of Glanvill's treatise, which is followed by a Registrum, and of this we will note the contents. I add references to Glanvill's treatise, and to the Irish Register; the latter of these I will designate by the symbol “Hib.” while the Cambridge MS., now under consideration, I shall hereafter refer to as CA.

• 1. Writ of right addressed “Roberto de Nevill”; with several variations. (Glanv. XII. 2; Hib. 1.)
• 2. Writ of right “de rationabili parte.” (Glanv. XII. 5.)
• 3. Præcipe in capite. (Glanv. I. 6; Hib. 4.)
• 4. Pone; this will only be granted to a tenant “aliqua ratione precisa vel de majori gratia.” (Hib. 53.)
• 5. Writs of peace when tenant has put himself on grand assize. (Glanv. II. 8, 9; Hib. 16.)
• 6. Writ summoning electors of grand assize, “et nota quod in hac assisa non ponuntur nisi milites et precise jurare debent.” (Glanv. II. 11; Hib. 17.)
• 7. De recordo et judicio habendo.
• 8. Procedendo in writ of right.
• 9. Respite of writ of right so long as tenant is “in servicio nostro in Pictavia vel in Wallia cum equis et armis per preceptum nostrum.” Respites (Hib. 41) where a tenant or vouchee is an infant.
• 10. Warrantia cartæ. (Hib. 24.)
• 11. Entry “ad terminum qui preteriit.” (Cf. Glanv. x. 9; Hib. 25.)
• 12. Entry “cui in vita.” (Hib. 26.)
• 13. De homagio capiendo. (Glanv. IX. 5; Hib. 27.)
• Edition: current; Page: [136]14. Novel disseisin1; limitation “post ultimum reditum domini J. patris nostri de Hybernia in Angliam.” (Glanv. XIII. 33; Hib. 5.)
• 15. Novel disseisin of pasture; same limitation. (Glanv. XIII. 37; Hib. 6.)
• 16. Mort d’Ancestor2; limitation “post primam coronacionem R. Regis avunculi nostri.” (Glanv. XIII. 3, 4; Hib. 8.)
• 17. De nativo habendo²¹; same limitation. (Glanv. XII. 2; Hib. 30.)
• 18. De libertate probanda. (Glanv. V. 2; Hib. 31.)
• 19. De rationabilibus divisis. (Glanv. IX. 14; Hib. 32.)
• 20. De superoneratione pasturæ. (Hib. 33.)
• 21. Replevin. (Glanv. XII. 12, 15.)
• 22. De pace regis infracta; writ to attach appellee by gage and pledge in case of robbery or rape. (Hib. 34.)
• 23. De morte hominis; writ to attach appellee by his body. (Hib. 34.)
• 24. De homine replegiando. (Hib. 35.)
• 25. Services and customs; a “justicies.” (Glanv. IX. 9; Hib. 36.)
• 26. Ne injuste vexes. (Glanv. XII. 10; Hib. 27.)
• 27. Debt; a “justicies“; “reddat B. x. sol. quos ei debet ut dicit, vel cartam quam ei commisit custodiendam.” (Glanv. X. 2; cf. XII. 18; Hib. 38.)
• 28. Prohibition to ecclesiastical judges against entertaining a suit touching a lay fee. (Glanv. XII. 21; Hib. 39.)
• 29. Similar prohibition to the litigant. (Glanv. XII. 22.)
• 30. Prohibition in case of debt or chattels, “nisi sint de testamento vel matrimonio.”
• 31. Attachment for breach of prohibition. (Hib. 40.)
• 32. De plegiis acquietandis. (Glanv. X. 4; Hib. 43.) Also (32 a) a writ forbidding the sheriff to distrain the surety while the principal debtor can pay. (Hib. 46.)
• 33. Mesne. (Hib. 47.)
• 34. Aid to knight lord's son or marry his daughter.
• 35. De excommunicato capiendo. (Hib. 48.)
• 36. Covenant; justicies; “de x. acris terre.” (Hib. 49.)
• Edition: current; Page: [137]37. Writ announcing appointment of attorney.
• 38. Writ to send knights to hear sick man appoint attorney. (Hib. 29.)
• 39. Writ sending knights to view essoinee. (Hib. 28.)
• 40. Darrein presentment. (Glanv. XIII. 19; Hib. 9.)
• 41. Prohibition in case touching advowson. (Glanv. IV. 13; Hib. 14.)
• 42. Writ of right of advowson. (Glanv. IV. 2; Hib. 13.)
• 43. Writ to bishop for admission of presentee. (Hib. 12.)
• 44. Quare incumbravit. (Hib. 11.)
• 45. Attachment for breach of prohibition. (Glanv. IV. 14; Hib. 11.)
• 46. Dower “unde nihil habet.” (Glanv. VI. 15; Hib. 18.)
• 47. Dower “de assensu patris.” (Hib. 19.)
• 48. Dower in London.
• 49. Juris utrum. (Glanv. XIII. 24; Hib. 20.)
• 50. Attaint; the assize was taken “apud Norwicum coram H. de Bargo, justiciario nostro1.” (Hib. 22.)
• 51. De fine tenendo; the fine made “tempore domini J. patris nostri.” (Glanv. VIII. 6; Hib. 23.)
• 52. Quare impedit.
• 53. Writ of right of ward in socage.
• 54. Writ of right of ward in chivalry.
• 55. Assize of nuisance; vicontiel or “little” writ of nuisance; limitation “post ultimum reditum domini J. Regis patris nostri de Hybernia in Angliam.” (Cf. Glanv. XIII. 35, 36; Hib. 7.)
• 56. Ne vexes abbatem contra libertates.
• 57. Quod permittat for estovers; a justicies.
• 58. Quod faciat sectam ad hundridum vel molendinum.

II.

In a former number of this Review I have been permitted to draw attention to some materials for the early history of our common law which have been too long neglected, namely, ancient Registers of Original Writs. I then described two such Registers. One of them (which I refer to as Hib.) seems to be the Register that was sent to Ireland by royal order in 1227; while the other (which I call CA.) seems to be of almost even date, to be, that is, some forty years younger than Glanvill's, some thirty years older than Bracton's, treatise.

When we compare these two Registers together, the first remark that occurs to us is, that in substance they are very similar, while in arrangement they are dissimilar. From this we may draw the inference that the official Register in the Chancery had not yet crystallized; or, to put the matter in another way, that very possibly different officers in the Chancery had copies which differed from each other. Indeed, the official Register of the time may not have taken the shape of a book, but may have consisted of a number of small strips of parchment filed together and easily transposed. There is a certain agreement between them even in arrangement. Both have “Right” in the forefront, and occasionally give us the same writs in the same order. One instance of such correspondence is worthy of note, for it will become of interest to us hereafter. The following seems to be, for some reason or another, an established sequence: De nativo habendo, Edition: current; Page: [139]De libertate probanda, De rationalibus divisis, De superoneratione pasturæ, Replevin, De pace regis infracta (writs for the arrest or attachment of appellees), De homine replegiando, Services and Customs. Traces of this sequence will be found even when the Register, having increased in bulk fifty times over, gets printed in the Tudor days. The writs are arranging themselves in groups: a Writ of Right cluster, an Ecclesiastical cluster, a Liberty and Replevin cluster. But many questions are very open. Shall the Writs of Entry precede or follow the Assizes? Shall they be deemed proprietary or possessory?

Taking our two Registers together, we can form an idea of the writs which were “of course” in the early years of Henry III; and these we may contrast with the writs which Glanvill gives us from the last years of Henry II. On the whole, we can record a distinct advance of royal justice; but there have been checks and retrogressions. The Writ of Right, properly so called, the Breve de recto tenendo, which commands the feudal lord to do justice, has taken the place of the simple Precipe quod reddat as the normal commencement of a proprietary action for land. This is a victory of feudalism consecrated by the Great Charter. Again, in Glanvill's day the jurisdiction over testamentary causes had not yet finally lapsed into the hands of the church; twice (VII. 7, XII. 17) he gives us a writ (quod stare facias rationabilem divisam) whereby the sheriff is directed to uphold the will of a testator. This writ we miss in the Registers; the state has had to retreat before the church. We are so apt to believe that in the history of the law all has been for the best, that it is Edition: current; Page: [140]well for us to notice this unfortunate defeat,—for unfortunate it assuredly was, and to this day we suffer the evil consequences which followed from the abandonment by the king's courts of all claim to interfere with the distribution of a dead man's chattels. On the other hand, we see that the triumph of feudalism is more apparent than real; it has barred the high road, but royal justice is making a flank march. Glanvill (x., 9) has a writ which lies for a mortgagor against a mortgagee; or rather, we ought to say for a gagor against a gagee, when the term for which the land was gaged has expired. The alteration of a few words in this will turn it into a writ of entry ad terminum qui præteriit1. Such a writ of entry is given by our two Registers, and they also give the writ cui in vita applicable for the recovery of land alienated by a married woman. Curiously enough they do not give the writ of entry sur disseisin; though we happen to know that already in 1205 this writ, lying for a disseisee against the heir of the disseisor, had been made a writ of course2. This is by no means the only sign that the copies of the Register which got into circulation did not always contain the newest improvements. Still, here we see that a foundation has been laid for that intricate structure Edition: current; Page: [141]of writs of entry which will soon be reared. It is very doubtful whether Glanvill knew the procedure by way of attaint for reversing the false verdict of a petty assize; but we find this securely established in our Registers.

Another noteworthy advance is to be seen in the actions which we may call contractual. The Warrantia Cartæ is in use, and so is the Writ of Covenant. We may doubt whether there is as yet any writ as of course which will enforce a covenant not touching land. The typical covenant of the time is what we should call a lease; but Glanvill (x. 8) told us that the king's court was not in the habit of enforcing “privatas conventiones “agreements, that is, not made in its presence and unaccompanied by delivery of possession. Debt and Detinue are still provided for chiefly by writs of Justicies, directing trial in the county court. “Debt in the Bench” seems, as yet, no writ of course, and the Irish Register shows us that, at least across St George's Channel, one had to pay heavily even for a Justicies. The excuse for such exaction, of course, was that no writ was necessary for the recovery of a debt in a local court; royal interference was a luxury. Lastly, we will notice that, as yet, we hear nothing of Account and nothing of Trespass.

The next Register that I shall put in is found in a Cambridge MS. I shall hereafter refer to it as CB. (kk., v. 33). Like the last, it is bound up with a Glanvill, and this, I may remark, is in favour of its antiquity. Edwardian Registers are generally accompanied, not by Glanvill, but by Hengham, or Fet Assavoir or Statutes. On the whole, we may, as I Edition: current; Page: [142]believe, safely attribute this specimen to the middle part of Henry III's reign, to the period between the Statute of Merton (1236) and the Statute of Marlborough (1267), and I am inclined to think it older than the Provisions of Westminster (1259). In the following notes of its contents I will give references to the “Pre-Mertonian” Register CA., which I described on a former occasion:—

“Incipiunt Brevia de Causa Regali.”

• 1. Writ of right with many variations. (CA. 1.)
• 2. Writ of right de rationabili parte. (CA. 2.)
• 3. Ne injuste vexes. (CA. 26.)
• 4. Præcipe in capite. (CA. 3.)
• 5. Little writ of right secundum consuetudinem manerii.
• 6. Writs of peace when tenant has put himself on grand assize. (CA. 5.)
• 7. Writ summoning electors of grand assize, with variations. (CA. 6.)
• 8. 1Writ of peace when tenant of gavelkind has put himself on a jury in lieu of grand assize, and writ for the election of such a jury.
• 9. Pone in an action begun by a writ of right. (CA. 4.)
• 10. 2Mort d’ancestor, with limitation “post primam coronacionem Ricardi avunculi nostri.” (CA. 16.)
• 11. Quod permittat for pasture in the nature of Mort d’ancestor, with a variation for a partible inheritance.
• 12. Nuper obiit.
• 13. 3Novel Disseisin, with limitations “post ultimum reditum J. Regis patris nostri de Hibernia in Angliam.” (CA. 14.) Novel Disseisin of pasture. (CA. 15.)
• Edition: current; Page: [143]14. 1Assizes of Nuisance: some being vicontiel, with limitation “post primam transfretacionem nostram in Britanniam.” (CA. 55.)
• 15. Surcharge of pasture. (CA. 20.)
• 16. Quo jure for pasture.
• 17. Attaint in Mort d’ancestor and Novel Disseisin. (CA. 50.)
• 18. Perambulation of boundaries.
• 19. 2Writ of Escheat: claimant being entitled under a fine which limited land to husband and wife and the heirs of their bodies, the husband and wife having died without issue.
• 20. Darrein presentment. (CA. 40.)
• 21. Writ of right of advowson. (CA. 42.) A curious variation ordering a lord to do right touching an advowson; the writ is marked “alio modo sed raro.”
• 22. Quare impedit. (CA. 52.)
• 23. Prohibition to Court Christian touching advowson. (CA. 41.)
• 24. Attachment against judges for breach of such prohibition. (B. 45.)
• 25. Ne admittas personam.
• 26. Mandamus to admit parson. (CA. 43.)
• 27. Dower unde nihil habet. (CA. 46.)
• 28. Dower ad ostium ecclesiæ.
• 29. Dower in London. (CA. 48.)
• 30. Dower against deforceor.
• 31. Writ of right of dower.
• 32. Warrantia cartæ. (CA. 10.)
• 33. De fine tenendo: a fine has been made “tempore J. Regis patris nostri.” (CA. 51.)
• 34. Juris utrum for the parson. (CA. 49.)
• 35. Juris utrum for the layman. (CA. 49.)
• 36. Entry, the tenant having come to the land per a villan of the demandant.
• 37. Entry ad terminum qui preteriit: the tenant having come to the land per the original lessee. (CA. 11.)
• Edition: current; Page: [144]38. Entry, the tenant having come to the land per one who was guardian.
• 39. Entry cui in vita. (CA. 12.)
• 40. Entry, the land having been alienated by dowager's second husband.
• 41. Entry sur intrusion.
• 42. Entry ad terminum qui preteriit for an abbot, the demise having been made by his predecessor.
• 43. Entry sine assensu capituli.
• 44. Escheat on death of bastard.
• 45. Entry sur disseisin for heir of disseisee, the defendant being the disseisor's heir.
• 46. Entry when the land has been given in maritagium.
• 47. Entry for lord against guardians of tenant in socage who are holding over after their ward's death without heir.
• 48. Entry for reversioner under a fine.
• 49. Writ of intrusion.
• 50. Quod capiat homagium. (CA. 13.)
• 51. False imprisonment: “ostensurus quare predictum A. imprisonavit contra pacem nostram.”
• 52. Robbery and rape: “ostensurus de robberia et pace nostra fracta, vel de raptu unde eum appellat.” (CA. 22.)
• 53. Homicide: “attachiari facias B. per corpus suum responsurus A. de morte fratris sui unde eum appellat.” (CA. 23.)
• 54. De homine replegiando. (CA. 24.)
• 55. De plegiis acquietandis: “justifices talem quod ...acquietet talem.” (B. 32.)
• 56. De plegio non stringendo pro debito: do not distrain pledge while principal debtor can pay. (CA. 32 a.)
• 57. Quod permittat for estovers: “justifices A. quod...permittat B. rationabilem estoverium suum in bosco suo quod in eo habere debet et solet.” Variation for right to fish: “justifices A. quod permittat B. piscariam in aqua tali quam in eadem habere debet et solet.” (CA. 57.)
• 58. Debt: “justifices A. quod...reddat B. xij. marcas quas ei debet,” vel “catallum ad valenciam xii. marcarum quas (sic) ei injuste detinet sicut racionabiliter monstrare poterit quod ei debeat, ne amplius,” etc. (CA. 27.)
• Edition: current; Page: [145]59. Debt and Detinue before the king's justices. “Precipe A. quod...reddat B. xij. marcas quas ei debet et injuste detinet vel catallum ad valenciam x. marcarum quod ei detinet, et nisi fecerit...summone ...quod sit coram justiciariis nostris...ostensurus quare non fecerit.”
• 60. Replevin. (CA. 21.)
• 61. Suit to mill: “justifices A. quod faciat B. sectam ad molendinum...quam facere debet et solet.” (CA. 58.)
• 62. Customs and services: “non permittas quod A. distringat B. ad faciendum sectam...vel alias consuetudines et servicia que de jure non debet nec solet.”
• 63. Customs and services: sheriff is not to distrain B. for undue suit to county or hundred court, etc.
• 64. Customs and services: “justifices A. quod...faciat B. consuetudines et recta servicia, que ei facere debet,” etc. (CA. 25.)
• 65. Customs and services, by precipe: “precipe A. quod faciat B. consuetudines et recta servicia.”
• 66. Waste: “non permittas quod A. faciat vastum...de domibus...quas habet in custodia, vel quas tenet in dotem,” etc.
• 67. Waste: attach A. to answer at Westminster why he or she has wasted tenements held in guardianship or in dower, “contra prohibicionem nostram.” (Hib. 51.)
• 68. 1 De nativo habendo: let A. have B. and C. his “natives” and fugitives who fled since the last return of our father King John from Ireland. (CA. 17.)
• 69. De libertate probanda. (CA. 18.)
• 70. De racionabilibus divisis. (CA. 19.)
• 71. De recordo et racionabili judicio. Let A. have record and reasonable judgment in your county court in a writ of right. (CA. 7.)
• 72. Annuity: “justifices A. quod...reddat B. x. sol. quos ei retro sunt de annuo redditu,” etc.
• 73. Ne vexes. Do not vex, or permit to be vexed, A. or his men contrary to the liberties that he has by our or our ancestor's charter, which liberties he has used until now. (CA. 56.)
• 74. Wardship in socage: “justifices A. quod...reddat B. custodiam terre et heredis C.,” etc. (CA. 53.)
• Edition: current; Page: [146]75. Wardship in chivalry, the guardian claiming the land: “justifices,” etc. Variation when the guardian is claiming the heir's person. (CA. 54.)
• 76. Aid to knight son or marry daughter: “facias habere A. racionabile auxilium.” (CA. 34.)
• 77. Covenant: “justifices A. quod...convencionem...de tanto terre.” (CA. 36.)
• 78. Sheriff to aid in distraining villans to do their services.
• 79. Prohibition against impleading A. without the king's writ. “R. vic. sal. Precipimus tibi quod non implacites nec implacitari permittas A. de libero tenemento suo in tali villa sine precepto nostro vel capitalis nostri justiciarii.”
• 80. Ne quis implacitetur qui vocat warrantum qui infra aetatem est. (CA. 9.)
• 81. Ne quis implacitetur qui infra aetatem est. (CA. 9.)
• 82. Quod permittat: “justifices A. quod...permittat B. habere quendam cheminum,” etc., vel “habere porcos suos ad liberam pessonam,” etc.
• 83. Account: “justifices talem quod...reddat tali racionabilem compotum suum de tempore quo fuit ballivus suus,” etc.
• 84. Mesne: “justifices A. quod...acquietet B. de servicio quod C. exigit ab eo...unde B. qui medius est,” etc. (CA. 33.)
• 85. De excommunicatis capiendis. (CA. 35.)
• 86. Prohibition to ecclesiastical judges against holding plea of chattels or debt “nisi sint de testamento vel matrimonio.” (CA. 30.)
• 87. Prohibition to the party in like case.
• 88. Attachment on breach of prohibition. (CA. 31.)
• 89. Prohibition in cases touching lay fee. (CA. 28.)
• 90. Recordari facias, a plea by writ of right in your county court.
• 91. 1Quare ejecit infra terminum. Breve de termino qui non preteriit factum per W. de Ralee: “Si A. fecerit te securum, etc....summone, etc., B. etc., ostensurus quare deforciat A. tantum terre...quam D. ei demisit ad terminum qui nondum preteriit infra quem Edition: current; Page: [147]terminum predictus (D) terram illam predicto B. vendidit occasione cujus vendicionis predictus B. ipsum A. de terra illa ejecit ut dicit,” etc.
• 92. 1“Breve novum factum de communi assensu regni ubi de morte antecessorum deficit.” This is the writ of cosinage.
• 93. De ventre inspiciendo.
• 94. 2“Novum breve factum per W. de Ralee de redisseisina super disseisinam et est de cursu.” Sheriff and coroners are to go to the land and hold an inquest, and if they find a redisseisor to imprison him.
• 95. 3“Novum breve factum per eundem W. de averiis captis et est de cursu.” After a replevin and pending the plea, the distrainor has distrained again for the same cause...”predictum A. ita per misericordiam castiges quod castigacio illa in casu consimili timorem prebeat aliis delinquendi.”
• 96. “De attornato faciendo in comitatibus, hundredis, wapentachiis de loquelis motis sine breve Regis.” A writ founded on cap. 10 of the Statute of Merton. Variation when the suit was due to a court baron.
• 97. Prohibition to ecclesiastical judges in a suit touching tithes.
• 98. Writ directing the reception of an attorney in an action. (CA. 37.)
• 99. Precipe in capite. (CA. 3.)
• 100. Writs directing sheriff to send knights to view an essoinee and hear appointment of attorney. (CA. 38, 39.)
• 101. Writ to the bishop directing an inquest of bastardy, the plea being one of “general bastardy.”
• 102. Writ of entry sur disseisin, the defendant having come to the land per the disseisor.
• 103. Quod permittat for common by heir of one who died seised.
• 104. Quare duxit uxorem sine licencia. Quare permisit se maritari sine licencia.
• 105. 4Monstraverunt, for men of ancient demesne.
• Edition: current; Page: [148]106. Removal of plea from court baron into county court on default of justice.
• 107. Surcharge of pasture; “summone...B. quod sit...ostensurus quare superhonerat pasturam.” (CA. 20.)
• 108. Patent appointing justices to take an assise.
• 109. Prohibition to ecclesiastical judges against entertaining a cause in which B. (who has been convicted of disseising A.) complains that A. has “defamed his person and estate.”
• 110. De odio et hatia.
• 111. Writ of extent. Inquire how much land A. held of us in capite.
• 112. Mainprise, where inquest de odio et hatia has found for the prisoner.
• 113. Writ of seisin for an heir whose homage the king has taken.
• 114. Writ of inquiry as to whether the king has had his year and a day of a felon's land.
• 115. Warrancia diei, sent to the justices.
• 116. Extent of land of one who owes money to the Jews.
• 117. Prohibition against prosecuting a suit touching advowson in Court Christian.
• 118. Writ to bishop directing an inquiry when bastardy has been specially pleaded: “inquiras utrum A. natus fuit ante matrimonium vel post.”
• 119. Writ announcing pardon of flight and outlawry.
• 120. Writ permitting essoinee to leave his bed. Dated A. R. 33.
• 121. Abbot of N. has been enfeoffed in N. by several lords who did several suits to the hundred court. You, the sheriff, are not to distrain the abbot for more suits than one “quia non est moris vel juri consonum quod cum plures hereditates in unicum heredem descenderint vel per acquisicionem aliquis possideat diversa tenementa quod pro illis hereditatibus aut tenementis diversis, ad unicam curiam fiant secta diversa.” Dated A. R. 431.

Our first observation would be, that the Register has quite doubled in bulk since we last saw it; and our second should, as I think, be, that chronology has had something to do with the arrangement of the specimen that is now before us. The last two formulas are dated, and probably constituted no part of the Register that was copied, but were added to it, having been transcribed from writs lately issued. But leaving these two last formulas out of sight, I think that the last thirty writs or thereabouts are, for the most part, new writs tacked on by way of appendix to the older Register. The line might be drawn between No. 90 and No. 91. The latter of these, the very important Quare ejecit infra terminum, is expressly ascribed to William Raleigh, Bracton's master, whose judicial activity came to an end in 1239. Then, No. 92, the Writ of Cosinage, is “breve novum,” and we know that this was conceded by a council of magnates in 1237, and was penned by Raleigh1. Then again, No. 94 is attributed to Raleigh. It is the Writ of Redisseisin, given by the Statute of Merton. The last of this group of “Actiones Raleghanæ” (if I may use that term) deals with the recaption of a distress pending the action of replevin; in spirit it is allied to the Redisseisin2. The next writ, No. 96, is given by the Statute of Merton. The prohibition in tithe suits, No. 97, is the centre of a burning question; Edition: current; Page: [150]and so is No. 118, the writ directing the bishop to say whether a child was born before or after the marriage of its parents. One may be surprised to find this writ at all, after the flat refusal of the bishops given at the Merton Parliament. Of the other writs in this part of the Registrum, we may, I think, say that they form an appendix, and are not too carefully made, since some of them appeared in the earlier part of the formulary. Others may be writs newly invented, or old writs that have only of late become “writs of course.” The Monstraverunt for men of ancient demesne, a writ of critical importance in the history of the English peasantry, is no new thing; but very possibly, until lately, it could not be obtained until the matter had been brought under the king's own eye, or at least his chancellor's eye. The same may, perhaps, be said of the equally important De odio et hatia.

In the next place, we see one of the causes at work, which, in the course of time, swells the Register of Original Writs to its great bulk. A group of what we may call fiscal or administrative writs have obtained admission among the writs by which litigation is begun. At present it is small; it includes two writs for “extending” land, and a writ directing livery to an heir whose homage the king has taken; in course of time it will become large.

But turning to the formulas of litigation, we see already a large variety of writs of entry; though as yet the tale is not complete for writs “in the post “have not yet been devised, and would perhaps be resented by the feudal lords. The Assize of Mort d’Ancestor is now supplemented by Nuper obiit and Cosinage. We Edition: current; Page: [151]see signs of growth in the department of Waste. We have something very like a Formedon. Annuity and Account have been added to the list of personal actions, but Trespass is yet lacking.

A few words about Trespass: The MS. registers that I have seen, fully bear out the opinion that has been formed on other evidence as to the comparatively recent origin of this action1. Glanvill has nothing that can fairly be called a writ of Trespass. His nearest approach to such a writ is “Justicies,” ordering the sheriff to compel the return of chattels taken “unjustly and without judgment”; but the chattels have been taken in the course of a disseisin, and the plaintiff has already succeeded in an Assize2. In later days we do not find this writ; its object seems to have been obtained by the practice of giving damages in the Assize3. But already, in John's reign, we find a few actions which we may call actions of trespass. In some of these, where there has been asportation or imprisonment, the true cause of action in the royal court seems to be that which our forefathers knew as the “ve de naam”; “vetitum naami”; the refusal to deliver chattels or imprisoned persons upon the offer of a gage and Edition: current; Page: [152]pledge,—a cause of action which had definitely become a plea of the crown1. Also, it is in some instances a little difficult to distinguish an action of Trespass from an appeal of felony. Just the dropping out of a single word might make all the difference. Thus, on a roll of Richard's reign A. is said to appeal B., C., and D., for that they came to his land with force and arms, and in robbery (“felony” is not mentioned) and wickedly, and in the king's peace carried off his chattels, to wit turves; whereupon B. defends the felony and robbery, and says that he carried off the turves in question from his own freehold2. Attempts were made to use the appeal of felony as an action for trying the title to land,—a very summary action it would have been. But the court of John's reign would not suffer this3. On the rolls of the first half of Henry III's reign actions of Trespass appear, but they are still quite rare. The advantages of an action in which one can proceed Edition: current; Page: [153]to outlawry are apparent1, but something seems to be restraining plaintiffs from bringing it. The novelty of the procedure is shown by the uncertainty of the courts as to its scope, particularly when the action relates to land, and title is pleaded by the defendant. We actually find an action of trespass leading to a grand assize. If title is to be determined at all in such an action, it must be determined with all the solemnity appropriate to a Writ of Right2. Bracton, however, who unfortunately has left us no account of this action, shows a reluctance to allow this writ “quare vi et armis “to be used for the purpose of recovering land3, and a little later we find it repeatedly said that a question of title cannot be determined by such a writ4. So late as Edward II's reign it was necessary to assert Edition: current; Page: [154]against a decision to the contrary that in an action de bonis asportatis the judgment must be merely for damages and not for a return of the goods1.

But meanwhile, Trespass had become a common action. This, on the evidence now in print, seems to have taken place suddenly at the end of the “Baron's war.” In the Placitorum Abbreviatio we suddenly come upon a large crop of such actions for forcibly entering lands and carrying off goods, and in very many of these the writ charges that the violence was done “occasione turbacionis nuper habitæ in regno.” This may suggest to us that in order to suppress and punish the recent disorder, a writ which had formerly been a writ of grace, to be obtained only by petition supported by golden or other reasons, was made a writ of course,—an affair of every-day justice. Such MS. registers as I have seen seem to favour this suggestion. I have seen no register of Henry III's reign which contains a writ of Trespass, and it is not to be found even in all registers of his son's reign.

III.

Let us pass on to a new reign. Registers of Edward I's time are by no means uncommon. I believe that we have at Cambridge no less than seven which, in the sense defined above, may be ascribed to that age, and there are many at the British Museum. The most meagre of them is far fuller than those Registers of Henry III's reign of which we have spoken. To give an idea of their size I may mention a MS. at the Museum (Egerton 656), in which the writs are distributed into groups of sixty; there are seven perfect groups followed by a group which contains but fifty-one members; thus in all there are four hundred and seventy-one writs. This increase in size is of course largely due to the legislative activity of the reign, and this course makes the various specimens differ very widely from each other in detail. Still I think that I have seen enough to allow of my saying that very early in the reign the general arrangement of the Register had become the arrangement that we see in the printed book. A Register of Edward's day is distinctly recognizable as being the same book that Rastall published under the rule of Henry VIII. Not to lose myself in details about statutory writs, I will draw attention to one principle which may help towards a classification of these Edwardian Registers. That principle is expressed in the question—Does Trespass appear at all, and if so where? There are specimens Edition: current; Page: [156]which have no Trespass; there are others which have Trespass at the end, in what we may regard as an appendix; there are others again which have Trespass in its final place, namely, in the very middle of the book.

Next I will give a short description of a specimen which I am disposed to give to the earliest years of Edward I. It is contained in a Cambridge MS. (Ee. i. I) which I will call CC, and the following notes of its contents may be enough. For the purpose of making its scheme intelligible I have supposed it to consist of various groups of writs and have given titles to those groups, but it will be understood that the MS. gives the writs in an unbroken series, a series unbroken by any headings or marks of division.

• 1. The Writ of Right Group. This includes the Writ of Right; Writ of Right de rationabile parte; Writ of Right of Dower; Praecipe in capite; Little Writ of Right; Writs of Peace, and writs summoning the Grand Assize or Jury in lieu of Grand Assize; writ for viewing an essoinee; writs announcing appointment of attorney; Warrantia diei; Licencia surgendi; Pone; Monstraverunt.
• 2. The Ecclesiastical Group. Writ of Right of Advowson; Darrein Presentment; Quare impedit; Juris utrum; Prohibition to Court Christian in case of an advowson; Prohibition to Court Christian in case of chattels or debts; Prohibition against Waste1; Prohibition Edition: current; Page: [157]in case of lay fee. Then follow seven specially worded prohibitions introduced by the note “Ostensis formis prohibicionum que sunt de cursu patebit inferius de eis que sunt in suis casibus formate et sunt de precepto.” After these come the De Excommunicato capiendo and other writs relating to excommunicates.
• 3. The Replevin and Liberty Group. Replevin; a writ directed to the coroners where the sheriff has failed in his duty is preceded by the remark “primo inventum fuit pro Roberto de Veteri Ponte“; De averiis fugatis ab uno comitatu in alium; De averiis rescussis; De recaptione averiorum; Moderata misericordia; De nativo habendo, the limitation is “post ultimum reditum Domini J. Regis avi nostri de Hibernia in Angliam”; De libertate probanda; Aid to distrain villans; De tallagio habendo; De homine replegiando; De minis, i.e. a writ conferring a special peace on a threatened person1. De odio et atia (with the remark that the clause beginning with nisi was introduced by John Lexington, Chancellor of Henry III).
• 4. The Criminal Group. Appeal of felony evoked from county court by venire facias; writ to attach one appealed of homicide by his body; writs to attach other appellees by gage and pledge.
• 5. A Miscellaneous Group. De corrodio substracto; De balliva forrestarii de bosco recuperanda; Quod attachiet ipsum qui se subtraxit a custodia; Quod nullus Edition: current; Page: [158]implacitetur sine precepto Regis. Various forms of the Quod non permittat and Quod permittat for suit of mill, etc.
• 6. Account. Account against a bailiff (“Et sciendum est quod filius et heres non habebit hoc breve super ballivum domini [corr. antecessoris] sui, set ut dicitur executores possunt habere hoc breve super ballivum tempore quo fuit in obsequio defuncti“; it proceeds to give a form of writ for executors in the king's court and then adds, “Et hoc breve potest fieri ad placitandum in comitatu. Verumptamen casus istorum duorum brevium mere pertinet ad curiam cristanitatis racione testamenti“).
• 7. Group relating chiefly to Easements and the duties of neighbours. Aid to knight eldest son; De pontibus reparandis—muris—fossatis; De curia claudenda; De aqua haurienda; De libero tauro habendo; De racionabile estoverio; De chimino habendo; De communa, with variations; Admeasurement of pasture; Quo jure; De racionalibus divisis; De perambulacione; De ventre inspiciendo.
• 8. Mesne, Annuity, Debt, Detinue, etc. De medio; De annuo redditu; De debito (only two writs of debt, one a precipe, the other a justicies; the former has “debet et detinet,” the latter “detinet“); Ne plegii distringantur quamdiu principalis est solvendus; De plegiis acquietandis; De catallis reddendis; (Detinue by precipe and by justicies); Warrantia cartae.
• 9. Writs of Customs and Services.
• 10. Covenant and Fine. The covenant in every case is “de uno messuagio.”
• Edition: current; Page: [159]11. Wardship. De custodia terre et heredis; De corpore heredis habendo; De custodia terre sine corpore; Aliter de soccagio. “Optima brevia de corpore heredis racione concessionis reddende [sic] executoribus alicui defuncti.”
• 12. Dower. Dower unde nihil; De dote assensu patris; De dote in denariis; De dote in Londonia; De amensuracione dotis.
• 13. Novel Disseisin. Novel disseisin, the limitation is “post primam transfretacionem domini H. Regis anni1 [sic] nostri in Brittanniam“; De redisseisina; Assize of nuisance; Attaint.
• 14. Mort d’Ancestor, and similar actions. Mort d’Ancestor (no period of limitation named); Aiel; Besaiel (“Multi asserunt quod hoc breve precipe de avio et avia tempore domini H. Regis filii Regis Johannis per discretum virum dominum Walterium de Mertone2 tunc secretarium clericum et prothonotorium [sic] cancellarie domini Regis et postmodum cancellarium primo fuit adinventum quia propter recentem seisinam et possessionem et discrimina brevis de recto vitandum ab omnibus consiliariis et justiciariis domini Regis est approbatum et justiciariis demandatum quod illud secundum sui naturam placitent“); Cosinage; Nuper obiit (“Et hoc breve semper est de cursu ad Edition: current; Page: [160]bancum in favorem petentis seisinam quod antecessor petentium habuit de hereditate sua et similiter ut vitentur dilaciones periclose que sunt in breve de recto“).
• 15. Quare ejecit infra terminum, ascribed to Walter Merton1; Writs of Escheat.
• 16. Entry and Formedon. Numerous Writs of Entry, the degrees being mentioned (no writ “in the post“); Formedon in the Reverter; and a very general Formedon in the Descender2.
• 17. Miscellaneous Group. License to elect an abbot; petition for such license; form of presenting an abbot elect to the King; pardons; grants of franchises; a very special writ for R. de N. impleaded in the court of W. de B.; De languido in anno bissextili (concerning an essoin for a year and a day in leap year); Breve de recapcione averiorum post le Pone; Quod non fiat districtio per oves vel averiis [sic] carucarum; Ne aliquis faciat sectam ad comitatum ubi non tenetur; Ne faciat sectam curie ubi non tenetur; some specially worded Prohibitions.

In substance this MS. seems to represent the Register as it stood in the very first years of Edward I. I do not think that any of the statutes of his reign have Edition: current; Page: [161]been taken into account, and doubt whether even the Statute of Marlborough (1267) has yet had its full effect. There is no Writ of Entry “in the post,” and some writs about distress and suit of court founded on statutes of Henry III still remain unassimilated in a miscellaneous appendix. The character of that appendix provokes the remark that the copyists of the Register may often have picked and chosen from among the miscellaneous forms of the Chancery those which would best suit the special wants of themselves or their employers. The congé d’élire, for example, looks out of place, and the petition for such a license still more out of place; but this is a monastic manuscript and these formulas were useful in the abbey.

I said above that Glanvill's scheme of the law, or rather his scheme of royal justice, might be displayed by some such string of catch-words as the following: “Right” (that is proprietary right in land), “Church,” “Liberty,” “Dower,” “Inheritance or succession,” “Actions on Fines,” “Lord and Tenant,” “Debt,” “Attorney,” “Justice to be done by feudal lords and sheriffs,” “Possession,” “Crime.” Now I will venture the suggestion that the influence of his book is apparent on the face of the Register (CC) and all the later Registers. It begins with “Right” while it puts “Possession,” a title which now includes the Writs of Entry as well as the Assizes, at the very end. After “Right” comes “Church,” and after “Church” comes “Replevin and Liberty,” a title the unity of which is secured by the fact that when a man is wrongfully deprived of his liberty he ought to be replevied. The middle part of the Register is somewhat chaotic, and so Edition: current; Page: [162]it always remains; but it is really less chaotic than it may seem to some of us, whose heads are full of modern notions. We seem indeed to be carried backwards and forwards across the line which divides “personal” and “real” actions; Account, Annuity, Debt, Detinue, and Covenant are intermixed with actions founded on feudal dues and actions founded on easements, writs for suit of mill, suit of court, repair of bridges, actions of Mesne, actions of Customs and Services. The truth, as it seems to me, is that the line between “real” and “personal” actions as drawn in later books, is, at least when applied to our medieval law, a very arbitrary line. For example, there is an important connection between an action in which a surety sues the principal debtor (de plegio acquietando) and an action of Mesne, in which the tenant in demesne sues the intermediate lord to acquit or indemnify him from the exaction of the superior lord; this connection we miss if we stigmatise “Mesne” as a “real action” just because it has something to do with land. The action of Debt, again, is founded on debet; but so is the action for Customs and Services, at least in some of its forms. However I am not concerned to defend the Register.

In Edward I's day, partly it may be under the influence of Glanvill's book, it has become an articulate body. It will never hereafter undergo any great change of form, but it will gradually work new matter into itself. Such new matter will for a while lie undigested in miscellaneous appendixes, but in course of time it will become an organic part of the system. I will mention the most striking illustration of this process.

Hitherto we have never come across that action of Edition: current; Page: [163]Trespass which is to be all important in later days, and it seems to me a very noteworthy fact that there are Registers of Edward I's day that omit this topic. It gradually intrudes itself. First we find it occupying a humble place at the end of the collection among a number of new writs due to Edward's legislative zeal. Thus, to choose a good example, there is in the Cambridge Library a MS. (Ll. iv. 18) containing a Register which is very like that (Ee. i. I) which we have last described. But when it has done with the Writs of Entry, it turns to Formedon, gives writs in the Reverter, Descender, and Remainder, and a number of specially worded writs of Formedon which bear the names of the persons for whom they were drawn:—we have Bereford's formedon, Mulcoster's, and Mulgrave's; clearly the Statute of Westminster II is in full operation. Then upon the heels of Formedon treads Trespass. It is a simple matter as yet, can be represented by one writ capable of a few variations—insultum fecit et verberavit, catalla cepit et asportavit arbores crescentes succidit et asportavit, blada messuit et asportavit, separalem pasturam pastus fuit, uxorem rapuit et cum catallis abduxit. Trespass disposed of, we have Ravishment of Ward; Contra formam feffamenti; Ne quis destringatur per averia carucae; Contribution to suit of court; Pardons; Protections; De coronatore eligendo; De gaola deliberanda; De deceptione curiæ; cessavit per biennium; carta per quam patria de Ridal dis-afforestatur; Breve de compoto super Statutum de Acton Burnell, and so forth and so forth in copious disorder. The whole Registrum fills fifty-two folios, of which no less than the last fourteen are taken up by the unsystematized Edition: current; Page: [164]appendix. Another MS. (Ll. iv. 17) gives a Register of nearly the same date, perhaps of somewhat earlier date, for it does not contain the new Formedons. This again has an unsystematized appendix, and in that appendix Trespass is found. The place at which it occurs may be thus described:—the part of the Register that has already become crystallized, the part which ends with the Writs of Entry, having been given, we have the following matters: Pardon; License to hunt; Grants of warren, fair, market; De non ponendo in assisam, Writ on the Statute of Winchester; Leap year; Inquests touching the King's year and day; Contribution; Beau pleader; Trespass; Gaol delivery; Intrusion; congé d’élire; Quo Warranto; Trespass again; Writ on the Statute of Gloucester; Mortmain; Trespass again (pro cane interfecto); ne clerici Regis compellantur ad ordines suscipiendos,—as variegated a mass as one could wish to see. Other MSS. of the same period have other appendixes with Trespass in them. They forcibly suggest that the Register was falling into disorder, the yet inorganic part threatening to outweigh the organic.

There came a Chancellor, a Master, a Cursitor with organizing power; Trespass could no longer be treated as a new action; a place had to be found for it, and a place was found. It may be that this was done under Edward I: certainly in his son's reign it seems an accomplished fact. What was the place for Trespass? If the reader will look back at our account of the Register which we have called CC, he will find that we have labelled the third group of writs as “Replevin and Liberty,” the fourth group as “Criminal.” The Edition: current; Page: [165]connection between Replevin and Liberty is obvious, it is seen in the writ De homine replegiando, the writ for replevying a prisoner. The transition from Liberty to Crime is meditated by the writ De odio et atia, a writ for one who says that he is imprisoned on a false accusation of crime. Now when the time has come for taking up Trespass into the organic part of the Register, this was the quarter in which its logical home might be found. It was naturally brought into close connection with “crime.” Throughout the Middle Ages Trespass is regarded as a crime; throughout the Year Books the trespasser is “punished”; and it is a very plausible opinion that the earliest actions of trespass grew out of appeals of felony; they were, so to speak, mitigated appeals, appeals with the “in felonia“omitted, but with the “vi et armis,” and the “contra pacem “carefully retained. Already in the Register that I have called CB, a writ of false imprisonment has come in immediately before the writ for attaching an appellee. Then, in CC, a writ De minis has forced its way into the “Replevin and Liberty Group” so as to precede the writs against an appellee. This writ De minis, commanding the sheriff to confer the king's peace, the king's “grith” or “mund” we may say, on a threatened person, and to make the threatener find security for the peace is the herald of trespass: De minis—De transgressione, this becomes a part of our “legalis ordo.”

The result in the fully developed Register is curious, showing us that the arrangement of the book is the resultant of many forces. Let us see what follows Waste. We have the De homine replegiando, then the Replevin of chattels, then, returning to men deprived of liberty, the De nativo habendo, and the De libertate Edition: current; Page: [166]probanda; these naturally lead to the writ ordering the sheriff to aid a lord in distraining his villans. There follows the De scutagio habendo. Why should this come here? Because in older times villanage had suggested tallage; this had been the place for a De tallagio habendo, and then tallage had suggested scutage. Then in the printed Register we have the De minis; and then an action against one who has given security for the peace and has broken it by an assault, brings upon us the whole subject of Trespass, which with its satellites now fills some forty folios, some eighty pages. And then what comes next? Why, De odio et atia; we are back again at that topic of “Liberty and Replevin” whence we made this long digression. Meanwhile these criminal writs, these writs for attaching appellees which originally attracted Trespass to their quarter of the Register, have disappeared as antiquated, since persons accused of felony now get arrested without the need of original writs.

Similar measures were taken for writing into appropriate places the result of the legislation of Edward I; but the formation of new writs was constantly providing fresh materials. Some of these found a final resting-place at the very end of the Register, but for most of the statutory writs, a home was found in the middle. The occurrence of the Assize of Novel Disseisin marked the beginning of a new and logically arranged section of the work, a section devoted to Possession. It is between Dower and Novel Disseisin that the newer statutory writs are stored.

As already said, the printed Register is full of notes and queries. Many of these are ancient, some as old as the reign of Edward I. Speaking broadly one may Edition: current; Page: [167]say that the Latin notes are ancient, the French notes comparatively modern. Some of them must have been quite obsolete in the reign of Henry VIII; but the “vis inertiae “preserved them. When once they had got into MSS. they were mechanically copied.

During the whole of the fourteenth century the Register went on growing, and by the aid of MSS. we can still catch it in several stages of its growth. Some of these MSS. show a Register divided into chapters, and thus make it possible for us to perceive the articulation of the book. As the printed volume gives us no similar aid, I will here set out the scheme of a Register which I attribute to the reign of Richard II. It is contained in a Cambridge MS. (Ff. v. 5). In the righthand column I give the catch-words of its various chapters; in the left-hand column I refer to what I take to be the scheme of CC, the Register from the beginning of Edward I's reign, of which mention has already been made.

A Register from the end of the fourteenth century is in point of form the Register that was printed in Henry VIII's day. If I might revert to my architectural simile, I should say that the cathedral as it stood at the end of Richard II's reign was the cathedral in its final form; some excrescent chantry chapels were yet to be built, but the church was a finished church and was the church that we now see. In the printed book we can detect but very few signs of work done under Tudor or even Yorkist kings, and though the Lancastrian Henries have left their mark upon it, still that mark is not conspicuous. I should guess that the last occasion on which any one went through the book with the object of adding new writs and new notes occurred late in the reign of Henry VI1. On the other hand we constantly find references to decisions of Richard II's time, and there are many signs that the book was revised and considerably enlarged in the middle of Edward III's reign; allusions to decisions given between the tenth and twentieth years of the last-named Edition: current; Page: [171]king are particularly frequent, and we read more of Parning than of any other chancellor. This is a curious point. Robert Parning, as is well known, was one of the very few laymen, one of the very few common lawyers, who, during the whole course of medieval history held the great seal. He held it for less than two years; he became chancellor in October, 1341, and died in August, 1343; yet during this short period he stamped his mark upon the Register. The policy of having a layman (a “layman,” that is, when regarded from the ecclesiastical not the legal point of view) as chancellor was very soon abandoned; few if any laymen were endowed with the statecraft and miscellaneous accomplishments required of one who was to act as “principal secretary of state for all departments.” But within the purely legal sphere, as manager of the “officina brevium,” a great lawyer who had already been chief justice may have found congenial work. After all, however, it may be chance that has preserved his name in the pages of the Register; just in his day some clerk may have been renovating and recasting the old materials and thus have done for him what some other clerk a century earlier did for William Raleigh.

During the fifteenth century the Register increased in bulk, but except in one department there seem to have been but few additions made to the formulas of litigation; the matter that was added consisted, if I mistake not, very largely of documents of an administrative kind,—pardons, licenses to elect and other licenses, letters presenting a clerk for admission, writs relating to the management of the king's estates, writs for putting the king's wards in seisin, and so forth, lengthy Edition: current; Page: [172]formulas which conceal what I take to be the real structure of the Register. As a final result we get some seven hundred large pages, whereas we started in Henry III's day with some fifty or sixty writs capable of filling some ten or twelve pages. The department just mentioned as exceptional is of course the department of Trespass. Here there has been rapid growth; but I do not think that the printed book can be taken as fairly representing the law of the time when it was printed, namely 1531. It draws no line at all between “Trespass” and “Case.” The writs that we call writs of “Trespass upon the special Case” are mixed up with the writs which charge assault, asportation, and breach of close, and are very few. Writs making any mention of assumpsit are fewer still, and I think that there is but one which makes the non-feasance of an assumpsit a ground of action1. I should suppose that the practice of bringing actions by bill without original writ checked the accumulation of new precedents in the Chancery, and it seems an indubitable fact that the invention of printing had some evil as well as many good results; men no longer preserved and copied and glossed and recast the old manuscripts. But when all is said it is a remarkable thing that a Register which certainly did not contain the latest devices should have been printed in 1531, reprinted in 1595, and again reprinted in 1687. The consequence is that Trespass to the last appears as an intruder. No endeavour has been made to reduce the writs that come under that head to logical order. The forces which have determined Edition: current; Page: [173]the sequence of these writs seem chiefly those which I have called “chronology” and “mechanical chance”; as new writs, as they were made, were copied on convenient margins and inviting blank pages. There has been no generalization; the imaginary defendant is charged in different precedents with every kind of unlawful force, with the breach of every imaginable boundary, with the asportation of all that is asportable, while the now well-known writs against the shoeing smith who lames the horse, the hirer who rides the horse to death, the unskilful surgeon, the careless innkeeper, creep in slowly amid the writs which describe wilful and malicious mischief, how a cat was put into a dove-cote, how a rural dean was made to ride face to tail, and other ingenious sports. It would be interesting could we bring these Registers to our aid in studying the process whereby Trespass threw out the great branch of Case, and Case the great branch of Assumpsit; but the task would be long and very difficult, because the Registers are so many, and unless we compare all of them our means of fixing their dates are few and fallible. Of course, if the task concerned the history of Roman law it would be performed; but we are fully persuaded, at least on this side of the Atlantic, that our own forefathers were not scientific.

I.: The Malmesbury Case.

That land was owned by communities before it was owned by individuals, is nowadays a fashionable doctrine. I am not going to dispute it, nor even to discuss it, for in my judgment no discussion of it that does not deal very thoroughly with the history of legal ideas is likely to do much good. I must confess, however, to thinking that if the terms “community” and “ownership” be precisely used,—if ownership, the creature of private law, be distinguished from a governmental dominion conferred by public law, and if ownership by a public community (universitas, persona ficta) be distinguished from co-ownership (condominium, joint tenancy or tenancy in common),—then this doctrine is as little proved and as little probable as would be an assertion that the first four rules of arithmetic are modern when compared with the differential calculus. But this by the way, for my present purpose is merely that of raising a gentle protest against what I think the abuse of a certain kind of argument concerning “village communities”—the Edition: current; Page: [314]argument from survivals. Some quaint group of facts having been discovered in times that are yet recent, some group of facts which seems to be out of harmony with its modern surroundings, we are—so I venture to think—too often asked to infer without sufficient investigation that these phenomena are and must be enormously ancient, primitive, archaic, pre-historic, “pre-Aryan.”

Of course I am not saying that there is no place in the history of law for inferences drawn from the present to the past. A historian who, when dealing with a particular age, let us say the eleventh century, refused to look at any documents that were not so old as that age, would not merely place himself under a self-denying ordinance of unnecessary rigour, he would often be casting away his most trustworthy materials. The student of Anglo-Saxon law, for example, who refused to look at Domesday Book, because it did not belong to “his period,” would be guilty of pedantry and worse. The surest fact that we know of Anglo-Saxon land law is that it issued in the state of things, more or less intelligently, more or less fairly, chronicled by Norman clerks as having existed on the day when King Edward was alive and dead. But obviously the method which would argue from what is in one century to what was in an earlier century, requires of him who employs it the most circumspect management. I need not expand this warning into a lengthy sermon; it has been given once for all in words that shall never be forgotten—“Praetorian here! Praetorian there! I mind the bigging o't.”

If these words should be always in the ears of every Edition: current; Page: [315]one who is hunting for “survivals,” they should, so it seems to me, be more especially remembered by those who, not content with the phenomena which they can find in the open country, are looking for exceedingly ancient and even pre-historic remains within the walls of our English boroughs. Here if anywhere the danger of mistaking the new for the old is an everbesetting danger.

To come to particulars:—When we see burgesses occupying land in severalty by a communal title—that is to say, occupying because they are burgesses and so long as they are burgesses—and when we see further that their occupation is subject to communal regulations, subject to the bye-laws made by the governing body of the corporation in the name of the corporation—we must not at once infer that this is a very ancient arrangement. In a very large number of instances the title by which a borough corporation holds its land—even land within or adjacent to the borough—is known to be a modern title; indeed it will I think be found that the borough “communitas” of the thirteenth century was but rarely a landowner; it generally owned valuable “franchises,” but not land. In some cases the boroughs of the later middle ages profited by the liberality of individual burgesses; in other cases they profited by the Protestant Reformation, they acquired lands which had belonged to monasteries and to religious or semi-religious gilds; in yet other cases they obtained from the king or some other lord the ownership of soil over which they had for a long time past been exercising rights of pasture.

Now when land was thus acquired, what was to be Edition: current; Page: [316]done with it? Let it at a rack rent, we moderns may say, carry the proceeds to the account of the borough fund, and then expend them on some object useful to the town at large, upon paving, lighting, water-supply, elementary education, or the like. But this is to impose upon our ancestors our own notions of right and wrong, and very modern notions they are. If we go back but a little way we find that the property of the corporation is regarded as being, not indeed the property of the corporators, but still property which the corporators may enjoy very much as they think best. Of course the corporators are neither joint tenants nor tenants in common of this property; they are to enjoy it because they are corporators, and “shares” in the corporation (if we may use that term) do not obey the common rules of private law applicable to cases of co-ownership, though often enough “birth” and “marriage” are titles to “freedom”:—still they are to enjoy it. There is no other purpose for which it exists. No doubt the great reform of 1835 was a sadly needed reform; but the historian of our towns will have to point out that the harm that was to be remedied had been done much rather by the oligarchic constitution of the corporations,—in many cases a constitution deliberately fashioned for the purpose of making them the instruments or the playthings of politicians,—than by the prevalence of the notion that the property of the corporation should be enjoyed by the corporators. That notion was a very natural one, and we cannot blame our forefathers for having entertained it. The property of the corporation was not (except in quite exceptional cases) “impressed with a trust.” No one Edition: current; Page: [317]had ever laid down the rule that the only possible “ideal will” of this persona ficta must be that of keeping a well-lit, well-paved, well-watched, healthy and cleanly town. And so if the borough had land the burgesses meant to enjoy it. If they let it they would divide the proceeds among them, perhaps in equal shares, perhaps bestowing preferential shares on their aldermen or chief burgesses. But they might well like to enjoy it in specie, to cut it up into allotments, to allow every burgess to hold an allotment so long as he was a burgess, paying no rent or a rent much lower than that which a stranger would have given:—a score of intricate variations on this theme might be devised. Especially if the corporation of a small borough acquired land hard by the houses of the corporators, some plan of allotting the land among the burgesses would very probably be adopted at some time or another. A burgess of such a borough would much rather have some little plot which during his lifetime he could call his own, than a dividend of a few shillings or a right to turn out beasts upon a waste.

If I am not mistaken, we can see this in our own day. At Bishop's Castle in Shropshire—so the commissioners of 1835 reported—the burgesses had a right of common on a pasture containing from ninety to one hundred acres, called the Moat Hill or Burgesses’ Hill. “It is a right of common without stint, but being merely adapted for a sheep walk, it is represented to be of inconsiderable value1.” Before 1880 this pasture had been turned into arable land, cut up into small portions held in severalty by several burgesses, each of Edition: current; Page: [318]them holding under a lease from the corporation at a rent of 5s. per acre for a term of sixty years, renewable for ever on a fine of £51. How had this come about? There had been some dispute between the corporation and some of the burgesses. Some of the burgesses had enclosed pieces of the land, and then the matter was settled on the terms just mentioned.

At West Looe the members of the corporation had turned out their cattle over a certain down. The corporation, having passed through every stage of degradation, finally became extinct. In 1828 the commoners, without any Act of Parliament, enclosed two-thirds of the common, cutting that part up into seventy-three little plots which they let at small rents to certain members of their body, mostly poor fishermen of the village. “Did all the inhabitants have these inclosures?” “Many of the inhabitants had these inclosures; they were let at a yearly rent.” “But how were they chosen?” .... “They settled it among themselves; they never disputed it.” “But some got back an equivalent [for their pasture right] by taking a piece which they rented, and others apparently got nothing?” “Quite so.” “How was that settled?” “I think that it was settled in this way, that after paying a certain amount of money for the expenses and other matters, the general income was handed over to the overseers for the poor-rate.” “The whole population had a certain benefit out of it?” “They all had a benefit from it.” Then in stepped the Duke of Cornwall with seignorial claims to this soil, but seemingly very willing to do what was fair by the men of Looe; and Edition: current; Page: [319]by means of a conveyance to trustees all was, we may hope, settled for the good of all1.

Now the question that I would ask is whether it is not very possible and even probable that what we see the men of Bishop's Castle and West Looe doing in the full glare of the nineteenth century, has been done by the burgesses of other boroughs in times that we cannot call archaic or primitive or prehistoric, times which lie well within the limit of legal memory.

Let us observe some few of the divers modes in which our burgesses have used the lands belonging to the boroughs, placing ourselves at the date of the great municipal reform.

Very often of course “burgesses” or “freemen” as such claim rights of pasture over soil of which the corporation is the owner, or (to speak more nicely) the tenant in fee simple. Sometimes the right of pasture is regarded as an appurtenance to a tenement in the borough. Thus in Clitheroe2 the right to be a burgess was given by the tenure of certain burgage tenements. There were seventy-eight “free-borough houses,” ten “borough houses,” and fourteen “borough crofts.” “The free borough houses formerly conferred a right of common of pasture for one horse and one cow, on the moors or commons within the borough. These are now inclosed. Borough houses and borough crofts were not entitled to such horse-gate and cow-gate.”

Very often again all the “resident freemen” as such have pasture rights. Sometimes they have to pay Edition: current; Page: [320]small sums for it, sometimes not. Thus at Beverley1 “the burgesses residing within the town have the privilege of depasturing cattle, being their own property, on lands belonging to the corporation, containing about 4217 acres. They are allowed to depasture three cows in Westwood pasture; one horse in Hurn Pasture; three beasts in Figham Pasture, and six beasts in Swinemoor Pasture from the 14th of May to the 14th of February. This privilege, if enjoyed to its utmost extent, would be worth £25 a year. Few enjoy it to that extent. Indeed the land would not support the cattle if all who were entitled so used it. Persons depasturing are subject to the payment of a small sum on every head of cattle depastured. This sum varies from 5s. 6d. to 16s. 6d. a head.” At Doncaster2 “every resident freeman is entitled to turn two head of cattle upon a tract of land belonging to the corporation, containing 142 acres, called the Low Pastures, during the summer season. This privilege is worth, to each freeman, about £1 per annum. A resident freeman may let this privilege to another resident freeman. The freemen are also entitled to the aftermath in a meadow called Crimpsall Meadow, containing about sixty-five acres. This privilege is worth very little; the eatage is soon consumed, it being without stint; it does not last more than a week or ten days.” ... “The Neatherd looks after the cattle depasturing on the low pasture, being the freeman's pasture. He is allowed 13s. 4d. a year, a pair of boots every year, a house and two acres of land rent free, of the value of about £10, and two Edition: current; Page: [321]cattle gates on the low pasture worth about 10s. a year each.”

Then at York1 we find that the rights of the freemen vary from ward to ward. They “exercise a right of pasturage over several pieces of waste land in the neighbourhood of the city. Their rights in this respect vary according to the several wards in which they inhabit. The freemen inhabitants of ancient messuages in Bootham Ward are entitled to a right of pasturage for three head of cattle, either cows or horses, on a tract of land in the parishes of Clifton and Huntingdon, containing about 180 acres, subject to the payment of 10s. a year for every cow, and 12s. for every horse depastured;; the number of freemen who exercise this right is about seventy. The freemen occupiers of houses in Monk Ward are entitled to depasture two heads of cattle, either horses, cows, or other beasts, on a tract of about 131 acres, subject to annual payment of 10s. for each beast; about 100 freemen generally exercise this right, and the number of cattle depastured is generally about 150. Freemen occupiers of houses in Walmgate Ward are entitled to pasturage for one head of cattle only, i.e. one cow with a calf, one mare with a foal, or one gelding, on about seventy-five acres of land, subject to the payment of 20s. for each beast; about 100 freemen exercise this right. The freemen inhabitants in Micklegate Ward, and certain parts of Bootham Ward, Monk Ward, and Walmgate Ward are entitled to pasturage for one gelding, or one mare with a foal, and two cows, upon several tracts of land, containing together 437 acres, Edition: current; Page: [322]subject to an annual payment of 8s. for each horse, and 6s. for each cow; about 400 head of cattle are usually depastured on these lands. These annual payments for depasturing cattle are received by the pasture masters, and by them applied about the necessary expenses of guarding the cattle and keeping the lands in order.”

Elsewhere we may find that not all, but only some of the burgesses, are entitled to pasture. At Lancaster1 “the free burgesses are entitled to a right of common on Lancaster Moor; but in practice this common is used by almost every one who has property adjoining it. The eighty senior burgesses are entitled to an equal share in the net income, arising from some ground, called Lancaster Marsh, the property of the corporation. Lancaster Marsh was formerly a stinted pasture; and by an old custom, of the commencement of which there is no record in the corporation books, the senior eighty resident freemen were alone entitled to the herbage. The Marsh was inclosed in 1796, and the rents, still called Marsh-grasses, are now apportioned among the freemen, according to the old custom. This property is exclusively under the management of the Bailiff of the Commons: the leases are for seven years, at rack rent. The rents now produce about £4 to each of the eighty persons, and greatly exceed the value which the land possessed before the inclosure.”

With these cases in our minds, we turn to others in which burgesses as such occupy land in severalty. The Edition: current; Page: [323]constitution of the corporation of Berwick1 was democratic. There was no “select body”; but the whole corporation, consisting of the mayor, the four bailiffs and the other burgesses, assembled in guild managed the affairs of the corporation, made bye-laws and disposed of property in the same way as was generally done in other places by the common council. The number of burgesses was indefinite; men became entitled to be burgesses (1) by birth, (2) by servitude, and (3) by grant from the corporation. “There is a large tract of land lying near the town, which was granted to the corporation by charter 2 James I. The First Portion of this land consists of several farms, which are demised to tenants by the mayor, bailiffs and burgesses, the rent being reserved to the said mayor, bailiffs and burgesses, or their treasurer for the time being, and collected by him. The rent together with the proceeds of other property now forms a separate fund, out of which the salaries of the officers and other corporate expenses, are defrayed. These farms are called Treasurer's Farms. The Second Portion is subdivided into several parcels varying in quantities from an acre and a quarter to two acres and a half, and in value from £1. 13s. 9d. to £9 per annum. These are called meadows, and at an annual meeting of the burgesses, called a meadow-guild, are distributed as they become vacant by the death or nonresidence of the last occupiers (or in case of widows, by subsequent marriage of the last occupiers), among the senior resident burgesses, and widows of burgesses, who succeed to the rights of their husbands as to Edition: current; Page: [324]meadows and stints, though the charter has no provision in behalf of the widows; the most ancient resident burgess is entitled to choose the most valuable vacant meadow, and so on in succession down to the youngest, till the number of vacant meadows is exhausted. The number of these meadows is twenty-four. The burgesses may either occupy these meadows themselves, or let them to tenants, reserving rents to themselves. In practice they are generally let. The lands forming the Third Portion were, up to the year 1761, open fields, upon which each burgess was entitled to a certain right of pasture, but at that period they were inclosed, and have ever since been let, in guild, as farms to tenants for various terms of years, and are now demised by leases under the corporation seal, generally in farms of forty acres, or thereabouts. The rent of each farm is divided into a certain number of equal portions, generally eleven, but in a few instances twenty-two. At another annual meeting, called a Stint-guild, a portion is allotted upon a specific farm to each resident burgess or burgess's widow, or to as many of these as there are vacant portions. These portions are called stints, and like the meadows vary in value from £8 to £9 per annum. The number of these stints was increased about thirty years ago, by appropriating another portion of land to that purpose. The number of stints thus added is forty-four, making the total amount 561. The more ancient burgesses are in like manner entitled to a preference, as the more valuable stints become vacant, and the younger burgesses succeed to them, as vacancies occur by the death, removal, or promotion of their seniors. The portions of the rents called stints Edition: current; Page: [325]are paid annually by the treasurer of the corporation to the burgesses who are entitled to them. The burgesses in guild have, by their charter, a power of making byelaws for the good rule and government of the corporation, and for preserving, governing, disposing, letting and demising of their lands, &c. In the exercise of this right the burgesses assembled in guilds make byelaws to regulate the enjoyment of the meadows and stints, and have prescribed the conditions of husbandry under which meadows and stint lands may be broken up, and converted into tillage, and (in the case of meadows) the terms for which they may be let by the individual burgesses to whom they are allotted. They also decide upon the title of those who claim to enjoy meadows and stints, according to their bye-laws; and instances occur upon their records, of forfeitures both of meadows and stints, either absolute or for limited periods, inflicted by the burgesses in guild, for infraction of bye-laws, or other gross misconduct. But unless there be such forfeiture, or the party either become non-resident or relinquish his stint or meadow by choosing one of more value, he may remain in the enjoyment of the stint or meadow which has at the first been allotted to him, for the term of his life. Some burgesses are permitted to enjoy one stint only, others two stints, and others again one meadow and one stint.”

At Nottingham1 “the burgesses are entitled to a considerable right of pasture.... They are also entitled, if resident, to take in order of seniority what is called a burgess-part, that is, an allotment of land in the Edition: current; Page: [326]fields or meadows at a small ground rent payable to the corporation, or a yearly sum in lieu of the allotment, at the discretion of the corporation. These burgess-parts are 254 in number. They are unequal in value and form, in fact, a sort of ‘lottery.’...The rental of the proper estates of the corporation, free from any specific trust, and commonly called the Chamber Estate, for the year 1831–2 [amounted to more than £5000 and included a sum of £144. 18s. 6d., being the rents of burgess-parts]... The number of burgess-parts on the Chamber Estate amounts at present to 112.... They are either allotments of land in the fields or meadows, for which a small groundrent, charged without reference to the actual value of the burgess-part, is paid to the corporation; or a yearly sum in lieu of the allotment, at the discretion of the corporation. These allotments are not considered as freeholds; but the common hall exercise the right of resuming them if they think proper during the life of the burgess. Resumptions of the burgess-parts have been frequent in late years. Instances have formerly occurred in which the parts were resumed without any money payment in lieu being made to the burgess. At present, a compensation in money is always given in the shape of an annual payment, which is fixed at rather more than the burgess could have made out of the land. These resumptions have taken place when the corporation were enabled to make more of the land than the burgesses could do, and have proved beneficial to the corporation estate.”

Now that arrangements of this kind may really be pretty modern, we get various hints. I will speak Edition: current; Page: [327]more especially of the case of Stafford1. The corporation are possessed of a piece of land called the Coton Field, containing about 192 acres. It appears that in ancient times the burgesses of Stafford claimed a right of common over three open fields, composing the manor of Coton, called Coton Field, Broad Field and Kingston-hill Field; but the claim was disputed by the owners of the Coton manor. In 1705 the differences between them and the corporation were arranged in the following manner. The corporation gave up all claim to the right of common over Broad Field and Kingston-hill Field, and William Fowler, the owner of the manor, in consideration thereof demised to trustees the Coton Field, for ninety-nine years, in trust, to pay him a yearly rent of £12, and then in trust for the mayor and burgesses, subject to the payment by the latter of £28 a year, for the support of the poor in the almshouse.... The Coton Field is divided into portions containing each an acre, each of which is allotted to a burgess. Small rents, varying from four to six shillings are received from the occupiers, each of whom also pays, on his first entrance, 5s. on a tillage acre, and 10s. on any other acre. The gift of these acres is vested in the mayor for the time being. They are by no means confined to the poorer order of burgesses. Each of the members of the common council [mayor, ten aldermen and ten capital burgesses] invariably receive an acre; formerly they each held two, but of late years they have given up the one.”

I can not but think that had the manner in which Coton Field was occupied in 1835 been brought to the Edition: current; Page: [328]notice of some of our “survivalists,” they would have pronounced it to be an interesting relic of archaic times. But the archaic times of which it tells are in truth the archaic times of Queen Anne or some king of that primeval dynasty, the illustrious house of Hanover. My reason for thinking that it would have been attributed to a much earlier age is to be found in what has been written concerning the borough of Malmesbury, more especially in what has been written about it by one to whom we all owe many thanks for his courageous and ingenious speculations, I mean Mr Gomme1.

The facts are in brief these2:—In Malmesbury, as in many other boroughs, the titles to freedom are birth and marriage; that is to say, a son or a son-in-law of a free burgess is entitled “to take out his freedom.” On so doing he becomes one of a class known as “the commoners.” Before 1832 this would have given him a right to turn out beasts on certain unenclosed land. But in that year by Act of Parliament this land was enclosed, and dealt with in a somewhat elaborate fashion. Fifty acres of it were given to trustees, who were to apply the income in maintaining roads, fences, and the like. The rest was cut up into 280 allotments, the average size of which is an acre and a quarter; but though they vary in size their value is approximately equal, since it was arranged that the size of the allotments should vary inversely with their proximity to the town, the smaller pieces being those nearest to the Edition: current; Page: [329]town. When one becomes a freeman of Malmesbury one becomes entitled to succeed in order of seniority to one of these 280 plots; until one gets a plot one receives 8s. a year out of the income of the fifty acres held by the trustees. Now all this arrangement, primitive though it may seem to us, is quite new, the result of an Act of Parliament coeval with the Reform Act; before that Act such of the freemen of Malmesbury as were but “commoners” had, as their name implies, rights of common and no more.

But there is an older arrangement and there are other lands to be considered. A freeman may aspire to be a “landholder.” The landholders are a body of fifty-five (formerly there were but forty-eight) persons, each of whom holds a several plot; these plots vary in size; together they make up about forty acres; they are divided into six “hundreds”; the number of plots in the hundred varies. The freeman who wishes for a plot puts down his name at the bottom of a list; a list of applicants is kept for each hundred; he can put his name on one of these lists or on several of them; if at the same meeting of the corporation several persons wish to enter their names on the same list, then they cast lots for priority. When a vacancy occurs in one of the hundreds owing to the death of a “landholder,” the applicant whose name stands highest on the list of that hundred gets the vacant plot, and if his name is on the list of a second hundred it is struck off that second list, for he is not to have two plots. So much as to the “landholders.” Above them in rank stand the twenty-four “assistant burgesses,” each of whom has an acre in addition to his “landholder's part” and Edition: current; Page: [330]his “commoner's part.” Vacancies in this body of twenty-four assistant burgesses are filled from among the “landholders” by co-optation1; “in practice they are self-elected, though it is said that the aldermen and capital burgesses have a right to interfere.” Then above the twenty-four stand the twelve “capital burgesses,” who are elected by co-optation. On becoming a capital burgess one gives up one's “assistant burgess's part” and one's “landholder's part,” but one retains the “commoner's part” and becomes entitled to a “burgess's part.” These “burgess's parts” vary in size from five to sixteen acres. There are but twelve of these, and as there are thirteen capital burgesses, including the aldermen, the junior capital burgess for the time being has to do without a part, and instead thereof receives a small sum of money; but when another vacancy occurs he takes the vacant part. This he keeps, be it large or small, though other vacancies subsequently occur, but it is said that in the past there might be a general shifting of parts among the capital burgesses when one of the plots fell vacant. Then every year the capital burgesses elect an alderman (generally the aldermanship goes in rotation among them in order of seniority), and the alderman for the time being, in addition to his “burgess's part,” enjoys a Edition: current; Page: [331]plot of five acres, known as “the alderman's kitchen”; out of the profits of it he is expected to provide a feast. The corporation also holds thirty-nine small leasehold properties, which are said to be vested in the capital burgesses and alderman; they are let at quit rents, at about £1 each, upon premiums which are paid to the alderman and capital burgesses. The various allotments lie together without fences or ditches between them; each man grows what he pleases, “wheat and potatoes and beans, and all sorts of things.” “Very like a parish allotment?” “Yes, something of everything.”

Very curious all this is, but I do not think that we have any warrant for supposing that any part of this elaborate system of allotment is of very great antiquity. When Domesday Book was made the burgesses of Malmesbury, as was often the case, were divided between the king and other lords, but most of them held of the king1. Then John granted the borough in fee farm to the Abbot of Malmesbury2, and the abbey thenceforth drew a considerable revenue of burgage rents3. In the thirteenth century the burgesses of Malmesbury of the Merchant Gild held the heath known as “Portmaneshethe,” and granted part of it to the abbot4, but that they held any arable land by any communal title we do not know. With magnificent impudence they forged a charter whereby King Æthelstan, in consideration of their services against the Danes, granted them five hides of heath near his vill of Norton, by the counsel of Master Wolsinus his Edition: current; Page: [332]Chancellor and Odo his Treasurer1. To make free with Æthelstan's name was becoming fashionable in the boroughs: had not the men of Beverley, of Axbridge, of Barnstaple, charters from the same illustrious monarch2? Of this charter the men of Malmesbury procured a confirmation from Richard II, and another from Henry IV3. It is amazing that the king's chancery should have been deceived by this extravagantly clumsy imposture. Other royal charters, so far as I can learn, they had none until they obtained an elaborate instrument from Charles I and another from William III4. I am not disputing their title to the heath. Very probably they did but forge in support of ancient usage and prescriptive right. But as to the system of arable allotments we may well doubt whether any part of it belongs to the middle ages. In Charles I's day there was, and “from time immemorial” had been, a class of burgesses known as the “landholders.” In William III's day the aldermen and capital burgesses were, and “for time immemorial” had been, holding certain tenements apart from the lands held by the burgesses, and to confirm their title a second corporation, to be called “The Alderman and Capital Burgesses,” was erected by the side of the old corporation, known as “The Alderman and Burgesses,” and was provided with a seal of its own. But we know what Edition: current; Page: [333]“from time immemorial” means in such a context. Why should not what happened in 1832 have happened more than once in earlier centuries? The burgesses have been using land as pasture ground, and somehow or another, by ancient or modern title, by purchase or prescription, the corporation which they form has become—or at all events they think that it has become—the owner of the ground. They enclose part of it and invent a scheme (even in 1832 such schemes could be invented) for providing alderman, capital burgesses, assistant burgesses, ordinary burgesses, with cultivable allotments. My own belief is that were the pressure of the Municipal Corporations Act removed, and had our borough corporations nowadays as few members as they had sixty years ago, such schemes would be very fashionable at the present moment, and were I a burgess, and were the choice given to me of receiving my “dividend” in the form of money, or in the form of pasture rights, or in the form of a small “severalty,” I for my part should choose a several close. And then if there were not enough land to provide for all the burgesses without reducing each plot to an unprofitably small size, recourse would be had to some plan of rotation, or perhaps to the “archaic” drawing of lots.

Then to my eyes the scheme that came down into modern times at Malmesbury does not look very ancient; it speaks to us of the last of the middle ages or of the Tudor time, for it speaks to us of an elaborately differentiated corporation, a constitution in which class rises above class, a tripartite or quadripartite corporation. Now I think that those who have made a study of our boroughs will bear me out if I say that Edition: current; Page: [334]this will hardly be as old as the thirteenth century. In that age many boroughs have as their governing body (under the mayor or the bailiffs) a body of twelve “law-men,” twelve “capital port-men,” twelve “chief burgesses,” or the like. Such a body as this may in some cases be very ancient, though in others we can actually see its birth; but the appearance of a second and subordinate class of ruling burgesses is characteristic of a later time. Some boroughs, even great and opulent boroughs, never get beyond the first stage in the evolution of a governing body; to the end they have but a mayor and twelve aldermen. Most boroughs go further than this; below the twelve they develop a twenty-four (other numbers are sometimes found, but this duodecimal system is very common); below the twelve or twenty-four aldermen will appear the twenty-four or forty-eight common councillors, or perhaps there will be twelve capital burgesses and twenty-four assistant burgesses, or again these bodies will be known simply as “The Twelve” and “The Twenty-Four,” or “The Twenty-Four” and “The Forty-Eight1.” Occasionally, though this is much rarer, there are three classes: thus at Derby, nine aldermen, fourteen brethren, fourteen capital burgesses; at Lancaster seven aldermen, twelve capital burgesses, twelve common councillors; at York twelve aldermen, a body called the Twenty-Four, and seventy-two common councilmen; at Bury (to take a smaller town) six assistants, twelve capital burgesses, twenty-four burgesses of the common council. Now on the whole we Edition: current; Page: [335]may safely say that the more complex the ruling body, the later is its constitution—later that is according to the normal order of events. Judged by this standard the constitution of Malmesbury, with its alderman, capital burgesses, assistant burgesses, landowners and commoners, is a modern constitution, and those who regard it as of great antiquity should admit that the burden of the proof lies upon them. There is nothing in the charters of Richard II and Henry IV, nothing in that wondrous document the forged charter of Æthelstan, to prove or even to suggest that it existed in the fourteenth century. When asked to call it or any part or trait of it prehistoric, I feel as if I were being told that Henry VII's chapel at Westminster was the work of “neo-lithic man1.”

I am not contending that we must read this Malmesbury inscription as A[iken] D[rum's] L[ang] L[adle], but certainly there seems to me to be an Edition: current; Page: [336]almost infinite number of modes in which it may be deciphered without our being compelled to refer it to the age of Agricola. There are many reasons why the Monkbarns who is digging in an English borough should be careful to have an Edie by his side, or, still better, be his own Edie. In the first place, as I have been trying to explain, arrangements which may look to us very quaint—quaint because the number of landowning boroughs will not be very large—can in quite modern times be the natural outcome of the fact that the borough owns land while the burgesses for the time being are entitled to get profit or enjoyment out of that land. In the second place, our English boroughs have been exercising for a long time past not merely a considerable power of regulating by express bye-laws the use of their proprietary rights, but also (and here lies the snare for the archaeologist) a large and indefinite power of declaring their own customs, of making the old look new and the new look old, of ascribing to time immemorial—even to the reign of King Æthelstan or, for the matter of that, King Arthur—arrangements which have existed for but eighty years or less. In the third place, whatever may be the case in a court of law, in a court of history the borough that would trace back its ownership of land even into the thirteenth century, should, so I think, be called upon to prove its assertion. This I say because in very many instances we know that a borough's title to its land is not so old as that century, and because in the voluminous records which bear on the manner in which land was owned in that century, we can, if I am not much mistaken, read but very Edition: current; Page: [337]little of land being owned by communitates. Lastly, when we are speaking of the boroughs a leap from any century later than the thirteenth to any much earlier age is the most hazardous of all leaps, for the time which is thus skipped is, or at all events seems to me, the time when Englishmen are gradually and painfully, under the teaching of canonists and civilians, not without many a slip and blunder, learning to frame and use a new idea, that of the universitas, the persona ficta, learning (even Bracton could hardly do this) to distinguish between res civitatis and res omnium civium—a grand intellectual achievement comparable to the discovery of the differential calculus. I am not saying that until that achievement had been performed an ownership of land that might in some sort be called a communal ownership was impossible (far from it), but I do say that inferences drawn from an age when the borough “community” is a definite person, quite distinct from the mass of men who are the burgesses for the time being, to an age when this distinction was hardly, if at all, perceived, are perilous inferences1.

II.: The Aston Case.

The hunter after relics of very ancient times—I speak of those spiritual things that we call “institutions, Edition: current; Page: [338]“not of material potsherds—is, for reasons that I have tried to give, much less likely to be deceived by the pseudo-archaic when he is at work in the open country than when he is within the walls of a borough. Life has been slower in the village than it has been in the town; changes have been fewer; the piles of débris are neither so numerous nor so variegated; there will be fewer faults in the stratification: nevertheless, even when we are out in the fields it behoves us to be cautious. There is, or there should be, a broad gulf between the “Here is a funny old custom” of the antiquarian amateur and the “Here is a survival from the Norman, the Anglo-Saxon, the Celtic, the pre-Celtic, the pre-Aryan, the pre-historic age” of the scientific explorer. Nowadays many things are old, too old to be easily explicable, which none the less are not even mediaeval. Six centuries divide us from the Hundred Rolls, eight from Domesday Book, near thirteen from the laws of Æthelbert, and even the tiller of the soil sometimes—but I am wasting ink in these generalities.

The famous case of the Aston “village community” deserves a careful discussion, for the interpretation that we put upon it is likely to tinge our conception of large tracts of English history, economic and legal.

The English township of the fourteenth and later centuries, if it be not one of those privileged and befranchised townships that are called boroughs, is no corporation; the law does not personify it; it cannot hold land; it cannot sue or be sued. But further, it is not a “jurisdictional community.” By this I mean that it has no court in which its members, or its “best and most Edition: current; Page: [339]lawful” members, can declare and enforce the common law or the village custom. Nay, the vill is not even a jurisdictional district, though it is a police district: there is no court of any sort or kind of or for the vill as such. Lastly (so far as I can see) the township is not a self-governing community; it has no governing body; it has no assembly. Often, it is true, the vill is also a parish, and during the last of the middle ages, as the permanent endowments of the parish churches, tithes and lands are absorbed by the religious houses, church rates become necessary, and with church rates assemblies of parishioners collected in the vestry of the church and presided over by the parson or church-wardens; but mediaeval law does not confuse the parish with the township; for it the parish is a purely ecclesiastical institution.

Would it were so nowadays! Why are we to be cursed with “parish councils”? I hasten to say that I am not about to meddle with any burning question of contemporary politics—I know my place—this is but an outbreak of pedantry. And yet perhaps there is something a little better than pedantry in it. Is our legal geography so rational, so simple, that we can afford to throw good words away? Is it necessary, now that the legal relief of the poor is no longer a semi-ecclesiastical matter, that we should ever be distinguishing (with such help as interpretation clauses may give) between the ecclesiastical parish and the civil parish and condemning ourselves to live in two parishes at once. “Civil parish” is about as good a term as “lay bishop” or “civil archdeacon” or “temporal diocese” would be. Might we not profitably Edition: current; Page: [340]learn a lesson from America; might we not restore the township? This however is ultra-crepidation.

To return to our middle ages—it is well known that much that we have denied to the township, we must concede to the manor. It has a court, and that court is not merely a court of justice, it is also a bye-law-making and a precept-issuing assembly; the manor, we may say, has certain powers of self-government. True that when we examine it in the thirteenth century, the jurisdictional, legislative and governmental powers which this court has over one class of its “justiciables”—the freeholders, if any freeholders there be, are exceedingly feeble (upon very slight provocation the freeholder will be off to the king's court, where his individualistic complaints will find favourable audience), while over the other class of its justiciables—the holders in villainage—its powers, which are mighty enough, are regarded by the law as the mere will of the lord; but then it is possible for us to represent this state of things as being pretty modern, as the outcome in part of recent seignorial usurpations and in part of the yet more recent activity of a distinctively royal or national justice. The lord, it may be said, has mastered or even dispossessed the village assembly, but in so doing has been compelled to let slip from all effective control those lucky members of the community who can persuade the king's justices that their tenure is freehold.

I will not here argue either for or against this theory; rather I will point out one of the limits within which it is confined. Where manor and vill are coincident, it will give us what is in some sort a village Edition: current; Page: [341]assembly. But manor and vill are by no means always coincident. I am not referring to the cases, common in the north of England, in which the manor comprised several vills. These might be accounted for by the supposition that the lord for his convenience had succeeded in fusing several village assemblies into one manorial court. But it might very well happen that the manor would comprise only a part of a village, that the manor would be made up of parts of different villages, that some part of the village would be in no manor at all.

I am not speaking of rarities. If when we take all England as a whole we can treat the coincidence of manor and vill as normal, this we cannot do if we confine our view to certain large districts of England. One of these districts is Cambridgeshire. Of many a Cambridgeshire village we may safely say that never—at all events never since some time remoter than that of the Norman Conquest—has the whole village coincided with a single manor or formed part of a single manor, that never has it had a single lord, save that lord of all lords, the king. The various freeholders who had land in it, including those who had villain tenants and kept courts for them, often traced their titles up to the king by very different routes, and it was a common thing that part of the village territory should belong to one great honour and part to another.

But more; there can I think be very little doubt that in the Cambridgeshire village the arable lands of the various manors and even of the various honours were often intermixed; that the manor like the virgate lay scattered about in the common fields—an acre here Edition: current; Page: [342]and an acre there. So far as I can see on maps made before the modern inclosures, the village, though it may contain three or four manors, will usually have but one expanse of arable land, an expanse unbroken by ditch or hedge, an expanse that is known as “the field” of that village.

Now these cases seem to me to be cases of critical importance. They seem to put us to our choice between two paths, and, whether we pursue the one or the other we shall come to a conclusion which must govern our whole notion of of English village history. Either, despite the provoking silence of our documents, we must find, or if we cannot find, then we must postulate, some organization of the township that is not manorial, some assembly of the township that cannot be explained by feudal principles; or else we must admit that the system of common field husbandry may be carried on from century to century—perhaps for six or seven centuries—though there is no village tribunal, no village assembly, capable of regulating and controlling it.

It is in this context that the famous case of the village of Aston in Oxfordshire should teach us something. What we know of it is gathered partly from a statement, which in 1657 was submitted to two eminent lawyers, Sir Orlando Bridgman and. Mr Jeffrey Palmer, partly from a custumal compiled in 15831. I will briefly set forth the principal facts, as I understand them, Edition: current; Page: [343]premising a few words as to the whereabouts of Aston.

In the county of Oxford lies the hundred of Bampton, which contains some 42,070 acres. It comprises seventeen parishes, one of which is Bampton. The whole parish of Bampton with its hamlets contains 8,750 acres, and is composed of the following parts:—

Aston with Cote, then, is a hamlet of Bampton; in 1831 it contained 157 inhabited houses, while the whole parish contained 523.

Now in 1657 there were in Aston and Cote 16 hides of arable land, and four yard-lands or virgates were reckoned to the hide, so that there were 64 yard-lands. The size of an arable yard-land varied from 24 to 28 ¾ acres2. The affairs of the owners of these lands were regulated by a body of sixteen persons known as “the sixteens.” “The sixteens” was not, I think, an Edition: current; Page: [344]elected body; each hide had a representative in it, and the practice seems to have been that the various persons interested in each particular hide should take it in turns to represent that hide for one year1. On the eve of Lady Day all “the inhabitants” of Aston and Cote met at Aston Cross “to understand who should serve for the sixteens for that year coming, and to choose other officers for the same year.” These elected officers seem at this time to have been three grass-stewards and two “water-haywards.” Before electing them the tenants divided themselves into two parties: the “hundred tenants” chose one grass-steward and one water-hayward; the “lord tenants” chose two grass-stewards and one water-hayward. The meaning of these terms “hundred tenants” and “lord tenants” will become plainer hereafter; meanwhile let us see what “the sixteens” had to do. Each yard-land consisted, as we have seen, of some 27 acres of arable land; these acres were intermixed in the common fields in strips of half an acre or less; but besides this, each yard-land comprised or had annexed to it a right of common for twelve rother-beasts or six horses and also for forty sheep. Then also each yard-land carried with it a right to a lot-mead. The meadow was laid out in sixty-four portions, and in every year each yard-land had one of these portions assigned to it. This assignment was effected by a lottery. Each yard-land had a wooden mark belonging to it, bearing some device; Edition: current; Page: [345]the marks were placed in a hat and the owner of the first mark that came out of the hat became entitled to the piece of meadow that was known as “the first set.” Each owner then went to the meadow and cut in the grass of the portion allotted to him the device proper to his yard-land; he possessed that portion in severalty from the 1st of March to the 3rd of May, and was entitled to the crop of hay. Then also there were certain hams or home-closes of meadow, namely the Bull-ham, the Hayward's ham, the Worden-ham, the Wonter's-ham, the Grass-Stewards-ham, the Water-haywards-ham, the Homage-ham, the Smith's-ham, the Penny-ham, and the Brander's-ham, &c., which were “disposed of at the discretion of the sixteens; some to the officers whose names they bear, some to the public use of the town, as for the making of gates, bridges, &c., and some were sold [that is to say, the crops off them were sold] to buy ale for the merry-meeting of the inhabitants.” Then also lying in the common fields were “several leyes of greensward...two years mowed and the other fed” that were disposed of at the discretion of the sixteens.

Thus the function of the sixteens was to supervise the allotment of the lot-meads, and to dispose according to their discretion of the hams and the leyes of greensward. We further find attributed to them a power of making such orders as they should “conceive beneficial for the inhabitants of Aston and Cote.” They were to hold ordinary meetings three times a year, in Rogation week, in Whitsun week and upon Lammas Eve; but special meetings might be summoned for the redress of grievances, and the sixteens, or a majority of Edition: current; Page: [346]them, might inflict amercements for breaches of their orders; they themselves also might be amerced “by the stewards and the body of the town,” though the sum exacted was not to exceed fourpence. From the evidence before us it is impossible to say exactly what limits were conceived to exist to this power of making ordinances and decreeing punishments, but the sixteens do not seem to have aspired to act as a court of law; nor can we tell what authority they claimed over such of the “inhabitants” of Aston and Cote as had no proprietary interest in any of the sixty-four yard-lands. The custumal of 1593 was signed “by most of the substantial inhabitants of Aston and Cote”; the number of signatures was but eighteen. On the whole we have little reason for calling this community a governing community; rather it is a proprietary community.

The amount of communalism that is involved in it should neither be understated nor yet overstated. Each holder of a yard-land holds his arable land by a separate title, a title that is in no sense communal. Annexed to his arable land he has a right of pasture; this also he holds by a title that is in no sense communal. Again his title to a lot-mead is communal only in this sense, that the whereabouts for the time being of his “moveable freehold” or “moveable copyhold” is determined by a process of casting lots in which he takes part with his fellows. On the other hand “the sixteens” deal at their discretion with the “hams” and the “leyes of greensward.” To judge by the names of the hams, there had at one time been more village officers than there were in the seventeenth century; for instance, there had been a village smith and a village wonter or Edition: current; Page: [347]mole-catcher, and to each of these a ham had been allotted. Even in the seventeenth century there were grass-stewards, who were bound to see that the mounds and fences were in good repair, and who also had to provide four bulls to run on the common pasture, in return for which provision they received eighteenpence for every cow that fed on the common. But whether we suppose the sixteens to have had all along a free power to decide who should occupy and take the profit of these hams, or whether we suppose that each ham had been devoted to the endowment of some communal office, we have in either case a state of things that cannot easily be expressed in the forms of our common law. Who owned these hams?

From the device of placing the ownership of the soil in some obvious lord of a manor we are precluded. This is the most remarkable feature of this remarkable case—the community at Aston was not a manorial community. Of the sixty-four yard-lands, forty belonged to the manor of Aston-Boges, or more correctly Aston-Pugeys, which was then held by a Mr Horde. Of these forty yard-lands, twelve were in the hands of copyholders, while the others had been let by the lord to tenants for terms of years from which we may gather that they had formerly been in his own hand. Of the remaining twenty-four yard-lands, nine were parcel of the manor of Shifford—they had formerly been copyhold, but of late had been enfranchised; four more yard-lands belonged to the manor of Bampton-Deanery, while “about twelve yard-lands” were “ancient freehold” held by some yet other title or set of titles not fully explained by the documents that are before us. Edition: current; Page: [348]Those members of the community who were tenants of the manor of Aston-Pugeys seem to have been known as “the lords tenants,” while the others were known as “the hundred tenants,” probably because though they owed no suit to the manor of Aston-Pugeys, they did owe suit to the court of the hundred of Bampton.

If now we turn to the Hundred Rolls1 and look for this community, though we shall fail in being able to identify with accuracy all of our sixty-four yard-lands and shall read nothing about the sixteens, we shall see the manor of Aston-Pugeys, or Bampton-Pugeys, which is in the hands of Robert Pugeys, Mr Horde's predecessor in title2, the manor of Shifford which is held by the Abbot of Eynsham, and the manor of Bampton-Deanery, or Bampton-Exoniae, which belongs to the Dean and Chapter of Exeter. On the whole it seems that the occupants of the Aston fields are for the more part customary tenants of these three manors; those of the Pugeys manor are called “servi,” those of the Exeter manor “villani”; but probably there are among them a few freeholders, some holding of the Abbot of Eynsham, while a very few may hold either immediately of the king, or of William of Valence, who has a manor of Bampton, to which the Pugeys manor is subordinate3.

Now it has been stated by a learned and careful Edition: current; Page: [349]writer, who seems to have had access to documents not open to the public, that the manors of AstonPugeys, Bampton-Deanery, and Shifford were all of them held of this superior manor of Bampton1. Were this so, then the curiosity of the phenomenon that is before us would be much diminished. We might then explain the case in the following way—Once upon a time there was a great manor of Bampton which comprised (as great manors sometimes did) various sets of common fields, and therefore various groups of cultivators; one of these groups was the Aston group; the owner of this great manor created various sub-manors by interposing various mesne lords between himself and the cultivators. Let us say, for example, that the king has the manor of Bampton, he gives part of it to Imbert de Pugeys, part to Eynsham Abbey, part to the Dean of Exeter; each of the sub-manors thus created comprises part of the Aston group; the members of that group were then divided between various lords—no one court had a direct control over them all; some organization was necessary for the regulation of the course of agriculture, the definition of pasture rights and the like, and either by some definite treaty the lords created that organization of “the sixteens” which we see in the seventeenth century, or else they suffered it to grow up as a convenient machinery for preventing the disputes which would arise among their tenants, disputes which being inter-manorial could not have been determined by any manorial court. As to the Edition: current; Page: [350]few freeholding occupants of the Aston lands, if (as seems possible) they did not hold of any of these submanors, their presence might none the less be easily accounted for: if at any time after the passing of the statute Quia Emptores one of the lords enfranchised a yard-land, that yard-land would no longer be held of him, but would fall out of his manor.

One part of this hypothetical story is true. William the Conqueror had as part of the ancient demesne of the crown a great manor at Bampton (Bentone) worth the very large sum of £82 a year1. Out of this Henry III carved the Pugeys manor, by enfeoffing Imbert de Pugeys with thirty librates of land2. Then the same king granted the superior manor and the hundred of Bampton to William of Valence3. But in the face of such documents as have been accessible to me, it is not proved that either the Abbot of Eynsham's manor of Shifford or the Dean of Exeter's manor of Bampton-Deanery were held of the royal manor of Bampton. It is true that both the Abbot's men and the Dean's men had to attend the court of William of Valence; but then that court was a hundred court. The Abbot of Eynsham claimed the “villa” of Shifford under a charter of Æthelred the Unready, which confirmed yet earlier grants: but whether that charter comprised all or any of the Aston lands it would now be hard to say4. The case of the Exeter manor is Edition: current; Page: [351]somewhat clearer—the church of Exeter seems to have claimed it under a gift of Æthelstan1, and we have a charter whereby William the Conqueror confirming a gift of Edwy gave to the church of Exeter a stretch of land at Bampton, Aston and Chimney2. If then we look for a time (I am far from saying we ought to do this) when the sixty-four yard-lands of Aston were all at the disposal of a single man, it is probable that we must go back far behind the Norman Conquest.

Still of course the question arises—Why should we not go back to an extremely remote age? And here it is that the argument from “survivals” shows its weakness. The case before us may be explained as readily by the hypothesis of an originally servile community which attained an unusual degree of freedom by being partitioned among various lords, as by the hypothesis of an originally free village upon which the manorial system has been clumsily superimposed. Then on the other hand we have no warrant for saying that our sixty-four arable yard-lands had any Edition: current; Page: [352]existence as arable lands even at the date of Domesday Book. We read of Bampton and of Shifford, but it seems very doubtful whether this Aston is mentioned1. Is it not possible that the village or hamlet of Aston is of comparatively modern origin, that some time after the Conquest the lords of several neighbouring manors combined to “assart” a tract of waste land, partitioned it among their manors in such wise that each should have land of every quality—good, bad, indifferent—and for the settlement of their intermanorial affairs instituted an intermanorial congress of tenants or suffered such congress to institute itself? Such suppositions are easily made. Further research may at any moment disprove many of them; but others will grow in their places. The antiquary has always to be learning that an infinite number of meanings may be set on the mystical letters “A.D.L.L.”

But the lessons that a prudent antiquary may learn from the village of Aston are not unimportant. In the first place we see that a cultivating group, and one which displays some unusually communal traits, may exist without a court capable of deciding disputes as to the titles by which the various members hold their shares. Some little power of imposing pecuniary penalties for breaches of customary rules may be requisite, will at all events be useful; but the power of imposing penalties, which is freely exercised in modern clubs of all sorts and kinds, must be carefully distinguished from a power of issuing execution for penalties, seizing the offender's goods or the like, and Edition: current; Page: [353]it is not said that the Aston “sixteens” aspired to this latter, this coercive, power. At any rate, over questions concerning title they had no jurisdiction. This being so, what at first sight looks to modern eyes like a very remarkable communalism, becomes less communal when it is examined. Each member holds his arable land, his pasture rights, even his lot-mead by a several title. He does not hold them because he is a member of this “field-community”; on the contrary, he is a member of this community because he holds them, because he has come to them by inheritance, by purchase, by devise, or by the grant of a manorial lord. Thus we conclude that it is possible for a village community to exist and to go on existing for some centuries, and to exhibit all those peculiar features that we see at Aston, though it is not a jurisdictional community, or at all events has but very few and very slight jurisdictional powers. All this is so, though the acres lie intermixed in the open fields, though this acre is copyhold of one manor, the next acre copyhold of another manor, the next ancient freehold which, so far as any one knows, belongs to no manor at all.

But more, so I think, can be learnt. When we speak of a “survival” we seem to imply that the phenomenon in question, though now it be rare and curious, has in the past been common; what is abnormal in one age was normal in another. In every particular case however the inference, which is thus shrouded from view by a fashionable term, may be required to make itself explicit and may be put upon its defence. In any particular case our curio—be it potsherd, be it institution—may turn out to have always Edition: current; Page: [354]been a curio, may turn out to have been from first to last as unique a thing as any thing can be in this imitative world. Now to say that so far as one's own reading goes, the Aston case stands alone, would—this I fully admit—be no very grave argument. Besides retorts of a more personal kind, it is open to the answer—and in this I can see some plausibility—that while from the thirteenth century onwards the proceedings of courts of law, even of very petty courts, have been diligently recorded and preserved in large numbers, the proceedings of such a body as the Aston “sixteens” would not be put into writing, or no great heed would be taken of the books in which they were noted. Reasons again might be given—I am not sure that they would be very good reasons—why these non-manorial village assemblies have left hardly a mark in such cartularies, monastic annals and Year Books, as have yet been published. But these attempts to shift the burden of the proof backwards and forwards, and to draw inferences from silence, are not likely to compass any very satisfactory conclusion. It seems to me, however, that of the rarity of any institution or arrangement which can in any degree affect men's legal rights, we have one good test. If it be not rare, the law will have an obvious place for it, and will know exactly what to make of it. Of course some arrangement, some mode of conducting business, some class of transactions may, as it were, stand outside the sphere of law for a considerable time. Its legal consequences remain uncertain, possibly there will even be doubts as to whether it be lawful or unlawful. So far from denying this, I think that just in this context we ought to Edition: current; Page: [355]insist upon it. Litigious as Englishmen are and have been for many centuries past, a great deal will always be going on even in England about which the law, if I may so speak, will have not yet made up its mind; but I think that in such cases if we have not to deal with rarities we have to deal with novelties. I think, for example, that if at the end of the middle ages our law, our exceedingly conservative common law, has no obvious place for a certain institution, we must, until the contrary be proved, incline to the conclusion that this institution cannot have been both very ancient and very common.

And now returning to Aston, we will ask once more the question—it is far from being a frivolous question—Who owned these “hams” and “leyes of green-sward” which “the sixteens” claimed to dispose of “at their discretion”? or, to be more technical—Who was seised of them? In whom were the freehold and the fee? Mr Horde, when he sought Sir Orlando's advice, observed that the sixteens, being no corporation, could have no legal estate in the said hams. Bridgman, one is happy to say it, found an answer—“If the custom be a good custom, as I take it to be, the same custom will give the officers an interest as incident to their offices and [such an interest] may belong to an office, as in the case of the Warden of the Fleet.” The great lawyer has recourse to the notion of official property; the owners of these hams are the sixteens; not the community itself, but the officers of the community; each year the land passes from one set of sixteen cotenants to another set of sixteen co-tenants, as the tenancy of the Fleet gaol and (so it seems) certain Edition: current; Page: [356]satellitic shops passes from warden to warden. Now this may have been a very happy use of the only category that was at Bridgman's command, the only category by means of which the common law of his day could have done substantial justice to the men of Aston. Still we cannot but feel that its application to the facts in question is an artifice; an artifice worthy of a great lawyer, it well may be, an artifice that the courts may approve, and which will bring them to a much desired result; but still an artifice. Our “village community” is saved, because the relation in which its “archaic moot” stands to its land, is so like the governorship of a gaol.

That Sir Orlando had to fetch his analogy from a remote field seems plain enough; but to this we must add—so I think—that he had to find it in an unfertile field, and in one that had but recently been brought under cultivation. Of course in his day it was undoubted law that “land may be appurtenant to an office”; but if we look for the cases which illustrated this proposition, we shall, I believe, find very few. There is just one standing illustration of it which does duty in report after report and text-book after text-book—there is land appurtenant to the Wardenship of the Fleet. Now I think that we have grave cause for doubting whether this classical instance was a very old one; but I am more concerned to insist upon its extreme rarity than upon its novelty. Our mediaeval law had little, if any, room for “official property.” Within the sphere of ecclesiastical arrangements, it had by slow degrees developed the notion of the “corporation sole.” At first the saint owns the land that has been given to him; in later and more rationalistic times his Edition: current; Page: [357]ownership is transferred to the personified “church”; and thence in yet later days it is transferred either to a “corporation aggregate” or to a somewhat analogous creature of the law, which here in England bears the odd title “corporation sole,” while elsewhere it appears as the personified dignitas or sedes. But outside the ecclesiastical sphere, there has been no need, little room, for these feats of “juristic construction.” Even the personification of “the crown” has been a slow process, and has never gone very far; he who would distinguish between “the crown” and the king, unless he be very cautious, is likely even in Coke's day to fall into “a damned and damnable opinion,” is likely in earlier times to lose his head as a traitor. We got on well enough without official property, without “corporations sole” of a temporal kind. The non-hereditary royal officer, whose office involved an occupation of or a control over land, was seldom, if ever, conceived as being the owner, or to speak more accurately, the freeholder, of that land; he was but its custos, and the freehold was in the king. On the other hand, the offices—they were chiefly ornamental offices—which had become hereditary—were but seldom connected in any inseverable fashion with the tenancy of lands, save where the discharge of the office was regarded as the service due from the land, and in that case it was the office that was appurtenant to—or rather that was due from or issuing out of—the land, and not the land that was appurtenant to the office. I cannot but think that there must have been some highly peculiar and almost unique facts in the case of the Warden of the Fleet, which prevented it from falling into one Edition: current; Page: [358]of these well-known categories. But at any rate the title “land appurtenant to an office” has, so far as I can see, been from first to last somewhat of a caput mortuum in our books; and yet it is under this heading that Sir Orlando Bridgman is constrained to bring the case of the Aston villagers.

Could he have worked out his theory in the thirteenth century? I seriously doubt it. If “the sixteens” existed in the Aston of that age—and I am not denying that they did—most of them were unfree men. Would it not have been grotesque to attribute to men, who had but precariously customary rights in their arable virgates, the freehold in the accessory hams and leyes? And then is it not law that if my villain acquires a freehold, I may seize it and appropriate it? And what if the sixteen co-owners misconduct themselves and refuse to perform their “official” duties? Has thirteenth-century law any mode of bringing them to book? Court of Chancery there is none for the enforcement of a trust. The king will hardly be induced to set in motion those prerogative processes of administrative law which can be brought to bear upon royal officers, including the ruling officers of the boroughs. The villagers must trust to pure common law, to the writs that are “of course,” and I think that in easily conceivable circumstances they will have the greatest difficulty in enforcing their custom against their freeholding “officers.”

Now the argument that the law of the later middle ages had no place, or at all events no obvious and convenient place, for such an arrangement as is discovered at Aston, might, were it tendered as a direct Edition: current; Page: [359]proof that such an arrangement cannot be very ancient, be encountered by the assertion that, on the contrary, the incapacity of the law to explain the phenomena may well be the incapacity of modern law to explain ancient phenomena, may well, in this particular instance, be the incapacity of feudal law to compass facts that belong to a prefeudal age, or (to use another set of terms) the incapacity of individualistic law to compass facts that belong to a communistic age. In the debate that would thus be raised much might be said on the one side and on the other; in particular, were I to enter into the discussion, I should like to raise the question whether it is very probable that these ideas of corporate ownership and official ownership, which we seem to see our English lawyers laboriously constructing in the fourteenth and fifteenth centuries, are in truth very ancient and even primitive ideas which have for a while been submerged and even destroyed by a flood of feudalism and individualism. But waiving this general question, we may yet learn a valuable lesson from the grave difficulties that our common law finds in the Aston case. Whatever we may think of very remote times, we seem to be driven to the conclusion that for several centuries before Bridgman's day arrangements similar to those which existed in this Oxfordshire village, had been exceedingly uncommon. The learned conveyancer, the future chief justice and lord keeper, does not tell Mr Horde that what is seen at Aston may be seen in a hundred other villages, that the ownership of land by “sixteens” or similar officers is a well-known thing; he does not suggest that the Aston community could make itself a corporation by Edition: current; Page: [360]prescription; he sends his client all the way to the Fleet gaol for an analogy. But during the past centuries the open field system of husbandry had been, and in Bridgman's day it still was, exceedingly common, and this too in many a village which as a whole was not subject to any manorial control.

It seems to me that some of our guides in these matters are in danger of exaggerating the amount of communalism that is necessarily implied in the open field system of husbandry. We have of course the clearest proof that the system can go on subsisting in days when manorial control has become hardly better than a name, that it can subsist even in the eighteenth and nineteenth centuries. We have also, so I think, fairly clear proof that it can subsist from century to century in many a village that has no court, no communal assembly. No communal bye-laws and indeed no legal recognition of the communal custom are absolutely necessary for the maintenance of the wonted course of agriculture; the common law of trespass maintains it. As a matter of fact, a man cannot cultivate his own strips without trespassing on the intermixed strips of his neighbours. He must let them trespass on his land at the usual times and seasons, because at the usual times and seasons he will want to trespass on their land. The effect of this may be that his right to till his land as and when he thinks best will be much restricted; but the restraint will be set by the rights of other individuals, not by the rights or the bye-laws of a community1. In the village which Edition: current; Page: [361]has open fields we may see each of the neighbours owning his arable strips by a several title, enjoying his pasture rights by a several title. Even if there be lot-meads, each of these “moveable freeholds” may be held by a several title, and their rotation may be regarded as having been fixed once for all, and as being alterable by nothing short of an unanimous agreement or a statute of the realm. Open field husbandry has shown itself to be not incompatible with a very perfect individualism, a very complete denial that the village community has any proprietary rights whatever or even any legal organization.

This having been so in modern times, this (to all appearance) having been so throughout the later middle ages, are we quite certain that it has not been so from the beginning? I do not aspire to answer this question, still I cannot but think that some of our current theories are finding it too simple a question, are failing to notice the ease with which a common field husbandry, when once established by some original allotment of land, can maintain itself even though there be in the case nothing that we dare call a proprietary corporation or a self-governing community.

For my own part I cannot assume, as some in the Edition: current; Page: [362]heat of controversy seem apt to assume, that concerning the ancient history of the typical English village (I say “typical,” for no one supposes that all our townships have had a similar history), we have just two theories to choose between and no more; that if we cannot accept as the normal starting point “great property,” widespread servility and the Roman villa, we must begin by ascribing land-ownership to free village communities. The free village, the village which as a whole is free from seignorial control, I can somewhat easily believe in, for—so it seems to me—I can see many such a village in the pages of Domesday Book, many a village full of sokemen, who may fairly be described as free land-owners, though they have been commending themselves, one to this lord, another to that. Whether such a state of things is common or rare, typical or abnormal, a survival or a novelty—these are serious questions; but the village full of free land-owners we can readily conceive. On the other hand the village land-owning corporation, can we conceive this and carry back our concept into—I will not say archaic, I will say—Anglo-Saxon times? Did men distinguish between co-ownership (which in truth is just as “individualistic” as any several ownership can be) and ownership vested in corporations? Did they distinguish between the corporation and the group of corporators, between the universitas and the aggregate of singuli? Did the villager feel that when he reaped a crop, or turned out his beasts to pasture, he was exercising not a dominium but a jus in re aliena, that he was using land that belonged neither to him, nor yet to him and his neighbours, but Edition: current; Page: [363]to a quite other person, an invisible being, a thought? Did he again distinguish between manifestations of proprietary right and manifestations of governmental power? Was he certain—are we certain—that when the village moot (if any village moot there was) prescribed a particular course of agriculture, it was exercising land-ownership and not merely governing a district, not merely behaving as a modern town council behaves when it decides what buildings may be set up within the limits of the borough? May it not again be that such communalism as we find in the ordinary village of later times is in a large measure the result of seignorial pressure? In fine, is it not very possible that the formula of development should be neither “from communalism to individualism,” nor yet “from individualism to communalism,” but “from the vague to the definite”?—England, owing to its theoretically perfect feudalism, may not be so good a field for the pursuit of these questions as some other countries in which they are being diligently discussed. There is all the more reason why we should expressly raise them and keep them before our minds; otherwise it may fall out that we shall turn history topsy-turvey, and attribute to primitive man many an idea that he could not for the life of him have grasped.

Old English Law.

When we speak of a body of law, we use a metaphor so apt that it is hardly a metaphor. We picture to ourselves a being that lives and grows, that preserves its identity while every atom of which it is composed is subject to a ceaseless process of change, decay, and renewal. At any given moment of time—for example, in the present year—it may, indeed, seem to us that our legislators have, and freely exercise, an almost boundless power of doing what they will with the laws under which we live; and yet we know that, do what they may, their work will become an organic part of an already existing system.

Already, if we look back at the ages which are the most famous in the history of English legislation—the age of Bentham and the radical reform, the age which appropriated the gains that had been won but not secured under the rule of Cromwell, the age of Henry VIII, the age of Edward I (“our English Edition: current; Page: [418]Justinian”)—it must seem to us that, for all their activity, they changed, and could change, but little in the great body of law which they had inherited from their predecessors. Hardly a rule remains unaltered, and yet the body of law that now lives among us is the same body that Blackstone described in the eighteenth century, Coke in the seventeenth, Littleton in the fifteenth, Bracton in the thirteenth, Glanvill in the twelfth. This continuity, this identity, is very real to us if we know that for the last seven hundred years all the judgments of the courts at Westminster have been recorded, and that for the most part they can still be read. Were the world large enough to contain such a book, we might publish not merely a biography, but a journal or diary, of English law, telling what it has done, if not day by day, at least term by term, ever since the reign of Richard I; and eventful though its life may have been, it has had but a single life.

Beyond these seven centuries there lie six other centuries that are but partially and fitfully lit, and in one of them a great catastrophe, the Norman Conquest, befell England and the law of England. However, we never quite lose the thread of the story. Along one path or another we can trace back the footprints, which have their starting-place in some settlement of wild Germans who are invading the soil of Roman provinces, and coming in contact with the civilisation of the old world. Here the trail stops, the dim twilight becomes darkness; we pass from an age in which men seldom write their laws to one in which they cannot write at all. Beyond lies the realm of guesswork.

About the year 600, Ethelbert, king of the Kentishmen, by the counsel of his wise-men, caused the laws of his people to be set down in writing. He had just received the Christian faith at the hands of Roman missionaries, and it was in imitation of the Romans that he and his folk desired to have written laws. His reign overlaps the reign of Justinian, and perhaps he had heard how in the Far East the Roman Emperor had been legislating on a magnificent scale. English law begins to speak just when Roman law has spoken what will, in a certain sense, be its final words. On the continent of Europe the same thing had been happening. No sooner did the barbarian tribe feel the influence of Rome than it wished for a written code of laws. Ethelbert and his Jutes in Kent are doing what the Salian Franks did a century earlier when they wrote down their famous Lex Salica; but while on the Continent the laws of the conquering Germans are written in the Latin language of the conquered, in England the barbarians from the first write down their law in the language that they speak, the language which is to become English.

Ethelbert's laws have come down to us, though only in a copy made after the Norman Conquest. They may seem to us primitive enough. The emperor at Byzantium, could he have seen them, would assuredly have denied that they had any points in common with the Roman law-books, save that they were laws, and were in writing. Nevertheless, we cannot call them primitive in any absolute sense of that term. They are Christian. Let us look at the first sentence, the first recorded utterance of English law:—“God's fee Edition: current; Page: [420][property] and the church's, twelve-fold; bishop's fee, eleven-fold; priest's fee, nine-fold; deacon's fee, sixfold; clerk's fee, three-fold.” Churches, bishops, priests, deacons, clerks—these are no archaic German institutions; they are Latin, they have Latin names which must be taken up bodily into the Teutonic speech of the new converts. Unfortunately (so we may now think), Germanic law has no written memorials of the days of its heathenry. Every trace but the very faintest of the old religion has been carefully expurgated from all that is written, for all that is written passes under ecclesiastical hands. Thus we may guess that a new force is already beginning to transfigure the whole sum and substance of barbaric law, before that law speaks the first words that we can hear. It is a wild plant that has already been torn from its native soil and set to grow in a garden. The change of faith, and the substitution of one order of religious rites for another, would in any case mean much, for we have reason to believe that the old law had in it a strong sacral element; but as it is, they mean the influence of the old civilised world upon the new barbarian world.

Ethelbert's laws consist of ninety brief sentences. Two will serve as samples:—“If one man strike another with the fist on the nose—three shillings.” “If the eye be struck out let boot [i.e. amends] be made with fifty shillings.” To call this brief tariff a code may seem strange, but there are not wanting signs that the wise-men of Kent are committing to writing as much of their traditional law as they can remember in the form of abstract propositions. No Edition: current; Page: [421]doubt much more law—in particular, a law of procedure—is known to them implicitly. If a concrete case were to occur, they would be ready with a doom; but when asked for general rules, these ninety are all that they can call to mind. Thus we may say that our legal history starts with an act of codification. This code became the basis of Kentish law. Subsequent kings in the course of the seventh century, Lothair, Edric, Wihtred, with the counsel of the wise, add some fifty new dooms to the written law of the men of Kent.

Then the scene changes to Wessex. In the middle of the seventh century the West Saxons received Christianity; before its end they had written laws, the laws of Ine. By the advice of his bishops and of the oldest and wisest men, Ine published a set of laws which tell us a good deal more than we can learn from the Kentish series.

The next legislator whose work has come down to us is the great Alfred. His laws are divided from those of his ancestor Ine by a period of two centuries or thereabouts. This is the one great gap in our continuous legal history. In the history of religion and learning and letters these centuries are far from being the darkest. They cover the time when Northumbria was for a while a centre of light—not for England only, but for the world at large. It may be that we have lost some things. It is fairly certain that Offa of Mercia, in the days of Mercia's greatness, issued written laws. When Alfred is king, when all England is becoming united under the vigorous princes of the West Saxon house, the three legislators whose names Edition: current; Page: [422]are still remembered are Ethelbert of Kent, Ine of Wessex, and Offa of Mercia. From the manner in which Alfred speaks of them and of their laws we may gather that, heavy though our losses may have been, we have lost no document that testified to any revolutionary change in the law. Though nearly three hundred years have gone by since Ethelbert's death, his dooms are still in force among the Kentish people. Alfred tells us that he dared to add but little of his own to the work of his three great forerunners; and though we can see that during the last two centuries some new legal ideas have emerged, still the core of the law is what it was. What can be put in writing is for the more part a tariff of the sums that must be paid when deeds of violence are done.

The Alfred of sober truth is not the Alfred of legal legend—for the history of law has its legends—the inventive architect of a British Constitution; but his laws are the first member of a grand series—the capitularies, we might call them, of the English kings of the West Saxon house. Edward the Elder, Ethelstan, Edmund, and Edgar, with the counsel of their wise-men, legislate in a bold, masterful fashion. For the better maintenance of the peace, they sharpen the old rules and they make new rules. Written law accumulates somewhat rapidly; it is expected by this time that the doomsmen will be able to find in the “doombook,” the book of written law, judgments apt for most of the cases which come before them. This series extends from the beginning to the end of the tenth century. The laws of Ethelred continue it into the eleventh century. His laws were many, for he had Edition: current; Page: [423]to say the same thing over and over again; we can see on their face that they were ineffectual. He begs and prays men to keep the peace and desist from crime; he must beg and pray, for he cannot command and punish. The Danes were ravaging and conquering; the State tottered; the house of Cerdic fell. It was left for the mighty Canute to bring to a noble close the first great period in the history of English law, the period during which laws were written in the English language, the period which it is convenient to call Anglo-Saxon. Canute's code we must, if we have regard to the age in which it was issued, call a long and a comprehensive code. It repeats, with improvements, things that have been said before; the great Dane was able to enforce as laws rules which in the mouth of his predecessor had been little better than pious wishes; but it also contained many things that had not been said before. The whole economic and political structure of society was undergoing a great change. If by any two words we could indicate the nature of this elaborate process, we might say that tribalism was giving place to feudalism. Had Canute's successors been his equals in vigour and wisdom, perhaps the change might have been consummated peacefully, and by means of written laws which we now might be reading. As it was, there came to the throne the holy but imbecile Edward. In after days he won not only the halo of the saint, to which he may have been entitled, but the fame, to which he certainly was not entitled, of having been a great legislator. In the minster that he reared, king after king made oath to observe the laws of the Confessor. So far as we Edition: current; Page: [424]know, he never made a law. Had he made laws, had he even made good use of those that were already made, there might have been no Norman Conquest of England. But then had there been no Norman Conquest of England, Edward would never have gained his fictitious glories. As it was, men looked back to him as the last of the English kings of the English—for of Harold, who had become the perjured usurper, there could be no talk—and galled by the yoke of their French masters, they sighed for St Edward's law, meaning thereby the law that had prevailed in a yet unvanquished England.

Now these enacted and written laws of our fore-fathers, representing as they do some four centuries and a half, representing as long a period as that which divides us from the Wars of the Roses, will seem a small thing to the first glance of a modern eye. They might all be handsomely printed on a hundred pages such as that which is now before the reader. A session of Parliament which produced no larger mass of matter we should nowadays regard as a sterile session. In the Georgian age many more words than are contained in the whole code of Canute would have been devoted to the modest purpose of paving and lighting the borough of Little Peddlington. It is but fair to our ancient kings and their wise-men to say that when they spoke, they spoke briefly and pointedly. They had no fear that ingenious lawyers would turn their words inside out. “God's fee and the Church's, twelve-fold”—they feel that they need say no more than this about one very important matter. Also, we have to remember that life was simple; men could do, Edition: current; Page: [425]men could wish to do, but few things. Our increasing mastery over the physical world is always amplifying the province of law, for it is always complicating the relationships which exist between human beings. Many a modern Act of Parliament is the product of the steam-engine, and there is no great need for a law of copyright until long after the printing-press has begun its work. For all this, however, it is true that these old written and enacted dooms contain but a part of the law which was enforced in England.

If we say that law serves three great purposes, that it punishes crime, redresses wrong, and decides disputes—and perhaps we need not go into the matter more deeply than this—then we may go on to say that in ancient days the two first of these three purposes are indistinguishably blended, while with the third the legislator seldom troubles himself. If he can maintain the peace, suppress violence and theft, keep vengeance within moderate bounds, he is well satisfied; he will not be at pains to enact a law of contract or of inheritance, a law of husband and wife, a law of landlord and tenant. All this can safely be left to unwritten tradition. He has no care to satisfy the curiosity of a remote posterity which will come prying into these affairs and wish to write books about them. Thus, to take one example, the courts must have been ready to decide disputes about the property of dead men; there must have been a general law, or various tribal or local laws, of inheritance. But the lawgivers tell us nothing about this. If we would recover the old rules, we must make the best that we may of stray hints and chance stories, and of those archaisms which we find embedded in the law of later days.

The laws of the folk, the “folk-right”—“law” is one of those words which the Danes bring with them—is known to the men of the folk, but more especially to the old and wise. The freemen, or the free landowners, of the hundred are in duty bound to frequent the “moot,” or court, of the hundred, to declare the law and to make the dooms. The presiding alderman or sheriff turns to them when a statement of the law is wanted. As yet there is no class of professional lawyers, but the work of attending the courts is discharged chiefly by men of substance, men of thegnly rank; the small folk are glad to stay at home.

Also, some men acquire a great reputation for legal learning, and there was much to be learnt, though no one thought of setting it in writing. We should assuredly make a great mistake were we to picture to ourselves these old hundred-courts as courts of equity, where “the natural man” administered an informal “law of Nature.” For one thing, as will be said elsewhere, the law of the natural man is supernatural law, a law which deals in miracles and portents. But then, again, it is exceedingly formal. It is a law of procedure. The right words must be said without slip or trip, the due ceremonial acts must be punctiliously performed, or the whole transaction will go for naught. This is the main theme of the wise-man's jurisprudence. One suspects that sometimes the man who, in the estimate of his neighbours, has become very wise indeed, has it in his power to amplify tradition by devices of his own. We hear from Iceland a wonderful tale of a man so uniquely wise that though he had made himself liable to an action of a particular kind, no one could bring that action against him, for he and Edition: current; Page: [427]only he knew the appropriate words of summons: to trick him into a disclosure of this precious formula is a feat worthy of a hero. But formalism has its admirable as well as its ludicrous side. So long as law is unwritten, it must be dramatised and acted. Justice must assume a picturesque garb, or she will not be seen. And even of chicane we may say a good word, for it is the homage which lawlessness pays to law.

We have called the written laws “tariffs.” They prescribe in great detail the various sums of money which must be paid by wrong-doers. There are payments to be made to the injured person or the kinsfolk of the slain man; there are also payments to be made to the king, or to some other representative of the tribe or nation. The growth of this system of pecuniary mulcts gradually restricts the sphere of selfhelp and vengeance. The tie of blood-relationship has been the straitest of all bonds of union. If a man of one family was slain by the man of another, there would be a blood-feud, a private war. The State steps in and compels the injured family to accept the dead man's “wergild”—the dead man's price or worth, if it be duly tendered. King Edmund goes so far as to insist that the vengeance of the dead man's kinsfolk is not to comprise the guiltless members of the slayer's clan. The law's last weapon against lawlessness is outlawry. The contumacious offender is put outside the peace; he becomes the foe of all law-abiding men. It is their duty to waste his land and burn his house, to pursue him and knock him on the head as though he were a beast of prey, for “he bears the wolf's head.” As the State grows stronger, less clumsy modes of Edition: current; Page: [428]punishment become possible; the criminal can be brought to trial, and definitely sentenced to death or mutilation. We can watch a system of true punishments—corporeal and capital punishments—growing at the expense of the old system of pecuniary mulcts, blood-feud, and outlawry; but on the eve of the Norman Conquest mere homicide can still be atoned for by the payment of the dead man's price or “wergild,” and if that be not paid, it is rather for the injured family than for the State to slay the slayer. Men of different ranks had different prices: the thegn was worth six ceorls, and it seems very plain that if a ceorl killed a thegn, he had to die for it, or was sold into slavery, for a thegnly wergild was quite beyond the reach of his modest means. In the twelfth century the old system perished of over-elaboration. The bill that a man-slayer ran up became in the days of feudalism too complex to be summed, too heavy to be paid; for the dead man's lord, the lord of the place where the blood was shed, and it may be many other lords, would claim fines and forfeitures. He had to pay with his eyes or with his life a debt that he could not otherwise discharge.

As yet our Germanic law had not been exposed to the assaults of Roman jurisprudence, but still it had been slowly assuming and assimilating the civilisation of the old world. This distinction we must draw. On the one hand, there has been no borrowing from the Roman legal texts. We have no proof whatever that during the five centuries which preceded the Norman Conquest any one copy of a Roman law-book existed in England. We hear faint and vague tidings Edition: current; Page: [429]of law being taught in some of the schools, but may safely believe that very little is meant thereby. The written dooms of our kings have been searched over and over again by men skilled in detecting the least shred of Roman law under the most barbaric disguise, and they have found nothing worthy of mention. That these dooms are the purest specimens of pure Germanic law has been the verdict of one scholar after another. Even the English Church, though its independence may often have been exaggerated, became very English. On the other hand, as already said, to become Christian was in a certain sense to become Roman. Whether, had an impassable wall been raised round England in the last quarter of the sixth century, England would not be a barbarous country at this day—that is a question which cannot be answered. As a matter of fact, we had not to work out our own civilisation; we could adopt results already attained in the ancient world. For example, we did not invent the art of writing, we adopted it; we did not invent our alphabet, we took the Roman. And so again—to come nearer to our law—we borrowed or inherited from the Old World the written legal document, the written conveyance, the will. The written conveyance was introduced along with Christianity; to all seeming, Ethelbert himself began the practice of “booking” lands to the churches. We have a few genuine “land-books” from the seventh and eighth, many from the later centuries. For the more part they are written in Latin, and they were fashioned after Italian models; but at the same time we can see that those models have been barbarised and misunderstood; the English Edition: current; Page: [430]scribes pervert the neat devices of Roman lawyers. Any phrase which draws a contrast between a nation's law and its civilisation is of course open to objection. But let us suppose that at the present day a party of English missionaries is setting forth to convert a savage tribe: perhaps no one of them would know enough of English law to carry him through the easiest examination, and yet they would take with them many ideas that are in a certain sort the ideas of English law. Without being able to define murder, they would know that in this country murderers are condemned to death; they would think that a written expression of a man's last will should be respected, though they might well doubt whether a will is revoked by the testator's marriage. So it was in the seventh century. From the days of Ethelbert onwards English law was under the influence of so much of Roman law as had worked itself into the tradition of the Catholic Church.

English aw under Norman and Angevin.

The Normans when they invaded England were in one important particular a less civilised race than were those English whom they came to subjugate. We may say with some certainty that they had no written laws. A century and a half ago a king of the Franks had been compelled to cede a large province to a horde of Scandinavian pirates. The pirates had settled down as lords of a conquered people; they had gradually adopted the religion, the language, and the Edition: current; Page: [431]civilisation (such as it was) of the vanquished; they had become Frenchmen. They may have paid some reverence to the written laws of the Frankish race, to the very ancient Lex Salica and the capitularies of Merovingian and Carlovingian kings. But these were fast becoming obsolete, and neither the dukes of the Normans nor their nominal overlords, the kings of the Franks or French, could issue written dooms such as those which Canute was publishing in England. Some excellent traditions of a far-off past, of the rule of Charles the Great, the invaders could bring with them to England; and these transplanted into the soil of a subject kingdom, could burst into new life and bear new fruit—the great record that we call “Domesday Book” is a splendid firstfruit—but written laws they had none.

To all seeming, the Conqueror meant that his English subjects should keep their own old laws. Merely duke of the Normans, he was going to be king in England, and he was not dissatisfied with those royal rights which, according to his version of the story, had descended to him from King Edward. About a few points he legislated. For example, the lives of his followers were to be protected by the famous murder-fine. If a Frenchman was found slain, and the slayer was not produced, a heavy sum was to be exacted from the district in which the crime was done. The establishment of a presumption that every murdered man is a Frenchman until the contrary is proved—a presumption highly advantageous to the king's exchequer—gave rise in later days to the curious process known as “the presentment of Englishry.” Edition: current; Page: [432]The hundred had to pay the fine unless the kinsfolk of the dead man would testify to his English birth. But this by the way. William had also to regulate the scope of that trial by battle which the Normans brought with them, and in so doing he tried to deal equitably with both Normans and English. Also it was necessary that he who had come hither as in some sort the champion of Roman orthodoxy should mark off the sphere of spiritual from that of temporal law by stricter lines than had yet been drawn in England. Much, again—though by no general law—he altered in the old military system, which had lately shown itself to be miserably ineffectual. Dealing out the forfeited lands amongst his barons, he could stipulate for a force of armoured and mounted knights. Some other changes he would make; but in the main he was content that the English should live under their old law, the law that now bore the blessed Edward's name.

And so again when on the death of Rufus—from Rufus himself we get and we expect no laws—Henry seized the crown, and was compelled to purchase adherents by granting a charter full of all manner of promises, made to all manner of people—the promise by which he hoped to win the hearts of Englishmen was that he would restore them to Edward's law with those amendments that the Conqueror had made in it. Henry himself, great as a governor, was no great legislator. A powerful central tribunal, which is also an exacting financial bureau, an “exchequer,” began to take definite shape under the management of his expert ministers; but very few new laws were Edition: current; Page: [433]published. The most characteristic legal exploits of the Norman period are the attempts made by various private persons to reconstruct “the law of St Edward.” They translate some of the old English dooms into Latin as best they can—a difficult task, for the English language is rapidly taking a new shape. They modify the old dooms to suit a new age. They borrow from foreign sources—from the canon law of the Catholic Church, from Frankish capitularies, now and again from the Roman law-books. But in Henry I's reign they still regarded the Old English dooms, the law of King Edward, as the core of the law that prevails in England. They leave us wondering how much practical truth there is in what they say; whether the ancient criminal tariffs that they transcribe are really observed; whether the Frenchmen who preside in court pay much attention to the words of Canute, even when those words have been turned into Latin or into French. Still, their efforts assure us that there has been rather a dislocation than a complete break in the legal history of England; also that the Frenchmen have not introduced much new law of a sufficiently definite kind to be set down in writing.

As yet the great bulk of all the justice that was done, was done by local courts, by those shire-moots and hundred-moots which the Conqueror and Henry I had maintained as part of the ancient order, and by the newer seignorial courts which were springing up in every village. The king's own court was but a court for the protection of royal rights, a court for the causes of the king's barons, and an ultimate tribunal at which a persistent litigant might perhaps arrive Edition: current; Page: [434]when justice had failed him everywhere else. Had it continued to be no more than this, the old English law, slowly adapting itself to changed circumstances, might have cast off its archaisms and become the law for after-times, law to be written and spoken in English words. Far more probably “St Edward's law” would have split into a myriad local customs, and then at some future time Englishmen must have found relief from intolerable confusion in the eternal law of Rome. Neither of these two things happened, because under Henry II the king's own court flung open its doors to all manner of people, ceased to be for judicial purposes an occasional assembly of warlike barons, became a bench of professional justices, appeared periodically in all the counties of England under the guise of the Justices in Eyre. Then begins the process which makes the custom of the king's court the common law of England. Ever since the Conquest the king's court had been in a very true sense a French court. It had been a French-speaking court, a court whose members had been of French race, and had but slowly been learning to think of themselves as Englishmen. Its hands had been very free. It could not, if it would, have administered the Old English written laws in their native purity: for one thing they were unintelligible; for another thing in the twelfth century they had become barbarous—they dealt with crime in a hopelessly old-fashioned way. On the other part, there was, happily, no written Norman code, and the king did not mean to be in England the mere duke he had been in Normandy. And so the hands of his court were very free; it could Edition: current; Page: [435]be a law unto itself. Many old English institutions it preserved, in particular those institutions of public law which were advantageous to the king—the king, for instance, could insist that the sheriffs were sheriffs, and not hereditary vicomtes—but the private law, law of land tenure, law of possession, of contract, of procedure, which the court develops in the course of the twelfth century, is exceedingly like a coutume from Northern France. Hundreds of years will elapse before anyone tries to write about it in English; and when at length this is done, the English will be an English in which every important noun, every accurate term, is of French origin.

We may say a little more about the language of our law, for it is not an uninteresting topic. From the Conquest onwards until the year 1731 the solemnest language of our law was neither French nor English, but Latin. Even in the Anglo-Saxon time, though English was the language in which laws were published and causes were pleaded, Latin was the language in which the kings, with Italian models before them, made grants of land to the churches and the thegns. In 1066 the learned men of both races could write and speak to each other in Latin. We shall be pretty safe in saying that anyone who could read and write at all could read and write Latin. As to French, it was as yet little better than a vulgar dialect of Latin, a language in which men might speak, but not a language in which they would write anything except perhaps a few songs. The two tongues which the Conqueror used for laws, charters and writs were Latin and English. But Latin soon gets the upper hand, and Edition: current; Page: [436]becomes for a while the one written language of the law. In the king's Chancery they write nothing but Latin, and it is in Latin that the judgments of the king's courts are recorded. This, as already said, is so until the year 1731; to substitute English for Latin as the language in which the king's writs and patents and charters shall be expressed, and the doings of the law-courts shall be preserved, requires a statute of George II's day.

Meanwhile there had been many and great changes. Late in the twelfth or early in the thirteenth century French was beginning to make itself a language in which not only songs and stories but legal documents could be written. About the middle of the thirteenth century ordinances and statutes that are written in French began to appear. Just for one moment England puts in a claim to equality. Henry III “pur3 Godes fultume king on Engleneloande” issued one proclamation in English. But this claim was either belated or premature. Under Edward I French, though it cannot expel Latin from the records of litigation, becomes the language in which laws are published and law-books are written. It continues to be the language of the statute-book until the end of the Middle Ages. Under Henry VII English at length becomes the speech in which English lawgivers address their subjects, though some two hundred and fifty years must yet pass away before it will win that field in which Latin is securely entrenched.

As the oral speech of litigants and their advisers, French has won a splendid victory. In the king's own court it must prevail from the Conquest onwards, but Edition: current; Page: [437]in the local courts a great deal of English must long have been spoken. Then, however, under Henry II began that centralising movement which we have already noticed. The jurisprudence of a French-speaking court became the common law, the measure of all rights and duties, and it was carried throughout the land by the journeying justices. In the thirteenth century men when they plead or when they talk about law, speak French; the professional lawyer writes in French and thinks in French. Some power of speaking a decent French seems to have been common among all classes of men, save the very poorest; men spoke it who had few, if any, drops of foreign blood in their veins. Then in 1362, when the prolonged wars between England and France had begun, a patriotic statute endeavoured to make English instead of French the spoken tongue of the law-courts. But this came too late; we have good reason for thinking that it was but tardily obeyed, and at any rate, lawyers went on writing about law in French. Gradually in the sixteenth century their French went to the bad, and they began to write in English; for a long time past they had been thinking and speaking in English. But it was an English in which almost all the technical terms were of French origin. And so it is at the present day. How shall one write a single sentence about law without using some such word as “debt,” “contract,” “heir,” “trespass,” “pay,” “money,” “court,” “judge,” “jury”? But all these words have come to us from the French. In all the world-wide lands where English law prevails, homage is done daily to William of Normandy and Henry of Anjou.

What Henry did in the middle of the twelfth century was of the utmost importance, though we might find ourselves in the midst of obsolete technicalities were we to endeavour to describe it at length. Speaking briefly, we may say that he concentrated the whole system of English justice round a court of judges professionally expert in the law. He could thus win money—in the Middle Ages no one did justice for nothing—and he could thus win power; he could control, and he could starve, the courts of the feudatories. In offering the nation his royal justice, he offered a strong and sound commodity. Very soon we find very small people—yeomen, peasants—giving the go-by to the old local courts and making their way to Westminster Hall, to plead there about their petty affairs. We may allow that in course of time this concentrating process went much too far. In Edward I's day the competence of the local courts in civil causes was hemmed within a limit of forty shillings, a limit which at first was fairly wide, but became ever narrower as the value of money fell, until in the last century no one could exact any debt that was not of trifling amount without bringing a costly action in one of the courts at Westminster. But the first stages of the process did unmixed good—they gave us a common law.

King Henry and his able ministers came just in time—a little later would have been too late: English law would have been unified, but it would have been Romanised. We have been wont to boast, perhaps too loudly, of the pure “Englishry” of our common law. This has not been all pure gain. Had we Edition: current; Page: [439]“received” the Roman jurisprudence as our neighbours received it, we should have kept out of many a bad mess through which we have plunged. But to say nothing of the political side of the matter, of the absolute monarchy which Roman law has been apt to bring in its train, it is probably well for us and for the world at large that we have stumbled forwards in our empirical fashion, blundering into wisdom. The moral glow known to the virtuous schoolboy who has not used the “crib” that was ready to his hand, we may allow ourselves to feel; and we may hope for the blessing which awaits all those who have honestly taught themselves anything.

In a few words we must try to tell a long story. On the continent of Europe Roman law had never perished. After the barbarian invasions it was still the “personal law” of the conquered provincials. The Franks, Lombards, and other victorious tribes lived under their old Germanic customs, while the vanquished lived under the Roman law. In course of time the personal law of the bulk of the inhabitants became the territorial law of the country where they lived. The Roman law became once more the general law of Italy and of Southern France; but in so doing it lost its purity, it became a debased and vulgarised Roman law, to be found rather in traditional custom than in the classical texts, of which very little was known. Then, at the beginning of the twelfth century, came a great change. A law-school at Bologna began to study and to teach that Digest in which Justinian had preserved the wisdom of the great jurists of the golden age. A new science spread outwards from Edition: current; Page: [440]Bologna. At least wherever the power of the emperor extended, Roman law had—so men thought—a claim to rule. The emperors, though now of German race, were still the Roman emperors, and the laws of their ancestors were to be found in Justinian's books. But further, the newly discovered system—for we may without much untruth say that it was newly discovered—seemed so reasonable that it could not but affect the development of law in countries such as France and England, which paid no obedience to the emperors.

And just at this time a second great system of cosmopolitan jurisprudence was taking shape. For centuries past the Catholic Church had been slowly acquiring a field of jurisdiction that was to be all her own, and for the use of the ecclesiastical tribunals a large body of law had come into being, consisting of the canons published by Church Councils and the decretal epistles—genuine and forged—of the Popes. Various collections of these were current, but in the middle of the twelfth century they were superseded by the work of Gratian, a monk of Bologna. He called it “The Concordance of Discordant Canons,” but it soon became known everywhere as the Decretum. And by this time the Popes were ever busy in pouring out decretal letters, sending them into all corners of the western world. Authoritative collections of these “decretals” were published, and the ecclesiastical lawyer (the “canonist” or “decretist”) soon had at his command a large mass of written law comparable to that which the Roman lawyer (the “civilian” or “legist”) was studying. A Corpus Juris Canonici begins to take its place beside the Corpus Juris Civilis. Edition: current; Page: [441]Very often the same man had studied both; he was a “doctor of both laws”; and, indeed, the newer system had borrowed largely from the older; it had borrowed its form, its spirit, and a good deal of its matter also.

The canonical jurisprudence of the Italian doctors became the ecclesiastical law of the western world. From all local courts, wherever they might be, there was an appeal to the ultimate tribunal at Rome. But the temporal law of every country felt the influence of the new learning. Apparently we might lay down some such rule as this—that where the attack is longest postponed, it is most severe. In the thirteenth century the Parliament of Paris began the work of harmonising and rationalising the provincial customs of Northern France, and this it did by Romanising them. In the sixteenth century, after “the revival of letters,” the Italian jurisprudence took hold of Germany, and swept large portions of the old national law before it. Wherever it finds a weak, because an uncentralised, system of justice, it wins an easy triumph. To Scotland it came late; but it came to stay.

To England it came early. Very few are the universities which can boast of a school of Roman law so old as that of Oxford. In the troubled days of our King Stephen, when the Church was urging new claims against the feeble State, Archbishop Theobald imported from Italy one Vacarius, a Lombard lawyer, who lectured here on Roman law, and wrote a big book that may still be read. Very soon after this Oxford had a flourishing school of civil and canon law. Ever since William the Conqueror had solemnly Edition: current; Page: [442]sanctioned the institution of special ecclesiastical courts, it had been plain that in those courts the law of a Catholic Church, not of a merely English Church, must prevail; also that this law would be in the main Italian law. In the next century, as all know, Henry and Becket fell out as to the definition of the province that was to be left to the ecclesiastical courts. The battle was drawn; neither combatant had gained all that he wanted. Thenceforward until the Protestant Reformation, and indeed until later than that, a border warfare between the two sets of courts was always simmering. Victory naturally inclined to those tribunals which had an immediate control of physical force, but still the sphere that was left to the canonists will seem to our eyes very ample. It comprehended not only the enforcement of ecclesiastical discipline, and the punishment—by spiritual censure, and, in the last resort, by excommunication—of sins left unpunished by temporal law, but also the whole topic of marriage and divorce, those last dying wills and testaments which were closely connected with dying confessions, and the administration of the goods of intestates. Why to this day do we couple “Probate” with “Divorce”? Because in the Middle Ages both of these matters belonged to “the courts Christian.” Why to “Probate” and “Divorce” do we add “Admiralty”? Because the civilians—and in England the same man was usually both canonist and civilian—succeeded, though at a comparatively late time, in taking to themselves the litigation that concerned things done on the high seas, those high seas whence no jury could be summoned. So for the canonist Edition: current; Page: [443]there was plenty of room in England; and there was some room for the civilian: he was very useful as a diplomatist.

But we were speaking of our English common law, the law of our ordinary temporal courts, and of the influence upon it of the new Italian but cosmopolitan jurisprudence; and we must confess that for a short while, from the middle of the twelfth to the middle of the thirteenth century, this influence was powerful. The amount of foreign law that was actually borrowed has been underrated and overrated: we could not estimate it without descending to details. Some great maxims and a few more concrete rules were appropriated, but on the whole what was taken was logic, method, spirit rather than matter. We may see the effect of this influence very plainly in a treatise on the Laws of England which comes to us from the last years of Henry II. It has been ascribed to Henry's Chief Justiciar — Viceroy, we may say — Ranulf Glanvill; and whether or no it comes from his pen (he was a layman and a warrior), it describes the practice of the court over which he presided. There are very few sentences in it which we can trace to any Roman book, and yet in a sense the whole book is Roman. We look back from it to a law-book written in Henry I's time, and we can hardly believe that only some seventy years divide the two. The one can at this moment be read and understood by anyone who knows a little of mediaeval Latin and a little of English law; the other will always be dark to the most learned scholars. The gulf between them looks like that between logic and caprice, between reason Edition: current; Page: [444]and unreason. And then from the middle of the thirteenth century we have a much greater and better book than Glanvill's. Its author we know as Bracton, though his name really was Henry of Bratton. He was an ecclesiastic, an archdeacon, but for many years he was one of the king's justices. He had read a great deal of the king's justices. He had read a great deal of the Italian jurisprudence, chiefly in the works of that famous doctor, Azo of Bologna. Thence he had obtained his idea of what a law-book should be, of how law should be arranged and stated; thence also he borrowed maxims and some concrete rules; with these he can fill up the gaps in our English system. But he lets us see that not much more can now be done in the way of Romanisation. Ever since Henry II's time the king's court has been hard at work amassing precedents, devising writs, and commenting upon them. Bracton himself has laboriously collected five hundred decisions from the mile-long Rolls of the Court and uses them as his authorities. For him English law is already “case law”; a judgment is a precedent. While as yet the science of the civilians was a somewhat unpractical science, while as yet they had not succeeded in bringing the old classical texts into close contact with the facts of mediaeval life, the king's court of professional justices—the like of which was hardly to be found in any foreign land, in any unconquered land—had been rapidly evolving a common law for England, establishing a strict and formal routine of procedure, and tying the hands of all subsequent judges. From Bracton's day onwards Roman law exercises but the slightest influence on the English common law, and such influence as it exercises Edition: current; Page: [445]is rather by way of repulsion than by way of attraction. English law at this early period had absorbed so much Romanism that it could withstand all future attacks, and pass scathless even through the critical sixteenth century.

It may be convenient, however, to pause at this point in the development of our judicial institutions, in order to trace the history of our legal procedure.

For a long time past Englishmen have been proud of their trial by jury, and proud to see the nations of Europe imitating as best they might this “palladium of English liberties,” this “bulwark of the British Constitution.” Their pride, if in other respects it be reasonable, need not be diminished by any modern discoveries of ancient facts, even though they may have to learn that in its origin trial by jury was rather French than English, rather royal than popular, rather the livery of conquest than a badge of freedom. They have made it what it is; and what it is is very different from what it was. The story is a long and a curious one.

Let us try to put before our eyes a court of the twelfth century; it may be a county court or a hundred-court, or a court held by some great baron for his tenants. It is held in the open air—perhaps upon some ancient moot-hill, which ever since the times of heathenry has been the scene of justice. An officer presides over it—the sheriff, the sheriff's bailiff, the lord's steward. But all or many of the free landowners of the district are bound to attend it; they owe “suit” to it, they are its suitors, they are its doomsmen; it is for them, and not for the president, “to find the Edition: current; Page: [446]dooms.” He controls the procedure, he issues the mandates, he pronounces the sentence; but when the question is what the judgment shall be, he bids the suitors find the doom. All this is very ancient, and look where we will in Western Europe we may find it. But as yet we have not found the germ of trial by jury. These doomsmen are not “judges of fact.” There is no room for any judges of fact. If of two litigants the one contradicts the other flatly, if the plain “You did” of the one is met by the straight-forward “You lie” of the other, here is a problem that man cannot solve. He is unable as yet to weigh testimony against testimony, to cross-examine witnesses, to piece together the truth out of little bits of evidence. He has recourse to the supernatural. He adjudges that one or other of the two parties is to prove his case by an appeal to God.

The judgment precedes the proof. The proof consists, not in a successful attempt to convince your judges of the truth of your assertion, but in the performance of a task that they have imposed upon you: if you perform it, God is on your side. The modes of proof are two, oaths and ordeals. In some cases we may see a defendant allowed to swear away a charge by his own oath. More frequently he will have to bring with him oath-helpers—in later days they are called “compurgators”—and when he has sworn successfully, each of these oath-helpers in turn will swear “By God that oath is clean and true.” The doomsmen have decreed how many oath-helpers, and of what quality, he must bring. A great deal of their traditional legal lore consists in rules about this matter; Edition: current; Page: [447]queer arithmetical rules will teach how the oath of one thegn is as weighty as the oath of six ceorls, and the like. Sometimes they require that the oath-helpers shall be kinsmen of the chief swearer, and so warn us against any rationalism which would turn these oath-helpers into “witnesses to character,” and probably tell us of the time when the bond of blood was so strong that a man's kinsfolk were answerable for his misdeeds. A very easy task this oath with oath-helpers may seem in our eyes. It is not so easy as it looks. Ceremonial rules must be strictly observed; a set form of words must be pronounced; a slip, a stammer, will spoil all, and the adversary will win his cause. Besides, it is common knowledge that those who perjure themselves are often struck dead, or reduced to the stature of dwarfs, or find that they cannot remove their hands from the relics they have profaned.

But when crime is laid to a man's charge he will not always be allowed to escape with oaths. Very likely he will be sent to the ordeal. The ordeal is conceived as “the judgment of God.” Of heathen origin it well may be, but long ago the Christian Church has made it her own, has prescribed a solemn ritual for the consecration of those instruments—the fire, the water—which will reveal the truth. The water in the pit is adjured to receive the innocent and to reject the guilty. He who sinks is safe, he who floats is lost. The red-hot iron one pound in weight must be lifted and carried three paces. The hand that held it is then sealed up in a cloth. Three days afterwards the seal is broken. Is the hand clean or is Edition: current; Page: [448]it foul? that is the dread question. A blister “as large as half a walnut” is fatal. How these tests worked in practice we do not know. We seldom get stories about them save when, as now and again will happen, the local saint interferes and performs a miracle. We cannot but guess that it was well to be good friends with the priest when one went to the ordeal.

Then the Norman conquerors brought with them another ordeal—the judicial combat. An ordeal it is, for though the Church has looked askance at it, it is no appeal to mere brute force; it is an appeal to the God of Battles. Very solemnly does each combatant swear to the truth of his cause; very solemnly does he swear that he has eaten nothing, drunk nothing “whereby the law of God may be debased or the devil's law exalted.” When a criminal charge is made—“an appeal of felony”—the accuser and the accused, if they be not maimed, nor too young, nor too old, will have to fight in person. When a claim for land is made, the plaintiff has to offer battle, not in his own person, but in the person of one of his men. This man is in theory a witness who will swear to the justice of his lord's cause. In theory he ought not to be, but in practice he often is, a hired champion who makes a profession of fighting other people's battles. If the hireling be exposed, he may have his hand struck off; but as a matter of fact there were champions in a large way of business. At least in some cases the arms that are used are very curious; they are made of wood and horn, and look (for we have pictures of them) like short pickaxes. Possibly they have been Edition: current; Page: [449]in use for this sacral purpose—a sacral purpose it is—ever since an age which knew not iron. Also we know that the champion's head is shaved, but are left to guess why this is done. The battle may last the livelong day until the stars appear. The accuser has undertaken that in the course of a day he will “prove by his body” the truth of his charge; and if he cannot do this before the twilight falls, he has failed and is a perjurer. The object of each party in the fight is not so much to kill his adversary—this perhaps he is hardly likely to do with the archaic weapon that he wields—but to make him pronounce “the loathsome word,” to make him cry “craven.” In a criminal case the accused, if vanquished, was forthwith hanged or mutilated; but in any case the craven had to pay a fine of sixty shillings, the old “king's ban” of the Frankish laws, and, having in effect confessed himself a perjurer, he was thenceforth infamous.

But long ago the Frankish kings had placed themselves outside the sphere of this ancient formal and sacral procedure. They were standing in the shoes of Roman governors, even of Roman emperors. For themselves and their own affairs they had a prerOgatival procedure. If their rights were in question, they would direct their officers to call together the best and oldest men of the neighbourhood to swear about the relevant facts. The royal officers would make an inquisition, hold an inquest, force men to swear that they would return true answers to whatever questions might be addressed to them in the king's name. They may be asked whether or no this piece of land belongs to the king; they may be asked in a general way what Edition: current; Page: [450]lands the king has in their district; they may be asked (for the king is beginning to see that he has a great interest in the suppression of violent crime) to tell tales of their neighbours, to report the names of all who are suspected of murder or robbery, and then these men can be sent to the ordeal. This privilege that the king has he can concede to others; he can grant to his favourite churches that their lands shall stand outside the scope of the clumsy and hazardous procedure of the common courts; if their title to those lands be challenged, a royal officer will call upon the neighbours to declare the truth—in other words, to give a verdict. It is here that we see the germ of the jury.

The Norman duke in his conquered kingdom was able to use the inquest with a free hand and on a grand scale. Domesday Book was compiled out of the verdicts returned by the men of the various hundreds and townships of England in answer to a string of questions put to them by royal commissioners. We have read how the stern king thought it no shame to do what the English monk thought it shame to write, how he numbered every ox, every cow, every pig in England. Thenceforward the inquest was part of the machinery of government; it could be employed for many different purposes whenever the king desired information. He could use it in his own litigation, he could place it at the service of other litigants who were fortunate enough or rich enough to obtain this favour from him. But throughout the reigns of our Norman kings it keeps its prerogatival character.

Then Henry II, bent upon making his justice Edition: current; Page: [451]supreme throughout his realm, put this royal remedy at the disposal of all his subjects. This he did not by one general law, but piecemeal, by a series of ordinances known as “assizes,” some of which we may yet read, while others have perished. For example, when there was litigation about the ownership of land, the defendant, instead of accepting the plaintiff's challenge to fight, was allowed to “put himself upon the king's grand assize.” Thereupon the action, which had been begun in some feudal court, was removed into the king's court; and twelve knights, chosen from the district in which the land lay, gave a verdict as to whether the plaintiff or the defendant had the better right. In other cases—for example, when the dispute was about the possession, not the ownership, of land—less solemn forms of the inquest were employed; twelve free and lawful men, not necessarily knights, were charged to say whether the defendant had ejected the plaintiff. Before the twelfth century was at an end, the inquest in one form or another—sometimes it was called an assize, sometimes a jury—had become part of the normal procedure in almost every kind of civil action. Still there long remained many cases in which a defendant could, if he chose, reject the new-fangled mode of trial, and claim the ancient right of purging himself with oath-helpers, or of picking up the glove that the plaintiff had thrown down as a gage of battle. Even a prelate of the Church would sometimes rely rather upon the strong arm of a professional pugilist than upon the testimony of his neighbours. Within the walls of the chartered boroughs men were conservative of all that Edition: current; Page: [452]would favour the free burgher at the cost of the despised outsider. The Londoners thought that trial by jury was good enough for those who were not citizens, but the citizen must be allowed to swear away charges of debt or trespass by the oaths of his friends. In the old communal courts, too, the county and hundred courts, where the landowners of the district sat as doomsmen, trial by jury never struck root, for only by virtue of a royal writ could a jury be summoned: this is one of the reasons why those old courts languished, decayed, and became useless. However, before the Middle Ages were over, trial by jury had become the only form of trial for civil actions that had any vitality. So late as 1824 a lucky litigant, taking advantage of his adversary's slip, presented himself at the bar of the King's Bench, prepared to swear away a debt—“to make his law” was the technical phrase—with the aid of eleven oath-helpers, and not until 1833 was this world-old procedure abolished by statute; but long before this, if the plaintiff was well advised, he could always prevent his opponent from escaping in this easy fashion.

We have spoken of “trial by jury.” That term naturally calls up before our minds a set of twelve men called into court in order that they may listen to the testimony of witnesses, give a true verdict “according to the evidence,” and, in short, act as judges of those questions of fact that are in dispute. But it is very long after Henry II's day before trial by jury takes this form. Originally the jurors are called in, not in order that they may hear, but in order that they may give, evidence. They are witnesses. They are Edition: current; Page: [453]neighbours of the parties; they are presumed to know before they come into court the facts about which they are to testify. They are chosen by the sheriff to represent the neighbourhood—indeed, they are spoken of as being “the neighbourhood,” “the country”—and the neighbourhood, the country, will know the facts. In the twelfth century population was sparse, and men really knew far more of the doings of their neighbours than we know nowadays. It was expected that all legal transactions would take place in public; the conveyance of land was made in open court, the wife was endowed at the church-door, the man who bought cattle in secret ran a great but just risk of being treated as a thief; every three weeks a court was held in the village, and all the affairs of every villager were discussed. The verdict, then, was the sworn testimony of the countryside; and if the twelve jurors perjured themselves, the verdict of another jury of twenty-four might send them to prison and render them infamous for ever. In course of time, and by slow degrees—degrees so slow that we can hardly detect them—the jury put off its old and acquired a new character. Sometimes, when the jurors knew nothing of the facts, witnesses who did know the facts would be called in to supply the requisite information. As human affairs grew more complex, the neighbours whom the sheriff summoned became less and less able to perform their original duty, more and more dependent upon the evidence given in their presence by those witnesses who were summoned by the parties. In the fifteenth century the change had taken place, though in yet later days a man who had been summoned as a juror, Edition: current; Page: [454]and who sought to escape on the ground that he already knew something of the facts in question, would be told that he had given a very good reason for his being placed in the jury-box. We may well say, therefore, that trial by jury, though it has its roots in the Frankish inquest, grew up on English soil; and until recent times it was distinctive of England and Scotland, for on the continent of Europe all other forms of legal procedure had been gradually supplanted by that which canonists and civilians had constructed out of ancient Roman elements.

We have yet to speak of the employment of the inquest in criminal cases. The Frankish kings had employed it for the purpose of detecting crime. Do you suspect any of murder, robbery, larceny, or the like? This question was addressed by royal officers to selected representatives of every neighbourhood, and answered upon oath, and the suspected persons were sent to “the judgment of God.” The Church borrowed this procedure; the bishop could detect ecclesiastical offences as the king detected crimes. It is not impossible that this particular form of the inquest had made its way into England some halfcentury before the Norman Conquest; but we hear very little about it until the days of Henry II. He ordained that it should be used upon a very large scale and as a matter of ordinary practice, both by the justices whom he sent to visit the counties and by the sheriffs. From his time onward a statement made upon oath by a set of jurors representing a hundred, to the effect that such an one is suspected of such a crime, is sufficient to put a man upon his trial. It is Edition: current; Page: [455]known as an indictment. It takes its place beside the old accusation, or “appeal,” urged by the person who has been wronged, by the man whose goods have been stolen or the nearest kinsman of the murdered man. It is but an accusation, however, and in Henry's days the indicted person takes his chance at the hot iron or the cold water; God may be for him, though man be against him. But already some suspicion is shown of the so-called judgment of God; for though he comes clean from the ordeal, he has to leave the country, swearing never to return. At last, in 1215, the Fourth Lateran Council forbade the clergy to take part in this superstitious rite. After this we hear no more in England of the ordeal as a legal process, though in much later days the popular belief that witches will swim died hard, and many an old woman was put in the pond. The judges of the thirteenth century had no substitute ready to take the place of that supernatural test of which an enlightened Pope had deprived them. Of course, if the indicted person will agree to accept the verdict of his neighbours, will “put himself upon his country”—that is, upon the neighbourhood—for good and ill, all is easy. Those who have indicted him as a suspicious character can now be asked whether he is guilty or no; and if they say that he is guilty, there will be no harm in hanging him, for he consented to the trial, and he must abide the consequences. To make the trial yet fairer, one may call in a second jury different from that which indicted him. Here is the origin of those two juries which we see employed in our own days—the grand jury that indicts, and the petty jury that tries. But suppose Edition: current; Page: [456]that he will not give his consent; it is by no means obvious that the testimony of his neighbours ought to be treated as conclusive. Hitherto he has been able to invoke the judgment of God, and can we now deprive him of this ancient, this natural right? No, no one can be tried by jury who does not consent to be so tried. But what we can do is this—we can compel him to give his consent, we can starve him into giving his consent, and, again, we can quicken the slow action of starvation by laying him out naked on the floor of the dungeon and heaping weights upon his chest until he says that he will abide by the verdict of his fellows. And so we are brought to the pedantic cruelty of the “peine forte et dure.” Even in the seventeenth century there were men who would endure the agony of being pressed to death rather than utter the few words which would have subjected them to a trial by jury. They had a reason for their fortitude. Had they been hanged as felons their property would have been confiscated, their children would have been penniless; while, as it was, they left the world obstinate, indeed, but unconvicted. All this—and until 1772 men might still be pressed to death—takes us back to a time when the ordeal seems the fair and natural mode of ascertaining guilt and innocence, when the jury is still a new-fangled institution.

The indictment, we have said, took its place beside the “appeal”—the old private accusation. The owner of the stolen goods, the kinsman of the murdered man, might still prosecute his suit in the old manner, and offer to prove his assertion by his body. The Church had not abolished, and could not abolish, the judicial Edition: current; Page: [457]combat, for though in truth it was an ordeal, no priestly benediction of the instruments that were to be used was necessary. By slow degrees in the thirteenth century the accused acquired the right of refusing his accuser's challenge and of putting himself upon a jury. What is more, the judges began to favour the “indictment” and to discourage the “appeal” by all possible means. They required of the accuser a punctilious observance of ancient formalities, and would quash his accusation if he were guilty of the smallest blunder. Still, throughout the Middle Ages we occasionally hear of battles being fought over criminal cases. In particular a convicted felon would sometimes turn “approver”—that is to say, he would obtain a pardon conditional on his ridding the world, by means of his appeals, of some three or four other felons. If he failed in his endeavour, he was forthwith hanged. But those who were not antiquarians must have long ago ceased to believe that such a barbarism as trial by battle was possible, when in 1818 a case arose which showed them that they had inadequately gauged the dense conservatism of the laws of their country. One Mary Ashford was found drowned; one Abraham Thornton was indicted for murdering her; a jury acquitted him. But the verdict did not satisfy the public mind, and the brother of the dead girl had recourse to an “appeal”: to this accusation the previous acquittal was no answer. Thornton declared himself ready to defend his innocence by his body, and threw down, in Westminster Hall, as his gage of battle, an antique gauntlet, “without either fingers or thumb, made of white tanned skin, ornamented Edition: current; Page: [458]with sewn tracery and silk fringes, crossed by a narrow band of red leather, with leathern tags and thongs for fastening.” The judges did their best to discover some slip in his procedure; but he had been careful and well advised; even his glove was of the true mediaeval pattern. So there was nothing for it but to declare that he was within his rights, and could not be compelled to submit to a jury if he preferred to fight. His adversary had no mind to fight, and so let the glove alone. After this crowning scandal Parliament at last bestirred itself, and in the year of grace 1819 completed the work of Pope Innocent III by abolishing the last of the ordeals.

If we regard it as an engine for the discovery of truth and for the punishment of malefactors, the mediaeval jury was a clumsy thing. Too often its verdicts must have represented guess-work and the tittle-tattle of the countryside. Sometimes a man must have gone to the gallows, not because anyone had seen him commit a crime, not because guilt had been brought home to him by a carefully tested chain of proved facts, but because it was notorious that he was just the man from whom a murder or a robbery might be expected. Only by slow degrees did the judges insist that the jurors ought to listen to evidence given by witnesses in open court, and rely only upon the evidence that was there given. Even when this step had been taken, it was long before our modern law of evidence took shape, long before the judges laid down such rules as that “hearsay is not evidence,” and that testimony which might show that the prisoner had committed other crimes was not relevant to the Edition: current; Page: [459]question whether he had perpetrated the particular offence of which he stood indicted.

But whatever may have been the case in the days of the ordeal—and about this we know very little—we may be fairly certain that in the later Middle Ages the escape of the guilty was far commoner than the punishment of the guiltless. After some hesitation our law had adopted its well-known rule that a jury can give no verdict unless the twelve men are all of one mind. To obtain a condemnatory unanimity was not easy if the accused was a man of good family; one out of every twelve of his neighbours that might be taken at random would stand out loyally for his innocence. Bribery could do much; seignorial influence could do more; the sheriff, who was not incorruptible, and had his own likes and dislikes, could do all, since it was for him to find the jury. It is easy for us to denounce as unconstitutional the practice which prevailed under Tudors and Stuarts of making jurors answer for their verdicts before the King's Council; it is not so easy for us to make certain that the jury system would have lived through the sixteenth century had it not been for the action of this somewhat irregular check. For the rest, we may notice that the jury of the Middle Ages, if it is to be called a democratic institution, can be called so only in a mediaeval sense. The jurors were freeholders. The great mass of Englishmen were not freeholders. The peasant who was charged with a crime was acquitted or convicted by the word of his neighbours, but by the word of neighbours who considered themselves very much his superiors.

If, however, we look back to those old days, we shall find ourselves deploring not so much that some men of whose guilt we are by no means satisfied are sent to the gallows, as that many men whose guilt is but too obvious escape scot-free. We take up a roll upon which the presentments of the jurors are recorded. Everywhere the same tale meets our eye. “Malefactors came by night to the house of such an one at such a place; they slew him and his wife and his sons and his daughters, and robbed his house; we do not know who they were; we suspect no one.” Such organisation as there was for the pursuit of these marauders was utterly inefficient. Every good and lawful man is bound to follow the hue and cry when it is raised, and the village reeve, or in later days the village constable, ought to put himself at the head of this improvised and unprofessional police force. But it was improvised and unprofessional. Outside the walls of the boroughs there was no regular plan of watch and ward, no one whose business it was to keep an eye on men of suspicious habits, or to weave the stray threads of evidence into a halter. The neighbours who had followed the trail of the stolen cattle to the county boundary were apt to turn back, every man to his plough. “Let Gloucestershire folk mind Gloucestershire rogues.” They would be fined, when the justices came round, for neglect of their duties—for the sheriff, or the coroner, or someone else, would tell tales of them—but meanwhile their hay was about, and the weather was rainy. Even when the jurors know the criminal's name, the chances seem to be quite ten to one that he has not been captured. Edition: current; Page: [461]Nothing could then be done but outlaw him. At four successive county courts—the county court was held month by month—a proclamation calling upon him to present himself, “to come in to the king's peace,” would be made, and at the fifth court he would be declared an outlaw. If after this he were caught, then, unless he could obtain some favour from the king, he would be condemned to death without any investigation being made of his guilt or innocence; the mere fact of his outlawry being proved, sentence followed as a matter of course. But the old law had been severer than this: to slay the outlaw wherever he may be found was not only the right but the duty of every true man, and even in the middle of the thirteenth century this was still the customary law of the Welsh marches. The outlaw of real life was not the picturesque figure that we have seen upon the stage; if he and his men were really “merry” in the greenwood, they were merry in creditable circumstances. Still, it is not to be denied that he attracted at times a good deal of romantic sympathy, even in the ages which really knew him. This probably had its origin in the brutal stringency of the forest laws, which must be charged with the stupid blunder of punishing small offences with a rigour which should have been reserved for the worst crimes.

The worst crimes were common enough. Every now and then the king and the nation would be alarmed, nor needlessly alarmed, by the prevalence of murder and highway robbery. A new ordinance would be issued, new instructions would be given to the judges, sheriffs would be active, and jurors would Edition: current; Page: [462]be eager to convict; a good deal of hanging would be done, perhaps too indiscriminately. But so soon as the panic was over, Justice would settle down into her old sluggish habits. Throughout the Middle Ages life was very insecure; there was a great deal of nocturnal marauding, and the knife that every Englishman wore was apt to stab upon slight provocation.

The Church had not mended matters by sanctifying places and persons. In very old days when the blood-feud raged, when punishment and vengeance were very much one, it was a good thing that there should be holy places to which a man might flee when the avenger of blood was behind—places where no drop of blood might be spilt without sacrilege. They afforded an opportunity for the peacemaker. The bishop or priest would not yield up the fugitive who lay panting at the foot of the altar until terms had been made between him and his pursuers. But at a later time when the State was endeavouring to punish criminals, and there would be no punishment until after trial, the sanctuary was a public nuisance. The law was this:—If a criminal entered a church he was safe from pursuit; the neighbours who were pursuing him were bound to beset the church, prevent his escape, and send for the coroner. Sometimes they would remain encamped round the church for many days. At last the coroner would come, and parley with the fugitive. If he confessed his crime, then he might “abjure the realm”—that is, swear to leave England within a certain number of days (he was allowed days enough to enable him to reach the nearest seaport), and never to return. If he strayed Edition: current; Page: [463]from the straight road which led to the haven, or if he came back to the realm, then he could at once be sentenced to death. For a man to take sanctuary, confess his crime and abjure the realm, was an everyday event, and we must have thus shipped off many a malefactor to plunder our neighbours in France and Flanders. If the man who had taken sanctuary would neither confess to a crime, not submit to a trial, the State could do no more against him. It tried to teach the clergy that their duty was to starve him into submission; but the clergy resented this interference with holy things. A bad element of caprice was introduced into the administration of justice. The strong, the swift, the premeditating murderer cheated the gallows. Especially in the towns he might fairly complain of bad luck if he could not slip into one of the numerous churches before he was caught. On the other hand, the man who had not plotted his crime would get hanged.

And then the clergy stood outside the criminal law. If a clerk in holy orders committed a crime—this was the law of the thirteenth century—he could not be tried for it in a lay court. He could be accused there, and the judges might ask a jury whether he was guilty or no; but even though they found him guilty, this was no trial. At the request of his bishop—and the bishops made such requests as a matter of course—he was handed over for trial in an ecclesiastical court. Such a court had power to inflict very heavy punishments. It might draw no drop of blood, but it could imprison for life, besides being able to degrade the clerk from his orders. As a matter of fact, however, we hear Edition: current; Page: [464]very little of any punishment save that of degradation. What is more, the criminal procedure of the ecclesiastical courts in England was of an absurdly old-fashioned and clumsy kind. They held by compurgation. If the accused clerk could but get some eleven or twelve friends of his own profession to swear that they believed him innocent, he was acquitted; he might resume his criminal career. Church and State are both to blame for this sad story. The Church would yield no jot of the claims that were sanctified by the blood of St Thomas; the lay courts would not suffer the bishops to do criminal justice in a really serious fashion. There can be no doubt that many of the worst criminals—men who had been found guilty by a jury of brutal murders and rapes—escaped scot-free, because they had about them some slight savour of professional holiness. It should be understood that this immunity was shared with the bishops, priests, and deacons by a vast multitude of men who were in “minor orders.” They might have no ecclesiastical duties to perform; they might be married; they might be living the same life which laymen lived; but they stood outside the ordinary criminal law. One of the worst evils of the later Middle Ages was this “benefit of clergy.” The king's justices, who never loved it, at length reduced it to an illogical absurdity. They would not be at pains to require any real proof of a prisoner's sacred character. If he could read a line in a book, this would do; indeed, it is even said that the same verse of the Psalms was set before the eyes of every prisoner, so that even the illiterate might escape if he could repeat by heart those saving words. Edition: current; Page: [465]Criminal law had been rough and rude, and sometimes cruel; it had used the gallows too readily; it had punished with death thefts which, owing to a great fall in the value of money, were becoming petty thefts. Still, cruelty in such matters is better than caprice, and the “benefit of clergy” had made the law capricious without making it less cruel.

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 Edition: current; Page: [466]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. Edition: current; Page: [467]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 Edition: current; Page: [468]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.

Legal Reform under Edward I.

On the death of Henry III there followed some eighteen years which even at this day may seem to us the most brilliant eighteen years in the whole history of English legislation. At all events, if we are to find a comparable period we must look forward, for five hundred years and more, to the age of the first Reform Bill. Year by year King Edward I in his Parliaments made laws on a grand scale. His statutes will not be in our eyes very lengthy documents; but they are drastic, and they are permanent. They deal with all sorts of matters, public and private, but in particular with those elementary parts of the law of property and the law of civil procedure which English legislators Edition: current; Page: [469]have, as a general rule, been well content to leave alone. Just for this reason they are exceedingly permanent; they become fundamental; elaborate edifices of gloss and comment are reared upon them. To this day, despite all the reforms of the present century, we have to look to them, and the interpretation which has been set upon them, for some of the most elementary principles of our land law. When all has been said that can be said for the explanation of this unique outburst of legislation, it still remains a marvellous thing.

A professional class of English temporal lawyers was just beginning to form itself. We say “of English temporal lawyers,” because for more than a century past there had been “legists” and “decretists” in the land. These legists and decretists constituted a professional class; they held themselves out as willing to plead the causes of those who would pay their fees. They did a large business, for the clergy of the time were extremely litigious. The bishop who was not perennially engaged in interminable disputes with two or three wealthy religious houses was either a very fortunate or a very careless guardian of the rights of his see. And all the roads of ecclesiastical litigation led to Rome. Appeals to the Pope were made at every stage of every cause, and the most famous Italian lawyers were retained as advocates. The King of England, who was often involved in contests about the election of bishops—contests which would sooner or later come before the Roman Curia—kept Italian canonists in his pay. Young Englishmen were sent to Bologna in order that they might learn the law of Edition: current; Page: [470]the Church. The University of Oxford was granting degrees in civil and canon law, the University of Cambridge followed her example. There was no lack of ecclesiastical lawyers; indeed, the wisest and most spiritual of the clergy thought that there were but too many of them, and deplored that theology was neglected in favour of a more lucrative science. And what we might call an ecclesiastical “Bar” had been formed. The canonist who wished to practice in a bishop's court had to satisfy the bishop of his competence, and to take an oath obliging him to practise honestly. The tribunals of the Church knew both the “advocate” (who pleads on behalf of a client), and the “procurator” or “proctor” (who represents his client's person and attends to his cause).

In course of time two groups similar to these grew up round the king's court. We see the “attorney” (who answers to the ecclesiastical proctor) and the “pleader,” “narrator,” or “countor” (who answers to the ecclesiastical advocate). But the formation of these classes of professional lawyers has not been easy. Ancient law does not readily admit that one man can represent another; in particular, it does not readily admit that one man can represent another in litigation. So long as procedure is extremely formal, so long as all depends on the due utterance of sacramental words, it does not seem fair that you should put an expert in your place to say those words for you. My adversary has, as it were, a legal interest in my ignorance or stupidity. If I cannot bring my charge against him in due form, that charge ought to fail; at all events, he cannot justly be called upon to answer another person, Edition: current; Page: [471]some subtle and circumspect pleader, whom I have hired. Thus the right to appoint an attorney who will represent my person in court, and win or lose my cause for me, appears late in the day. It spreads outwards from the king. From of old the king must be represented by others in his numerous suits. This right of his he can confer upon his subjects—at first as an exceptional favour, and afterwards by a general rule. In Henry III's reign this process has gone thus far:—A litigant in the king's court may appoint an attorney to represent him in the particular action in which he is for the time being engaged: he requires no special licence for this; but if a man wishes to appoint prospectively a general attorney, who will represent him in all actions, the right to do this he must buy from the king, and he will not get it except for some good cause. The attorneys of this age are by no means always professional men of business. Probably every free and lawful man may act as the attorney of another; indeed, shocking as this may seem to us, we may, not very unfrequently, find a wife appearing in court as her husband's attorney.

The other “branch of the profession” grows from a different stock. In very old days a litigant is allowed to bring his friends into court, and to take “counsel” with them before he speaks. Early in the twelfth century it is already the peculiar mark of a capital accusation that the accused must answer without “counsel.” Then sometimes one of my friends will be allowed, not merely to prompt me, but even to speak for me. It is already seen that the old requirement of extreme verbal accuracy is working injustice. Edition: current; Page: [472]A man ought to have some opportunity of amending a mere slip of the tongue; and yet old legal principles will not suffer that he should amend the slips of his own tongue. Let another tongue slip for him. Such is the odd compromise between ancient law and modern equity. One great advantage that I gain by putting forward “one of my counsel” to speak for me is that if he blunders—if, for example, he speaks of Roger when he should have spoken of Richard—I shall be able to correct the mistake, for his words will not bind me until I have adopted them. Naturally, however, I choose for this purpose my acutest and most experienced friends. Naturally, also, acute and experienced men are to be found who will gladly be for this purpose my friends or anybody else's friends, if they be paid for their friendliness. As a class of expert pleaders forms itself, the relation between the litigant and those who are “of counsel for him” will be very much changed, but it will not lose all traces of its friendly character. Theoretically one cannot hire another person to plead for one; in other words, counsel cannot sue for his fees.

Seemingly it was in the reign of Henry III that pleaders seeking for employment began to cluster round the king's court. Some of them the king, the busiest of all litigants, kept in his pay; they were his “serjeants”—that is, servants—at law. Under Edward I a process, the details of which are still very obscure, was initiated by the king, which brought these professional pleaders and the professional attorneys under the control of the judges, and began to secure a monopoly of practice to those who had been formally Edition: current; Page: [473]ordained to the ministry of the law. About the same time it is that we begin to read of men climbing from the Bar to the Bench, and about the same time it is that the judges are ceasing to be ecclesiastics. If we look back to Richard I's reign we may see, as the highest temporal court of the realm, a court chiefly composed of ecclesiastics, presided over by an archbishop, who is also Chief Justiciar; he will have at his side two or three bishops, two or three archdeacons, and but two or three laymen. The greatest judges even of Henry III's reign are ecclesiastics, though by this time it has become scandalous for a bishop to do much secular justice. These judges have deserved their appointments, not by pleading for litigants, but by serving as clerks in the Court, the Exchequer, the Chancery. They are professionally learned in the law of the land, but they have acquired their skill rather as the civil servants of the Crown than as the advocates or advisers of private persons; and if they serve the king well on the Bench, they may hope to retire upon bishoprics, or at all events deaneries. But the Church has been trying to withdraw the clergy from this work in the civil courts. Very curious had been the shifts to which ecclesiastics had been put in order to keep themselves technically free of blood-guiltiness. The accused criminal knew what was going to happen when the ecclesiastical president of the court rose but left his lay associates behind him. Hands that dared not write “and the jurors say that he is guilty, and therefore let him be hanged,” would go so far as “and therefore, etc.” Lips that dared not say any worse would venture a sufficiently intelligible “Take him away, and let him Edition: current; Page: [474]have a priest.” However, the Church has her way. The clerks of the court, the Exchequer, the Chancery, will for a very long time be clerks in holy orders; but before the end of Edward I's reign the appointment of an ecclesiastic to be one of the king's justices will be becoming rare. On the whole, we may say that from that time to the present, one remarkable characteristic of our legal system is fixed—all the most important work of the law is done by a very small number of royal justices who have been selected from the body of pleaders practising in the king's courts.

Slowly the “curia” of the Norman reigns had been giving birth to various distinct offices and tribunals. In Edward's day there was a “King's Bench” (a court for criminal causes and other “pleas of the Crown”); a “Common Bench” (a court for actions brought by one subject against another); an Exchequer, which both in a judicial and an administrative way collected the king's revenue and enforced his fiscal rights; a Chancery, which was a universal secretarial bureau, doing all the writing that was done in the king's name. These various departments had many adventures to live through before the day would come when they would once more be absorbed into a High Court of Justice. Of some few of those adventures we shall speak in another place, but must here say two or three words about a matter which gave a distinctive shape to the whole body of our law—a shape that it is even now but slowly losing. Our common law during the later Middle Ages and far on into modern times is in the main a commentary on writs issued out of the king's Chancery. To understand this, we must go Edition: current; Page: [475]back to the twelfth century, to a time when it would have seemed by no means natural that ordinary litigation between ordinary men should come into the king's court. It does not come there without an order from the king. Your adversary could not summon you to meet him in that court; the summons must come from the king. Thus much of the old procedure we still retain in our own time; it will be the king, not your creditor, who will bid you appear in his High Court. But whereas at the present day the formal part of the writ will merely bid you appear in court, and all the information that you will get about the nature of the claim against you will be conveyed to you in the plaintiffs own words or those of his legal advisers, this was not so until very lately. In old times the writ that was drawn up in the king's Chancery and sealed with his great seal told the defendant a good many particulars about the plaintiff's demand. Gradually, as the king began to open the doors of his court to litigants of all kinds, blank forms of the various writs that could be issued were accumulated in the Chancery. We may think of the king as keeping a shop in which writs were sold. Some of them were to be had at fixed prices, or, as we should say nowadays, they could be had as matters of course on the payment of fixed court-fees; for others special bargains had to be made. Then, in course of time, as our Parliamentary constitution took shape, the invention of new writs became rarer and rarer. Men began to see that if the king in his Chancery could devise new remedies by granting new writs, he had in effect a power of creating new rights and making new laws without the concurrence Edition: current; Page: [476]of the estates of the realm. And so it came to be a settled doctrine that though the old formulas might be modified in immaterial particulars to suit new cases as they arose, no new formula could be introduced except by statute. This change had already taken place in Edward I's day. Thenceforward the cycle of writs must be regarded as a closed cycle; no one can bring his cause before the king's courts unless he can bring it within the scope of one of those formulas which the Chancery has in stock and ready for sale. We may argue that if there is no writ there is no remedy and if there is no remedy there is no wrong; and thus the register of writs in the Chancery becomes the test of rights and the measure of law. Then round each writ a great mass of learning collects itself. He who knows what cases can be brought within each formula knows the law of England. The body of law has a skeleton, and that skeleton is the system of writs. Thus our jurisprudence took an exceedingly rigid and permanent shape; it became a commentary on formulas. It could still grow and assimilate new matter, but it could only do this by a process of interpretation which gradually found new, and not very natural, meanings for old phrases. As we shall see hereafter, this process of interpretation was too slow to keep up with the course of social and economic change, and the Chancery had to come to the relief of the courts of law by making itself a court of equity.

English Law, 1307–1600.

The desire for continuous legislation is modern. We have come to think that, year by year, Parliament must meet and pour out statutes; that every statesman must have in his mind some programme of new laws; that if his programme once become exhausted he would cease to be a statesman. It was otherwise in the Middle Ages. As a matter of fact a Parliament might always find that some new statute was necessary. The need for legislation, however, was occasioned (so men thought) not by any fated progress of the human race, but by the perversity of mankind. Ideally there exists a perfect body of law, immutable, eternal, the work of God, not of man. Just a few more improvements in our legal procedure will have made it for ever harmonious with this ideal; and, indeed, if men would but obey the law of the land as it stands, there would be little for a legislator to do.

During the fourteenth century a good deal is written upon the statute roll, and a good deal can still be said in very few words. “Also it is agreed that a Parliament shall be holden once a year or more often if need be.” This is a characteristic specimen of the brief sentences in which great principles are formulated and which by their ambiguity will provide the lawyers and politicians of later ages with plenty of matter for debate. Many of these short clauses are directed against what are regarded as abuses, as evasions of the law, and the king's officers are looked upon as the Edition: current; Page: [478]principal offenders. They must be repeated with but little variation from time to time, for it is difficult to bind the king by law. Happily the kings were needy; in return for “supply” they sold the words on the statute roll, and those words, of some importance when first conceded, became of far greater importance in after times. When we read them nowadays they turn our thoughts to James and Charles, rather than to Edward and Richard. The New Monarchy was not new. This, from its own point of view, was its great misfortune. It had inherited ancient parchment rolls which had uncomfortable words upon them.

But Parliament by its statutes was beginning to interfere with many affairs, small as well as great. Indeed, what we may consider small affairs seem to have troubled and interested it more even than those large constitutional questions which it was always hoping to settle but never settling. If we see a long statute, one guarded with careful provisos, one that tells us of debate and compromise, this will probably be a statute which deals with one particular trade; for instance, a statute concerning the sale of herring at Yarmouth fair. The thorniest of themes for discussion is the treatment of foreign merchants. Naturally enough our lords, knights, and burgesses cannot easily agree about it. One opinion prevails in the seaports, another in the upland towns, and the tortuous course of legislation, swaying now towards Free Trade and now towards Protection, is the resultant of many forces. The “omnicompetence,” as Bentham called it, of statute law was recognised by all, the impotence of statute law was seen by none. It can determine the rate of wages, Edition: current; Page: [479]the price of goods, the value of money; it can decide that no man shall dress himself above his station.

On the other hand, the great outlines of criminal law and private law seem to have been regarded as fixed for all time. In the twentieth century students of law will still for practical purposes be compelled to know a good deal about some of the statutes of Edward I. They will seldom have occasion to know anything of any laws that were enacted during the fourteenth or the first three-quarters of the fifteenth century. Parliament seems to have abandoned the idea of controlling the development of the common law. Occasionally and spasmodically it would interfere, devise some new remedy, fill a gap in the register of writs, or circumvent the circumventors of a statute. But in general it left the ordinary law of the land to the judges and the lawyers. In its eyes the common law was complete, or very nearly complete.

And then as we read the statute-roll of the fifteenth century we seem for a while to be watching the decline and fall of a mighty institution. Parliament seems to have nothing better to do than to regulate the manufacture of cloth. Now and then it strives to cope with the growing evils of the time, the renascent feudalism, the private wars of great and small; but without looking outside our roll we can see that these efforts are half-hearted and ineffectual. We are expected to show a profound interest in “the making of worsteds,” while we gather from a few casual hints that the Wars of the Roses are flagrant. If for a moment the Parliament of Edward IV can raise its soul above defective barrels of fish and fraudulent gutter tiles, this will Edition: current; Page: [480]be in order to prohibit “cloish, kayles, half-bowl, hand-in-hand and hand-out, quekeboard,” and such other games as interfere with the practice of archery.

In the end it was better that Parliament should for a while register the acts of a despot than that it should sink into the contempt that seemed to be prepared for it. The part which the assembled Estates of the Realm have to play in the great acts of Henry VIII may in truth be a subservient and ignoble part; but the acts are great and they are all done “by the authority of Parliament.” By the authority of Parliament the Bishop of Rome could be deprived of all jurisdiction, the monasteries could be dissolved, the king could be made (so far as the law of God would permit) supreme head of the English Church, the succession to the Crown could be settled first in this way, then in that, the force of statute might be given to the king's proclamations. There was nothing that could not be done by the authority of Parliament. And apart from the constitutional and ecclesiastical changes which everyone has heard about, very many things of importance were done by statute. We owe to Henry VIII—much rather to him than to his Parliament—not a few innovations in the law of property and the law of crime, and the Parliaments of Elizabeth performed some considerable legal exploits. The statutes of the Tudor period are lengthy documents. In many a grandiose preamble we seem to hear the voice of Henry himself; but their length is not solely due to the pomp of imperial phrases. They condescend to details; they teem with exceptions and saving clauses. One cannot establish a new ecclesiastical Edition: current; Page: [481]polity by half-a-dozen lines. We see that the judges are by this time expected to attend very closely to the words that Parliament utters, to weigh and obey every letter of the written law.

Just now and then in the last of the Middle Ages and thence onwards into the eighteenth century, we hear the judges claiming some vague right of disregarding statutes which are directly at variance with the common law, or the law of God, or the royal prerogative. Had much come of this claim, our constitution must have taken a very different shape from that which we see at the present day. Little came of it. In the troublous days of Richard II a chief justice got himself hanged as a traitor for advising the king that a statute curtailing the royal power was void. For the rest, the theory is but a speculative dogma. We can (its upholders seem to say) conceive that a statute might be so irrational, so wicked, that we would not enforce it; but, as a matter of fact, we have never known such a statute made. From the Norman Conquest onwards, England seems marked out as the country in which men, so soon as they begin to philosophise, will endeavour to prove that all law is the command of a “sovereign one,” or a “sovereign many.” They may be somewhat shocked when in the seventeenth century Hobbes states this theory in trenchant terms and combines it with many unpopular doctrines. But the way for Hobbes had been prepared of old. In the days of Edward I the text-writer whom we call Britton had put the common law into the king's mouth: all legal rules might be stated as royal commands.

Still, even in the age of the Tudors, only a small Edition: current; Page: [482]part of the law was in the statute-book. Detached pieces of superstructure were there; for the foundation men had to look elsewhere. After the brilliant thirteenth century a long, dull period had set in. The custody of the common law was now committed to a small group of judges and lawyers. They knew their own business very thoroughly, and they knew their own business very thoroughly, and they knew nothing else. Law was now divorced from literature; no one attempted to write a book about it. The decisions of the courts at Westminster were diligently reported and diligently studied, but no one thought of comparing English law with anything else. Roman law was by this time an unintelligible, outlandish thing, perhaps a good enough law for half-starved Frenchmen. Legal education was no longer academic—the universities had nothing to do with it, they could only make canonists and civilians—it was scholastic. By stages that are exceedingly obscure, the inns of court and inns of chancery were growing. They were associations of lawyers which had about them a good deal of the club, something of the college, something of the trade-union. They acquired the “inns” or “hospices”—that is, the town houses—which had belonged to great noblemen: for example, the Earl of Lincoln's inn. The house and church of the Knights of the Temple came to their hands. The smaller societies, “inns of chancery,” became dependent on the larger societies, “inns of court.” The serjeants and apprentices who composed them enjoyed an exclusive right of pleading in court; some things might be done by an apprentice or barrister, others required a serjeant; in the Court of Common Pleas only a serjeant could be Edition: current; Page: [483]heard. It would take time to investigate the origin of that power of granting degrees which these societies wielded. To all seeming the historian must regard it as emanating from the king, though in this case, as in many other cases, the control of a royal prerogative slowly passed out of the king's hand. But here our point must be, that the inns developed a laborious system of legal education. Many years a student had to spend in hearing and giving lectures and in pleading fictitious causes before he could be admitted to practice.

It is no wonder that under the fostering care of these societies English jurisprudence became an occult science and its professors “the most unlearned kind of most learned men.” They were rigorous logicians, afraid of no conclusion that was implicit in their premises. The sky might fall, the Wars of the Roses might rage, but they would pursue the even course of their argumentation. They were not altogether unmindful of the social changes that were going on around them. In the fifteenth century there were great judges who performed what may seem to us some daring feats in the accommodation of old law to new times. Out of unpromising elements they developed a comprehensive law of contract; they loosened the bonds of those family settlements by which land had been tied up; they converted the precarious villein tenure of the Middle Ages into the secure copyhold tenure of modern times. But all this had to be done evasively and by means of circumventive fictions. Novel principles could not be admitted until they were disguised in some antique garb.

A new and a more literary period seems to be beginning in the latter half of the fifteenth century, when Sir John Fortescue, the Lancastrian Chief Justice, writing for the world at large, contrasts the constitutional kingship of England with the absolute monarchy of France, and Sir Thomas Littleton, a Justice in the Court of Common Pleas, writing for students of English law, publishes his lucid and classical book on the tenure of land. But the hopes of a renascence are hardly fulfilled. In the sixteenth century many famous lawyers added to their fame by publishing reports of decided cases and by making “abridgments” of the old reports, and a few little treatises were compiled; but in general the lawyer seems to think that he has done all for jurisprudence that can be done when he has collected his materials under a number of rubrics alphabetically arranged. The alphabet is the one clue to the maze. Even in the days of Elizabeth and James I Sir Edward Coke, the incarnate common law, shovels out his enormous learning in vast disorderly heaps. Carlyle's felicity has for ever stamped upon Coke the adjective “tough”—“tough old Coke upon Littleton, one of the toughest men ever made.” We may well transfer the word from the man to the law that was personified in him. The English common law was tough, one of the toughest things ever made. And well for England was it in the days of Tudors and Stuarts that this was so. A simpler, a more rational, a more elegant system would have been an apt instrument of despotic rule. At times the judges were subservient enough: the king could dismiss them from their offices at a moment's notice; but the clumsy, cumbrous system, though it might Edition: current; Page: [485]bend, would never break. It was ever awkwardly rebounding and confounding the statecraft which had tried to control it. The strongest king, the ablest minister, the rudest Lord-Protector could make little of this “ungodly jumble.”

To this we must add that professional jealousies had been aroused by the evolution of new courts, which did not proceed according to the course of the common law. Once more we must carry our thoughts back to the days of Edward I. The three courts—King's Bench, Common Bench, and Exchequer—had been established. There were two groups of “Justices,” and one group of “Barons” engaged in administering the law. But behind these courts there was a tribunal of a less determinate nature. Looking at it in the last years of the thirteenth century we may doubt as to what it is going to be. Will it be a house of magnates, an assembly of the Lords Spiritual and Temporal, or will it be a council composed of the king's ministers and judges and those others whom he pleases for one reason or another to call to the council board? As a matter of fact, in Edward I's day, this highest tribunal seems to be rather the council than the assembly of prelates and barons. This council is a large body; it comprises the great officers of state—Chancellor, Treasurer, and so forth; it comprises the judges of the three courts; it comprises also the Masters or chief clerks of the Chancery, whom we may liken to the “permanent under-secretaries” of our own time; it comprises also those prelates and barons whom the king thinks fit to have about him. But the definition of this body seems somewhat vague. The sessions or Edition: current; Page: [486]“parliaments” in which it does justice often coincide in time with those assemblies of the Estates of the Realm by which, in later days, the term “parliaments” is specifically appropriated, and at any moment it may take the form of a meeting to which not only the ordinary councillors, but all the prelates and barons, have been summoned. In the light which later days throw back upon the thirteenth century we seem to see in the justiciary “parliaments” of Edward I two principles, one of which we may call aristocratic, while the other is official; and we think that, sooner or later, there must be a conflict between them—that one must grow at the expense of the other. And then again we cannot see very plainly how the power of this tribunal will be defined, for it is doing work of a miscellaneous kind. Not only is it a court of last resort in which the errors of all lower courts can be corrected, but as a court of first instance it can entertain whatever causes, civil or criminal, the king may evoke before it. Then lastly, acting in a manner which to us seems half judicial and half administrative, it hears the numerous petitions of those who will urge any claim against the king, or complain of any wrong which cannot be redressed in the formal course of ordinary justice.

In the course of the fourteenth century some of these questions were settled. It became clear that the Lords’ House of Parliament, the assembly of prelates and barons, was to be the tribunal which could correct the mistakes in law committed by the lower courts. The right of a peer of the realm to be tried for capital crimes by a court composed of his peers was established. Edition: current; Page: [487]Precedents were set for those processes which we know as impeachments, in which the House of Lords hears accusations brought by the House of Commons. In all these matters, therefore, a tribunal technically styled “the King in Parliament,” but which was in reality the House of Lords, appeared as the highest tribunal of the realm. But, beside it, we see another tribunal with indefinitely wide claims to jurisdiction—we see “the King in Council.” And the two are not so distinct as an historian, for his own sake and his readers’, might wish them to be. On the one hand, those of the King's Council who are not peers of the realm, in particular the judges and the Masters of the Chancery, are summoned to the Lords’ House of Parliament, and only by slow degrees is it made plain to them that, when they are in that House, they are mere “assistants” of the peers, and are only to speak when they are spoken to. On the other hand, there is a widespread, if not very practical, belief that all the peers are by rights the king's councillors, and that any one of them may sit at the council board if he pleases. Questions enough are left open for subsequent centuries.

Meanwhile the Council, its actual constitution varying much from reign to reign, does a great deal of justice, for the more part criminal justice, and this it does in a summary, administrative way. Plainly there is great need for such justice, for though the representative commoners and the lawyers dislike it, they always stop short of demanding its utter abolition. The commoners protest against this or that abuse. Sometimes they seem to be upon the point of denouncing Edition: current; Page: [488]the whole institution as illegal; but then there comes some rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, which convinces them that, after all, there is a place for a masterful court which does not stand upon ceremony, which can strike rapidly and have no need to strike twice. They cannot be brought to admit openly that one main cause of the evils that they deplore is the capricious clumsiness of that trial by jury which has already become the theme of many a national boast. They will not legislate about the matter, rather they will look the other way while the Council is punishing rich and powerful offenders, against whom no verdict could have been obtained. A hard line is drawn between the felonies, for which death is the punishment, and the minor offences. No one is to suffer loss of life or limb unless twelve of his neighbours have sworn to his guilt after a solemn trial; but the Council must be suffered to deal out fines and imprisonments against rioters, conspirators, bribers, perjured jurors; otherwise there will be anarchy. The Council evolves a procedure for such cases, or rather it uses the procedure of the canon law. It sends for the accused; it compels him to answer upon oath written interrogatories. Affidavits, as we should call them, are sworn upon both sides. With written depositions before them, the Lords of the Council, without any jury, acquit or convict. The extraction of confessions by torture is no unheard-of thing.

It was in a room known as the Star Chamber that the Council sat when there was justice to be done, and there, as “the Court of Star Chamber,” it earned its Edition: current; Page: [489]infamy. That infamy it fairly earned under the first two Stuart kings, and no one will dispute that the Long Parliament did well in abolishing it. It had become a political court and a cruel court, a court in which divines sought to impose their dogmas and their ritual upon a recalcitrant nation by heavy sentences; in which a king, endeavouring to rule without a Parliament, tried to give the force of statutes to his proclamations, to exact compulsory loans, to gather taxes that the Commons had denied him; a whipping, nose-slitting, ear-cropping court; a court with a grim, unseemly humour of its own, which would condemn to an exclusive diet of pork the miserable Puritan who took too seriously the Mosaic prohibition of swine's flesh. And then, happily, there were doubts about its legality. The theory got about that it derived all its lawful powers from a statute passed in 1487, at the beginning of Henry VII's reign, while manifestly it was exceeding those powers in all directions. We cannot now accept that theory, unless we are prepared to say that for a century and a half all the great judges, including Coke himself, had taken an active part in what they knew to be the unlawful doings of the Council—the two Chief Justices had habitually sat in the Star Chamber. Still we may be glad that this theory was accepted. The court was abolished in the name of the common law.

It had not added much to our national jurisprudence. It had held itself aloof from jurisprudence; it had been a law unto itself, with hands free to invent new remedies for every new disease of the body politic. It had little regard for precedents, and, therefore, men Edition: current; Page: [490]were not at pains to collect its decisions. It had, however, a settled course of procedure which, in its last days, was described by William Hudson in a very readable book. Its procedure, the main feature of which was the examination of the accused, perished with it. After the Civil War and the Restoration no attempt was made to revive it, but that it had been doing useful things then became evident. The old criminal law had been exceedingly defective, especially in relation to those offences which did not attain the rank of felonies. The King's Bench had, for the future, to do what the Star Chamber had done, but to do it in a more regular fashion, and not without the interposition of a jury.

Far other were the fortunes of the Star Chamber's twin sister, the Court of Chancery. Twin sisters they were; indeed, in the fourteenth century it is hard to tell one from the other, and even in the Stuart time we sometimes find the Star Chamber doing things which we should have expected to be done by the Chancery. But, to go back to the fourteenth century, the Chancellor was the king's first minister, the head of the one great secretarial department that there was, the President of the Council, and the most learned member of the Council. Usually he was a bishop; often he had earned his see by diligent labours as a clerk in the Chancery. It was natural that the Lords of the Council should put off upon him, or that he should take to himself, a great deal of the judicial work that in one way or another the Council had to do. Criminal cases might come before the whole body, or some committee of it. Throughout the Middle Ages Edition: current; Page: [491]criminal cases were treated as simple affairs; for example, justices of the peace who were not trained lawyers could be trusted to do a great deal of penal justice, and inflict the punishment of death. But cases involving civil rights, involving the complex land law, might come before the Council. Generally, in such cases, there was some violence or some fraud to be complained of, some violence or fraud for which, so the complainant alleged, he could get no redress elsewhere. Such cases came specially under the eye of the Chancellor. He was a learned man with learned subordinates, the Masters of the Chancery. Very gradually it became the practice for complainants who were seeking the reparation of wrongs rather than the punishment of offences, to address their petitions, not to the King and Council, but to the Chancellor. Slowly men began to think of the Chancellor, or the Chancery of which he was president, as having a jurisdiction distinct from, though it might overlap, that of the Council.

What was to be the sphere of this jurisdiction? For a long time this question remained doubtful. The wrongs of which men usually complained to the Chancellor were wrongs well enough known to the common law—deeds of violence, assaults, land-grabbing, and so forth. As an excuse for going to him, they urged that they were poor while their adversaries were mighty, too mighty for the common law, with its long delays and its purchasable jurors. Odd though this may seem to us, that court which was to become a byword for costly delay started business as an expeditious and a poor man's court. It met with much opposition: the Edition: current; Page: [492]House of Commons did not like it, and the common lawyers did not like it; but still there was a certain half-heartedness in the opposition. No one was prepared to say that there was no place for such a tribunal; no one was prepared to define by legislation what its place should be.

From the field of the common law the Chancellor was slowly compelled to retreat. It could not be suffered that, merely because there was helplessness on the one side and corruptive wealth on the other, he should be suffered to deal with cases which belonged to the old courts. It seems possible that this nascent civil jurisdiction of the Chancellor would have come to naught but for a curious episode in the history of our land law. In the second half of the fourteenth century many causes were conspiring to induce the landholders of England to convey their lands to friends, who, while becoming the legal owners of those lands, would, nevertheless, be bound by an honourable understanding as to the uses to which their ownership should be put. There were feudal burdens that could thus be evaded, ancient restrictions which could thus be loosened. The Chancellor began to hold himself out as willing to enforce these honourable understandings, these “uses, trusts or confidences” as they were called, to send to prison the trustee who would not keep faith. It is an exceedingly curious episode. The whole nation seems to enter into one large conspiracy to evade its own laws, to evade laws which it has not the courage to reform. The Chancellor, the judges, and the Parliament seem all to be in the conspiracy. And yet there is really no conspiracy: men are but living from hand Edition: current; Page: [493]to mouth, arguing from one case to the next case, and they do not see what is going to happen. Too late the king, the one person who had steadily been losing by the process, saw what had happened. Henry VIII put into the mouth of a reluctant Parliament a statute which did its best—a clumsy best it was—to undo the work. But past history was too strong even for that high and mighty prince. The statute was a miserable failure. A little trickery with words would circumvent it. The Chancellor, with the active connivance of the judges, was enabled to do what he had been doing in the past, to enforce the obligations known as trusts. This elaborate story we can only mention by the way; the main thing that we have to notice is that, long before the Tudor days—indeed, before the fourteenth century was out—the Chancellor had acquired for himself a province of jurisdiction which was, in the opinion of all men, including the common lawyers, legitimately his own. From time to time he would extend its boundaries, and from time to time there would be a brisk quarrel between the Chancery and the law courts over the annexation of some field fertile of fees. In particular, when the Chancellor forbade a man to sue in a court of law, or to take advantage of a judgment that he had obtained in a court of law, the judges resented this, and a bitter dispute about this matter between Coke and Ellesmere gave King James I a wished-for opportunity of posing as the supreme lord of all the justice that was done in his name and awarding a decisive victory to his Chancellor. But such disputes were rare. The Chancellors had found useful work to do, and they had been suffered to do it without Edition: current; Page: [494]much opposition. In the name of equity and good conscience they had, as it were, been adding an appendix to the common law. Every jot and tittle of the law was to be fulfilled, and yet, when a man had done this, more might be required of him in the name of equity and good conscience.

Where were the rules of equity and good conscience to be found? Some have supposed that the clerical Chancellors of the last Middle Ages found them in the Roman or the Canon Law, and certain it is that they borrowed the main principles of their procedure from the canonists. Indeed, until some reforms that are still very recent, the procedure of the Court of Chancery was the procedure of an Ecclesiastical Court. In flagrant contrast to the common law, it forced the defendant to answer on oath the charges that were brought against him; it made no use of the jury; the evidence consisted of written affidavits. On the other hand, it is by no means certain that more than this was borrowed. So far as we can now see, the Chancellors seem to get most of their dominant ideas from the common law. They imitate the common law whenever they can, and depart from it reluctantly at the call of natural justice and common honesty. Common honesty requires that a man shall observe the trust that has been committed to him. If the common law will not enforce this obligation it is failing to do its duty. The Chancellor intervenes, but in enforcing trusts he seizes hold of and adopts every analogy that the common law presents. For a long time English equity seems to live from hand to mouth. Sufficient for the day are the cases in that day's cause-list. Even in the seventeenth Edition: current; Page: [495]century men said that the real measure of equity was the length of the Chancellor's foot. Under the Tudors the volume of litigation that flowed into the Chancery was already enormous; the Chancellor was often sadly in arrear of his work, and yet very rarely were his decisions reported, though the decisions of the judges had been reported ever since the days of Edward I. This shows us that he did not conceive himself to be straitly bound by precedents: he could still listen to the voice of conscience. The rapid increase in the number of causes that he had to decide began to make his conscience a technical conscience. More and more of his time was spent upon the judgment-seat. Slowly he ceased to be, save in ceremonial rank, the king's first minister. Wolsey was the last Chancellor who ruled England. Secretaries of State were now intervening between the king and his Great Seal. Its holder was destined to become year by year more of a judge, less of a statesman. Still we must look forward to the Restoration for the age in which the rules of equity begin to take a very definite shape, comparable in rigour to the rules of the common law.

Somehow or another, England, after a fashion all her own, had stumbled into a scheme for the reconciliation of permanence with progress. The old mediaeval criminal law could be preserved because a Court of Star Chamber would supply its deficiencies; the old private law could be preserved because the Court of Chancery was composing an appendix to it; trial by jury could be preserved, developed, transfigured because other modes of trial were limiting it to an appropriate sphere. And so our old law maintained its continuity. Edition: current; Page: [496]As we have said above, it passed scathless through the critical sixteenth century, and was ready to stand up against tyranny in the seventeenth. The Star Chamber and the Chancery were dangerous to our political liberties. Bacon could tell King James that the Chancery was the court of his absolute power. But if we look abroad we shall find good reason for thinking that but for these institutions our old-fashioned national law, unable out of its own resources to meet the requirements of a new age, would have utterly broken down, and the “ungodly jumble” would have made way for Roman jurisprudence and for despotism. Were we to say that that equity saved the common law, and that the Court of Star Chamber saved the constitution, even in this paradox there would be some truth.