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The History of the Common Law of England
by Hale, Matthew

Concerning the Progress of the Laws of England after the Time of King William I, until the Time of King Edward 2

That which precedes in the Two foregoing Chapters, gives us some Account of the Laws of England, as they stood in and after the great Change which happened under King William I commonly called The Conqueror. I shall now proceed to the History thereof in the ensuing Times, until the Reign of King Edward 2.

William I having Three Sons; Robert the eldest, William the next, and Henry the youngest, disposed of the Crown of England to William his second Son, and the Dutchy of Normandy to Robert his eldest Son; and accordingly William 2 commonly called, William Rufus, succeeded his Father in this Kingdom. We have little memorable of him in relation to the Laws, only that he severely press'd and extended the Forest Laws.

Henry I, Son of William I and Brother of William 2 succeeded his said Brother in the Kingdom of England, and afterwards expelled his eldest Brother Robert out of the Dutchy of Normandy also. He proceeded much in the Benefit of the Laws, viz.

First, He restored the Free-Election of Bishops and Abbots, which before that Time he and his Predecessors invested, Per Anniulum & Bacculum; yet reserving those Three Ensigns of the Patronage thereof, viz. Conge d'Eslire, Custody of the Temporalties, and Homage upon their Restitution. Vide Hoveden, in Vita sua.

But Secondly, The great Essay he made, was the composing an Abstract or Manual of Laws, wherein he confirm'd the Laws of Edward the Confessor, Cum illis Emendationibus quibus eam Pater meus emendavit Baronum suorum Concilio; and then adds his own Laws, some whereof seem to taste of the Canon Law. The whole Collection is transcribed in the Red Book of the Exchequer; from whence it is now printed in the End of Lambard's Saxon Laws; and therefore not needfull to be here repeated.

They, for the most Part, contain a Model of Proceedings in the County Courts, the Hundred Courts, and the Courts Leet; the former to be held Twelve Times in the Year, the latter twice; and also of the Courts Baron. These were the ordinary usual Courts, wherein Justice was then, and for a long Time after, most commonly administred; also they concern Criminal Proceedings, and the Punishment of Crimes, and some few Things touching Civil Actions and Interests, as in Chapter 70, directing Descents, viz.

Si quis sine Liberis decesserit Pater aut Mater ejus in Hereditatem succedant, vel Frater vel Soror, si Pater & Mater desint; si nec hos habeat, Frater vel Soror Patris vel Matris, & deinceps in quintum Genetalium, qui cum propiores in parentela sint hereditario Jure succedant; Et dum virilis sexus extiterit & haereditas ab inde sit Femina non haereditetur; primum Patris Feodum primogenitus Filius habeat. Emptiones vero & deinceps Acquisitiones det cui magis velit, sed si Bockland habeat quam ei Parentes dederint, Mittat eam extra cognationem suam.

I have observ'd and inserted this Law, for Two Reasons, viz. First, To justify what I before said, That the Laws of Normandy took the English Laws for their Pattern in many Things; Vide le Contumier, cap. 25, 26, 36, &c. And Secondly, To see how much the Laws of England grew and increased in their Particularity and Application between this Time and the Laws of William I which in Chapter 36, has no more touching Descents but this, viz. Si quis intestatus obierit, liberi ejus haereditatem equsliter dividant. But Process of Time grafted thereupon, and made particular Provisions for particular Cases, and added Distributions and Subdivisions to those General Rules.

These Laws of King Henry I are a kind of Miscellany, made up of those ancient Laws, called, The Laws of the Confessor, and King William I and of certain Parts of the Canon and Civil Law, and of other Provisions, that Custom and the Prudence of the King and Council had thought upon, chosen, and put together.

King Stephen succeeded, by Way of Usurpation, upon Maud the sole Daughter and Heir of King Hen. I. The Laws of Hen. I grew tedious and ungrateful to the People, partly because new, and so not so well known, and partly because more difficult and severe than those ancient Laws, called, The Confessor's; for Walsingham, in his Ypodigma Neustriae, tells us, That the Londoners petitioned Queen Maud, ut liceret eis uti Legibus sancti Edvardi & non legibus Patris sui Henrici, quia graives erant,. and that her Refusal gave Occasion to their Defection from her, and strengthened Stephen in his Usurpation; who according to the Method of Usurpers, to secure himself in the Throne, was willing and ready to gratify the Desires of the People herein; and furthermore, took his Oath, 1st, That he would not retain in his Hands the Temporalties of the Bishops: 2dly, That he would remit the Severity of the Forest Laws; and 3dly, That he would also remit the Tribute of Danegelt: But he performed nothing.

His Times were troublesome, he did little in relation to the Laws; nor have we any Memorial of any Record touching his Proceedings therein, only there are some few Pipe Rolls of his Time, relating to the Revenue of the Crown.

Henry 2, the Son of Maud, succeeded Stephen, he reigned long, viz. about Thirty Five Years; and tho' he was not without great Troubles and Difficulties, yet he built up the Laws and the Dignity of the Kingdom to a great Height and Perfection. For,

First, In the Entrance of his Government he settled the Peace of the Kingdom; he also reformed the Coin, which was much adulterated and debased in the Times and Troubles of King Stephen, Et Leges Henrici avi sui praecepit per totum Regnum inviolabiliter observari. Hoveden.

Secondly, Against the Insolencies and Usurpations of the Clergy. he by the Advice of his Council or Parliament at Clarendon, enacted those Sixteen Articles mentioned by Mat. Paris, sub Anno 1164. They are long, and therefore I remit you thither for the Particulars of them.

'Tis true, Thomas Becket, Archbishop of Canterbury, boldly and insolently took upon him to declare many of those Articles void, especially those Five mentioned in his Epistle to Suffragans, recorded by Hoveden, viz. 1st, That there should be no Appeal to the Bishop without the King's Licence. 2dly, That no Archbishop or Bishop should go over the Seas at the Pope's Command without the King's Licence. 3dly, That the Bishop should not excommunicate the King's Tenants in Capite without the King's Licence. 4thly, That the Bishop should not have the Conuzance of Perjury, or Fidei Laesionis. And, 5thly, That the Clergy should be convened before Lay Judges, and that the King's Courts should have Conuzance of Churches and of Tythes.

Thirdly, He raised up the Municipal Laws of the Kingdom to a greater Perfection, and a more orderly and regular Administration than before; 'tis true, we have no Record of judicial Proceedings so ancient as that Time, except the Pipe Rolls in the Exchequer, which are only Accounts of his Revenue: But we need no other Evidence hereof than the Tractate of Glanville, which tho' perhaps it was not written by that Ranulphus de Glanvilla, who was Justitiarius Angliae under Hen. 2, yet it seems to be wholly written at that Time; and by that Book, tho' many Parts thereof are at this Day antiquated and altered, and in that long Course of Time, which has elapsed since that King's Reign, much enlarged, reformed, and amended; yet by comparing it with those Laws of the Confessor and Conqueror, yea, and the Laws of his Grandfather King Hen. I which he confirmed; it will easily appear, that the Rule and Order, as well as the Administration of the Law, was greatly improved beyond what it was formerly, and we have more Footsteps of their Agreement and Concord herein with the Laws, as they were used from the Time of Edw. I and downwards, than can be found in all those obsolete Laws of Hen. I which indeed were but disorderly, confused and general Things, rather the Cases and Shells of directing the Way of Administration than Institutions of Law, if compared with Glanville's Tractate of our Laws.

Fourthly, The Administration of the Common Justice of the Kingdom, seems to be wholly dispensed in the County Courts, Hundred Courts, and Courts Baron, except some of the greater Crimes reformed by the Laws of King Hen. I and that Part thereof which was sometimes taken up by the Justitiarius Anglicae: This doubtless bred great Inconvenience, Uncertainty, and Variety in the Laws, viz.

First, by the Ignorance of the Judges, which were the Freeholders of the County: For altho' the Alderman or Chief Constable of every Hundred was always to be a Man learned in the Laws; and altho' not only the Freeholders, but the Bishops, Barons, and great Men, were by the Laws of King Hen. I appointed to attend the County Court; yet they seldom attend there, or if they did, in Process of Time they neglected the Study of the English Laws, as great Men usually do.

Secondly, Another Inconvenience was, That this also bred great Variety of Laws, especially in the several Counties: For the Decisions or Judgments being made by divers Courts, and several Independent Judges and Judicatories, who had no common Interest among them in their several Judicatories, thereby in Process of Time every several County would have several Laws, Customs, Rules, and Forms of Proceeding, which is always the Effect of several Independent Judicatories administred by several Judges.

Thirdly, A Third Inconvenience was, That all the Business of any Moment was carried by Parties and Factions: For the Freeholders being generally the Judges, and Conversing one among another, and being as it were the Chief Judges, not only of the Fact, but of the Law; every Man that had a Suit there, sped according as he could make Parties; and Men of great Power and Interest in the County did easily overbear others in their own Causes, or in such wherein they were interested, either by Relation of Kindred, Tenure, Service, Dependance, or Application.

And altho' in Cases of false Judgment, the Law, even as then used, proved a Remedy by Writ of false Judgment before the King or his Chief Justice; and in Case the Judgment was found to be such in the County Court, all the Suiters were considerably amerced, (which also continued long after in Use with some Severity) yet this proved but an ineffectual Remedy for those Mischiefs.

Therefore the King took another and a more effectual Course; for in the 22d Year of his Reign, by Advice of his Parliament held at Northampton, he instituted Justices itinerant, dividing the Kingdom into Six Circuits, and to every Circuit allotting Three Judges, Knowing or Experienced in the Laws of the Realm: These Justices with their several Circuits are declared by Hoveden, sub eodem Anno, i. e. 22 H. 2. viz.

1. Hugo Cressy, Walterus filius Roberti, & Robertus Maunsel, for Norfolk, Suffolk, Cambridge, Huntingdon, Bedford, Buckingham, Essex, and Hartford Counties.

2. Hugo de Gundevilla, W. filius Radulphi, & W. Basset, for Lincoln, Nottingham, Derby, Stafford, W arwick, Northampton, and Leicester Counties.

3. Robertus filius Bernardi, Richardus Giffard, & Rogerus filius Ramfrey, for Kent, Surrey, Sussex, Hampshire, Berks, and Oxon Counties.

4. W. filius Stephani, Bertein de Verdun, & Turstavi filius Simonis, for Hereford, Gloucester, Worcester, and Salop Countries.

5. Radulphus filius Stephani, W. Ruffus, & Gilbertus Pipard, for the Counties of Wilts, Dorset, Somerset, Devon, and Cornwall.

6. Robertus deWatts, Radulphus de Glanvilla, & Robertus Picknot, for the Counties of York, Richmond, Lancaster Copland, Westmorland, Northumberland, and Cumberland.

Hi, (Consilio Archiepiscoporum, Episcoporum, Comitum & Baronum Regni, &c. apud Nottingham existentium) missi sunt per singulos Angliae Comitatus & juraverunt quod cuilibet jus suum conservarent illae sum. Hoveden fo. 313. & Mat. Paris, in Anno 1176.

And that these Men were well known in the Law, appears by their Companion Radulphus de Glanvilla, who seems to be the Author of the Treatise De Legibus Angliae, and was afterwards made Justitiarius Angliae.

To those Justices, was afterwards committed the Conuzance of all Civil and Criminal Pleas happening within their Divisions, and likewise Pleas of the Crown, Pleas touching Liberties, and the King's Rights; and the better to acquaint them with their Business, there were certain Assises which were first enacted at Clarendon, and afterwards confirmed at Northampton; they were not much unlike the Capitula ltineris mentioned in our old Magna Charta, but not so perfect, and are set down by Hoveden iubi supra, and are too long to be here inserted: I shall only take Notice of this one, viz. Establishing Descents, because I shall hereafter have Occasion to use it, Si quis obierit Francus Tenens haeredes ipsius remaneant in talem Seisina qualem Pater suus, &c.

But besides those Courts in Eyre, there were two great standing Courts, viz. The Exchequer, and the Court of Kings-Bench, Vel Curiam coram ipso Rege, vel ejus Justiciario; and it was provided by the above-mentioned Assisae, "Quod Justiciae faciant omnes Justicias & Rectitudines Spectantes ad Dominium Regis, & ad Coronam suam, per breve Domini Regis vel illorum qui in ejus Loco erunt de Feodo dimidii Militis & infra, Nisi tam grandis sit quaerela quod non possit deduci sine Domino Rege vel talis quam Justiciae ei reponunt pro dubitatione sua, vel ad illos qui in Loco ejus erunt," &c.

Neither do I find any distinct Mention of the Court of Common Bench in the Time of this King, tho' in the Time of King John there is often mention made thereof, and the Rolls of that Court of King John's Time are yet extant upon Record, & vide post. sub Richardi Primi.

The Limitation of the Assise of Novel Disseisin, is by those Assises appointed to be, a tempore quo Dominus Rex venit in Angliam proximam post Pacis factam inter ipsum, & Regem filium suum.

The same King afterwards, in the Twenty fifth Year of his Reign, divided the Limits of his Itinerant Justices into Four Circuits or Divisions, and to each Circuit assigned a greater Number of Justices, viz. Five at least, which are thus set down in Hoveden, Folio 337. viz.

Anno 1179, 25 H. 2. Magno Concilio celebrato apud Windeshores, Communi Consilio Archiepiscoporum Comitum & Baronum & coram Rege Filio Suo, Rex divisit Angliam in quatuor Partes, & unicuique partium praefecit viros sapientes ad faciendum Justitiam in Terra sua in hunc Modum.

1. Ricardus-Episcopus Winton, Ricardus Thesaurarius Regis, Nicholaus filius Turoldi, Thomas Basset & Robertus de Whitefield, for the Counties of Southampton, Wilts, Gloucester, Somerset, Devon, Cornwall, Berks and Oxon.

2. Galfridus Eliensis Episcopus, Nicholaus Capellanus Regis, Gilbertus Pipard, Reginald de Wisebeck Capellanus Reges & Gaulfridus Hosce, for the Counties of Cambridge, Huntingdon, Northampton, Leicester, Warwick, Winchester, Hereford, Stafford and Salop.

3. Johannes Episcopas Norwicensis, Hugo Murdac Clericus Regis, Michael Bellet, Richardus de le Pec, & Radulphus Brito, for Norfolk, Suffolk, Essex, Hartford, Middlesex, Kent, Surrey, Sussex, Bucks and Bedford.

4. Galfredus de Luci, Johannes Comyn, Hugo de Gaerst, Radulphus de Glanvilla, W. de Bendings, Alanus de Furnellis, for the Counties of Nottingham, Derby, York, Northumberland, Westmorland, Cumberland, and Lancaster.

Isti sunt Justiciae in Curia Regis constituti ad audiendum clamores Populi.

This Prince did these Three notable Things, viz.

First, By this Means, he improved and perfected the Laws of England, and doubtless transferred over many of the English Laws into Normandy, which, as before is observed, caused that great Suitableness between their Laws and ours; so that the Similitude did arise much more by a Conformation of their Laws to those of England, than by any Conformation of the English Laws to theirs, especially in the Reigns of King Hen. 2 and his Two Sons, King Richard, and King John, both of whom were also Dukes of Normandy.

Secondly, He check'd the Pride and Insolence of the Pope and the Clergy, by those Constitutions made in a Parliament at Clarendon, whereby he restrained the Exorbitant Power of the Ecclesiasticks, and the Exemption they claimed from Secular Jurisdiction. And,

Thirdly, He subdued and conquered Ireland, and added it to the Crown of England, which Conquest was begun by Richard Earl of Stigule or Strongbow, 14 H. 2. But was perfected by the King himself in the Seventeenth Year of his Reign, and for the greater Solemnity of the Business, was ratified by the Fealties of the Bishops and Nobles of Ireland, and by a Bull of Confirmation from Pope Alexander, who was willing to interest himself in that Business, to ingratiate himself with the King, and to gain a Pretence for that arrogant Usurpation of disposing of Temporal Dominions, Vide Hoveden, Anno 14 H. 2.

Richard I eldest Son of King Henry 2 succeeded his Father. I have seen little of Record touching the Juridicial Proceedings, either of him, or his said Father, other than what occurs in the Pipe-Rolls in the Exchequer, which both in the Time of Hen. 2, Rich. I, and King John, and all the succeeding Kings, are fairly preserved; and the best Remembrances that we have of this King's Reign in relation to the Law, are what Roger Hoveden's Annals have delivered down to us, viz.

First, He instituted a Body of Naval Laws in his Return from the Holy Land, in the Island of Oleron, which are yet extant with some Additions; De quibus, Vide Mr Selden's Mare Clausum, Lib. 2. cap. 24. and I suppose they are the same which are attributed to him by Mat. Paris, Anno 1196. and he constituted Justices to put them in Execution.

Secondly, He observed the same Method of distributing Justice as his Father had begun, by Justices Itinerant per singulos Angliae Comitatus, to whom he deliver two Kinds of Extracts or Articles of Inquiry, viz. Capitula Coronae, much reformed and augmented from what they were before, and Capitula de Judaeis; the whole may be read in Hoveden, fo. 423. sub Anno 5 R. I. and by those Articles it appears, That at that Time there was a settled Court for the Common-Pleas, as well as for the King's Bench, tho' it seems that Pleas of Land were then indifferently held in either, as appears by the first and second Articles thereof, where we have, Placita Per breve Domini Regis, vel Per breve Capitalis Justiciae, vel a Capitali Curia Regis coram eis (Justiciis) missa: The former whereof seems to be the Common-Pleas, which held Pleas by Original Writ, which Writ was under the King's Teste when he was in England; but when he was beyond the Seas, it was under the Teste of the Justiciarius Angliae, as the Custos Regni in the King's Absence.

The Power which the Justices Itinerant had to hold Pleas in Writs of Right, or the Grand Assize, was sometimes limited, as here by the Articuli Coronae under Hen. 2. to half a Knight's Fee, or under: For here in these Articles it is, De Magnis Assisis quae sunt de centum Solidis & infra. But in the next Commissions, or Capitula Coronae, it is, De Magnis Assisis usque ad decem Libratas Terre & infra.

In his eighth Year, he established a Common Rule for Weights and Measures throughout England, called Assisa de Mensuris, wherein we find the Measure of Woollen Cloths was then the same with that of Magna Charta, 9 H. 3. viz. De diuobus ulnis infra Lisuras.

In the Year before his Death, the like Justices Errant went through many Counties of England, to whom Articles, or Capitiuls Placitorium Coronae, not much unlike the former were delivered. Vide Hoveden, sub Anno 1198. fo. 445.

And in the same Year, he issued Commissions in the Trent, Hugh de Neville being Chief Justice; and to those were also delivered Articles of Inquiry, commonly called Assisae de Foresta, which may be read at large in Hoveden, sub eodem Anno. These gave great Discontent to the Kingdom, for both the Laws of the Forest, and their Execution were rigorous and grievous.

King John succeeded his said Brother, both in the Kingdom of England, and Dutchy of Normandy; the Evidence that we have, touching the Progress of the Laws of his Time, are principally Three, viz. First. His Charters of Liberties. 2dly, The Records of Pleadings and Proceedings in his Courts; And 3dly, The Course he took for settling the English Laws in Ireland.

1. Touching the first of these, his Charters of the Liberties of England, and of the Forest, were hardly, and with Difficulty, gained by his Baronage at Stanes, Anno Dom. 1215. The Collection of the former was, as Mat. Paris tells us, upon the View of the Charter or Law of King Hen. I. which says, he contained "quasdam Libertates & Leges a Rege Edvardo Sancto, Ecclesiae & Magnatibus concessas, exceptis quibusdam Libertatibus quas idem Rex de suo adjecit"; and that thereupon the Baronage fell into a Resolution to have those Laws granted by King John. But as it is certain, that the Laws added by King Hen. I to those of the Confessor were many more, and much differing from his; so the Laws contained in the Great Charter of King John, differed much from those of King Hen. I. Neither are we to think, that the Charter of King John contained all the Laws of England, but only or principally such as were of a more comprehensive Nature, and concerned the Common Rights and Liberties of the Church, Baronage and Commonalty which were of the greatest Moment, and had been most invaded by King John's Father and Brother.

The lesser Charter, or De Foresta, was to reform the Excesses and Encroachments which were made, especially in the Time of Rich. I and Hen. 2 who had made New Afforestations, and much extended the Rigour of the Forest Laws: And both these Charters do in Substance agree with that Magna Charta, & de Foresta, granted and confirm'd 9 Hen. 3. I shall not need to recite them, or to make any Collections or Inferences from them; they are both extant in the Red Book of the Exchequer, and in Mat. Paris, sub Anno 1215, and the Record and the Historian do Verbatim agree.

As to the Second Evidence we have of the Progress of the Laws in King John's Time, they are the Records of Pleadings and Proceedings which are still extant: But altho' this King endeavoured to bring the Law, and the Pleadings and Proceedings thereof, to some better Order than he found it; for saving his Profits whereof he was very studious, and for the better Reduction of it into Order and Method, we find frequently in the Records of his Time, Fines imposed, Pro Stultiloquio, which were no other than Mulcts imposed by the Court for barbarous and disorderly Pleading: From whence afterwards that Common Fine arose, Pro Pulchre Placitando, which was indeed no other than a Fine for want of it; and yet for all this, the Proceeding in his Courts were rude, imperfect, and defective, to what they were in the ensuing Times of Edw. I. &c. But some few Observables I shall take Notice of upon the Perusal of the Judicial Records of the Time of King John, viz.

1 st. That the Courts of King's-Bench and Common-Pleas were then distinct Courts, and distinctly held from the Beginning to the End of King John's Reign.

2dly, That as yet, neither one nor both of those Courts dispatch'd the Business of the Kingdom, but a great Part thereof was dispatch'd by the Justices Itinerant, which were sometimes in Use, but not without their Intermissions, and much of the Publick Business was dispatch'd in the County Courts, and in other inferior Courts; and so it continued, tho' with a gradual Decrease till the End of King Edw. I, and for some Time after: And hence it was, That in those elder Times, the Profits of those County Courts for which the Sheriff answered in his Farm, de Proficuis Comitatus; also Fines were levied there, and post Fines, and Fines Pro licentia concordandi, and great Fines there answered; Fines Pro lnquisitionibus habendi, Fines for Misdeameanors, tho' called Amerciaments, arose to great Sums, as will appear to any who shall peruse the ancient Viscontiels.

But, as I said before, the Business of Inferior Courts grew gradually less and less, and consequently their Profits and Business of any Moment came to the Great Courts, where they were dispatch'd with greater Justice and Equality. Besides, the greater Courts observing what Partiality and Brocage was used in the inferior Courts, gave a pretty quick Ear to Writs of false Judgment, which was the Appeal the Law allowed from erroneous Judgments in the County Courts; and this, by Degrees, wasted the Credit and Business of those inferior Courts.

3dly, That the Distinction between the King's-Bench and Common-Bench, as to the Point of Communia Placita, was not yet, nor for some Time after, settled; and hence it is, that frequently in the Time of King John, we shall find that Common Pleas were held in B. R. yea, in Mich. & Hill. 13 Johannis, a Fine is levied coram iPso Rege, between Gilbert Fitz Roger and Helwise his Wife, Plaintiffs, and Robert Barpyard Tenant of certain Lands in Kirby, &c.

And again, whereas there was frequently a Liberty granted anciently by the Kings of England, and allowed, Quod non implacitetur nisi coram Rege, I find inter Placita de diversis Terminis secundo Johannis, That upon a Suit between Henry de Rochala, and the Abbot of Leicester before the Justices de Banco, the Abbot pleaded the Charter of King Richard I. Quod idem Abbas pro nullo respondeat nisi coram ipso Rege vel Capitali Justitiario suo; and it is ruled against the Abbot, Quia omnia Placita quae coram Justic. de Banco tenentur, coram Domino Regi vel ejus Capitali Justitiario teneri intelliguntur. But this Point was afterwards settled by the Statute of Magna Charta, Quod Communia Placita non sequantur Curiam nostram.

4thly. That the four Terms were then held according as was used in After-times with little Variance, and had the same Denominations they still retain.

5thly. That there were oftentimes considerable Sums of Money, or Horses, or other Things given to obtain Justice; sometimes 'tis said to be, Pro habenda Inquisitione ut supra, and inter Placita incertitemporis Regis Johannis. The Men of Yarmouth against the Men of Hastings and Winchelsea, Afferunt Domino Regi tres Palsridos, & sex Asturias Narenses ad Inquisitionem habendam Per Legales, &c. and frequently the same was done, and often accounted for in the Pipe-Rolls, under the Name of Oblata; and to remedy this Abuse, was the Provision made in King John's and King Hen. 3d's Charters, Nulli Vendemus Justitiam ivel Rectum. But yet Fines upon Originals being certain, having continued to this Day, notwithstanding that Provision; but those enormous Oblata before mentioned, are thereby remedied and taken away.

6thly, That in all the Time of King John, the Purgation Per Ignem & Aquam, or the Trial by Ordeal, continued as appears by frequent Entries upon the Rolls; but it seems to have ended with this King, for I do not find it in Use in any Time after: Perchance the Barbarousness of the Trial, and Persuasions of the Clergy, prevailed at length to antiquate it, for many Canons had been made against it.

7thly, In this King's Time, the Descent of Socage as well as Knight's Service Lands to the eldest Son prevailed in all Places, unless there was a special Custom, that the Lands were partible inter Masculos;. and therefore, Mich. secundo Johannis, in a rationabili Parte Bonorum, by Gilbert Beville against William Beville his elder Brother for Lands in Gunthorpe, the Defendant pleaded, Quod Nunquam Parita Vel Partibilia fuere; and because the Defendant could not prove it, Judgment was given for the Demandant: And by Degrees it prevail'd so, that whereas at this Time the Averment came on the Part of the Heir at Law, that the Land nunquam Parita Vel Partibilis extetit; in a little Time after the Averment was turn'd on the other Hand, viz. That tho' the Land was Socage, yet unless he did aver and prove that it was Partita & Partibilis, he failed in his Demand.

Thirdly, The third Instance of the Progress of King John's Reign, in Relation to the Common Law, was his settling the same in Ireland, which he made his more immediate and particular Business: But hereof we shall add a particular Chapter by itself, when we have shewn you what Proceedings and Progress was made therein in the Time of Edw. I. The many and great Troubles that fell upon King John and the whole Kingdom, especially towards the latter End of his Reign, did much hinder the good Effect of settling the Laws of England, and consequently the Peace thereof, which might have been bottom'd, especially upon the Great Charter. But this Unfortunate Prince and Kingdom were so entangled with intestine Wars, and with the Invasion of the French, who assisted the English Barons against their King, and by the Advantages and Usurpations that the Pope and Clergy made by those Distempers, that all ended in a Confusion with the King's Death.

I come therefore to the long and troublesome Reign of Hen. 3 who was about nine Years old at his Father's Death; he being born in Festo sancti, Remigii 1207, and King John died in Festo sancti Lucae, 1216, and the young King was crown'd the 28th of October, being then in the tenth Year of his Age, and was under the Tutelage of William Earl-Marshal.

The Nobility were quick and earnest, notwithstanding his Minority, to have the Liberties and Laws of the Kingdom confirm'd; and Preparatory thereto, in the Year 1223, Writs issued to the several Counties to enquire, by twelve good and lawful Knights, Que fuerunt Libertates in Anglia tempore Regni Henrici avi sui, returnable quindena Paschae. What Success those Inquisitions had, or what Returns were made thereof, appears not: But in the next Year following, the young King standing in Need of a Supply of Money from the Clergy and Laity, none would be granted, unless the Liberties of the Kingdom were confirm'd, as they were express'd and contain'd in the two Charters of King John; which the King accordingly granted in his Parliament at Westminster, and they were accordingly proclaim'd, Ita quod Chartae utrorumque Regum in nulla inveniatur dissimiles. Mat. Paris. Anno 1224.

In the Year 1227, The King holding his Parliament at Oxford, and being now of full Age; by ill Advice, causes the two Charters he had formerly granted to be cancell'd, "Hanc occasionem praetendens, quod Chartae illae concessae fuerunt & Libertates scriptae & signatae dum ipse erat sub Custodia, nec sui Corporis aut sigilli aliquam potestatem habuit, unde viribus carere debuit," &c. Which Fact occasion'd a great disturbance in the Kingdom: And this Inconstancy in the King, was in Truth the Foundation of all his future Troubles, and yet was ineffectual to his End and Purpose; for those Charters were not avoidable for the King's Nonage, and if there could have been any such Pretence, that alone would not avoid them, for they were Laws confirm'd in Parliament.

But the Great Charter, and the Charter of the Forest, did not expire so; for in 1253, they were again, seal'd and publish'd: And because after the Battle of Evesham, the King had wholly subdued the Barons, and thereby a Jealousy might grow, that he again meant to infringe it; in the Parliament at Marlbridge, cap. 5. they are again confirm'd. And thus we have the great Settlement of the Laws and Liberties of the Kingdom establish'd in this King's Time: The Charters themselves are not every Word the same with those of King John, but they differ very little in Substance.

This Great Charter, and Charta de Foresta, was the great Basis upon which this Settlement of the English Laws stood in the Time of this King and his Son; there were also some additional Laws of this King yet extant, which much polish' d the Common Law, viz. The Statutes of Merton and Marlbridge, and some others.

We have likewise two other principal Monuments of the great Advance and Perfection that the English Laws attain'd to under this King, viz. The Tractate of Bracton, and those Records of Plea, as well in both Benches, as before the Justices Itinerant, the Records whereof are still extant.

Touching the former, viz. Bracton's Tractate, it yields us a great Evidence of the Growth of the Laws between the Times of Henry 2, and Hen. 3. If we do but compare Glanville's Book with that of Bracton, we shall see a very great Advance of the Law in Writings of the latter, over what they are in Glanville. It will be needless to instance Particulars; some of the Writs and Process do indeed in Substance agree, but the Proceedings are much more regular and settled, as they are in Bracton, above what they are in Glanville. The Book itself in the Beginning seems to borrow its Method from the Civil Law; but the greatest Part of the Substance is either of the Course of Proceedings in the Law known to the Author, or of Resolutions and Decisions in the Courts of King's-Bench and Common-Bench, and before Justices Itinerant, for now the inferior Courts began to be of little Use or Esteem.

As to the Judicial Records of the Time of this King, they were grown to a much greater Degree of Perfection, and the Pleadings more orderly, many of which are extant: But the great Troubles, and the Civil Wars, that happen'd in his Time, gave a great Interruption to the legal Proceedings of Courts; they had a particular Commission and Judicatory for Matters happening in Time of War, stiled, Placita de Tempore Turbationis, wherein are many excellent Things: They were made principally about the Battle of Evesham, and after it; and for settling of the Differences of this Kingdom, was the Dictum, or Edictum de Kenelworth made, which is printed in the old Magna Charta.

We have little extant of Resolutions in this King's Time, but what are either remember'd by Bracton, or some few broken and scatter'd Reports collected by Fitzherbet in his Abridgment. There are also some few Sums or Constitutions relative to the Law, which tho' possibly not Acts of Parliament, yet have obtain'd in Use as such; as De districtione Scaccarii, Statiutum Panis & Cervisiae Dies Communes in Banco Statutum Hiberniae, Stat. de Scaccario, Judicium Collistrigii, and others.

We come now to the Time of Edw. I, who is well stiled our English Justinian; for in his Time the Law, quasi Per Saltum, obtained a very great Perfection. The Pleadings are short indeed, but excellently good and perspicuous: And altho' for some Time some of those Imperfections and ancient inconvenient Rules obtain'd; as for Instance, in Point of Descents, where the middle Brother held of the eldest, and dying without Issue, the Lands descended to the youngest, upon that old Rule in the Time of Hen. 2. Nemo Potest esse Dominius & Haeres, mention'd in Glanville, at least if he had once receiv'd Homage, 13 E. I. Fitz Avowry 235. Yet the Laws did never in any one Age receive so great and sudden an Advancement, nay, I think I may safely say, all the Ages since his Time have not done so much in Reference to the orderly settling and establishing of the distributive justice of this Kingdom, as he did within a short Compass of the thirty-five Years of his Reign, especially about the first thirteen Years thereof.

Indeed many Penal Statutes and Provisions, in Relation to the Peace and good Government of the Kingdom, have been since made. But as touching the Common Administration of Justice between Party and Party, and accommodating of the Rules, and of the Methods and Orders of Proceding, he did the most, at least of any King since William I and left the same as a fix'd and stable Rule and Order of Proceeding, very little differing from that which we now hold and practice, especially as to the Substance and principal Contexture thereof.

It would be the Business of a Volume to set down all the Particulars, and therefore I shall only give some short Observations touching the same.

First, He perfectly settled the Great Charter, and Charta de Foresta, not only by a Practice consonant to them in the Distribution of Law and Right, but also by that solemn Act passed 25 E. I. and stiled Confirmationes Cartarum.

Secondly, He established and distributed the several Jurisdictions of Courts within their proper Bounds. And because this Head has several Branches, I shall subdivide the same, viz.

1. He check'd the Incroachments and insolencies of the Pope and the Clergy, by the Statute of Carlisle.

2. He declared the Limits and Bounds of the Ecclesiastical Jurisdiction, by the Statute of Circumspecte Agatis & Articuli Cleri. For note, Tho' this later Statute was not publisbed till Edw. 2, yet was compiled in the Beginning of Edw. I.

3. He established the Limits of the Court of Common Pleas, perfectly performing the Direction of Magna Charta, Qiuod Communia Placita non sequantur Curia nostra, in relation to B. R. and in express Terms extending it to the Court of Exchequer by the Statute of Articuli super Chartas, cap. 4. It is true, upon my First reading of the Placita de Banco of Edw. I. I found very many Appeals of Death, of Rape, and of Robbery therein; and therefore I doubted, whether the same were not held at least by Writ in the Common Pleas Court: But upon better Inquiry, I found many of the Records before Justices Itinerant were enter'd or fill'd up among the Records of the Common Pleas, which might occasion that Mistake.

4. He establish'd the Extent of the Jurisdiction of the Steward and Marshal. Vide Articuli super Chartas, cap. 3. And,

5. He also settled the Bounds of Inferior Courts, not only of Counties, Hundreds, and Courts Baron, which he kept within their proper and narrow Bounds, for the Reasons given before; and so gradually the Common Justice of the Kingdom came to be administred by Men knowing in the Laws, and conversant in the great Courts of B. R. and C. B. and before Justices Itinerant; and also by that excellent Statute of Westminster 1. cap. 35. he kept the Courts of Great Men within their Limits, under several Penalties, wherein ordinarily very great Incroachments and Oppressions were exercised.

The Third general Observation I make is, He did not only explain, but excellently enforc'd, Magna Charta, by the Statute De Tallagio non concedendo, 34 E. I.

Fourthly, He provided against the Interruption of the Common Justice of the Kingdom, by Mandates under the Great Seal, or Privy Seal, by the Statute of Articuli super Chartas, cap 6. which, notwithstanding Magna Charta, had formerly been frequent in Use.

Fifthly, He settled the Forms, Solemnities, and Efficacies of Fines, confining them to the Common-Pleas, and to Justices Itinerant, and appointed the Place where they brought the Records after their Circuits, whereby one common Repository might be kept of Assurances of Lands; which he did by the Statute De modo levandi Fines, 18 E. I.

Sixthly, He settled that great and orderly Method for the Safety and Preservation of the Peace of the Kingdom, and suppressing of Robberies, by the Statute of Winton.

Seventhly, He settled the Method of Tenures, to prevent Multiplicity of Penalties, which grew to a great Inconvenience, and remedied it by the Statute of Quia Emptores Terrarum, 18 E. I.

Eighthly, He settled a speedier Way for Recovery of Debts, not only for Merchants and Tradesmen, by the Statutes of Acton, Burnel, & de Mercatoribus, but also for other Persons, by granting an Execution for a Moiety of the Lands by Elegit.

Ninthly, He made effectual Provision for Recovery of Advowsons and Presentations to Churches, which was before infinitely lame and defective, by Statute Westminster 2. cap. I.

Tenthly, He made that great Alteration in Estates from what they were formerly, by Statute Westminster 2. cap. 1. whereby Estates of Fee-Simple, conditional at Common Law, were turn'd into Estates-Tail, not removable from the Issue by the ordinary Methods of Alienation; and upon this Statute, and for the Qualifications hereof, are the Superstructures built of 4 H. 7. cap. 32, 32 H. 8. and 33 H. 8.

Eleventhly, He introduced quite a new Method, both in the Laws of Wales, and in the Method of their Dispensation, by the Statute of Rutland.

Twelfthly, In brief, partly by the Learning and Experience of his Judges, and partly by his own wise Interposition, he silently and without Noise abrogated many ill and inconvenient Usages, both in his Courts of Justice, and in the Country. He rectified and set in Order the Method of collecting his Revenue in the Exchequer, and removed obsolete and illeviable Parts thereof out of Charge; and by the Statutes of Westminster 1. and Westminster 2. Gloucester and Westminster 3. and of Articuli super Chartas, he did remove almost all that was either grievous or impractical out of the Law, and the Course of its Administration, and substituted such apt, short, pithy, and effectual Remedies and Provisions, as by the Length of Time, and Experience had of their Convenience, have stood ever since without any great Alteration, and are now as it were incorporated into, and become a Part of the Common Law itself.

Upon the whole Matter, it appears, That the very Scheme, Mold and Model of the Common Law, especially in relation to the Administration of the Common Justice between Party and Party, as it was highly rectified and set in a much better Light and Order by this King than his Predecessors left it to him, so in a very great Measure it has continued the same in all succeeding Ages to this Day; so that the Mark or Epocha we are to take for the true Stating of the Law of England, what it is, is to be considered, stated and estimated from what it was when this King left it. Before his Time it was in a great Measure rude and unpolish'd, in comparison of what it was after his Reduction thereof; and on the other Side, as it was thus polished and ordered by him, so has it stood hitherto without any great or considerable Alteration, abating some few Additions and Alterations which succeeding Times have made, which for the most part are in the subject Matter of the Laws themselves, and not so much in the Rules, Methods, or ways of its Administration.

As I before observed some of those many great Accessions to the Perfection of the Law under this King, so I shall now observe some of those Boxes or Repositories where they may be found, which are of the following Kiuds, viz.

First, The Acts of Parliament in the Time of this King are full of excellent Wisdom and Perspicuity, yet Brevity; but of this, enough before is said.

Secondly, The Judicial Records in the Time of this King. I shall not mention those of the Chancery, the Close-Patent and Charter Rolls, which yet will very much evidence the Learning and Judgment of that Time; but I shall mention the Rolls of Judicial Proceedings, especially those in the King's-Bench and Common-Pleas, and in the Eyres. I have read over many of them, and do generally observe,

1. That they are written in an excellent Hand.

2. That the Pleading is very short, but very clear and perspicuous, and neither loose or uncertain, nor perplexing the Matter either with Impropriety, Obscurity, or Multiplicity of Words: They are clearly and orderly digested, effectually representing the Business that they intend.

3. That the Title and the Reason of the Law upon which they proceed (which many times is expresly delivered upon the Record itself) is perspicuous, clear and rational; so that their short and pithy Pleadings and judgments do far better render the Sense of the Business, and the Reasons thereof, than those long, intricate, perplexed, and formal Pleadings, that oftentimes of late are unnecessarily used.

Thirdly, The Reports of the Terms and Years of this King's Time, a few broken cases whereof are in Fitzherbert's Abridgment; but we have no successive Terms or Years thereof, but only ancient Manuscripts perchance, not running through the whole Time of this King, yet they are very good, but very brief: Either the Judges then spoke less, or the Reporters were not so ready handed as to take all they said. And hence this Brevity makes them the more obscure. But yet in those brief Interlocutions between the Judge and the Pleaders, and in their Definitions, there appears a great deal of Learning and Judgment. Some of those Reports, tho' broken, yet the best of their Kind, are in LincolnsInn Library.

Fourthly, The Tracts written or collected in the Time of this wise and excellent Prince, which seem to be of Two Kinds, viz. Such as were only the Tractates of private Men, and therefore had no greater Authority than private Collections, yet contain much of the Law then in Use, as Fleta the Mirror, Britton and Thornton; or else, 2dly, They were Sums or Abstracts of some particular Parts of the Law, as Novae Narrationes, Hengam Magna & Parva, Cadit assisa Summa, De Bastardia Summa; by all which, compared even with Bracton, there appears a Growth and a Perfecting of the Law into a greater Regularity and Order.

And thus much shall serve for the several Periods or Growth of the Common Law until the Time of Edw. I inclusively, wherein having been somewhat prolix, I shall be the briefer in what follows, especially feeling that from this Time downwards, the Books and Reports printed give a full Account of the ensuing Progress of the Law.


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