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