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

A Brief Continuation of the Progress of the Laws, from the Time of King Edward 2 inclusive, down to these Times

Having in the former Chapter been somewhat large in Discoursing of the Progress of the Laws, and the incidental Additions they received in the several Reigns of King William 2, King Hen. I, King Stephen, King Hen. 2, King Richard I, King John, King Hen. 3 and King Edw. I. I shall now proceed to give a brief Account of the Progress thereof in the Time of Edw. 2 and the succeeding Reigns, down to these Times.

Edward 2 succeeding his Father, tho' he was an unfortunate Prince, and by reason of the Troubles and Unevenness of his Reign, the very Law itself had many Interruptions, yet it held its Current in a great Measure according to that Frame and State that his Father had left it in.

Besides the Records of judicial Proceedings in his Time, many whereof are still extant, there were some other Things that occur'd in his Reign which gave us some kind of Indication of the State and Condition of the Law during that Reign: As,

First, The Statutes made in his Time and especially that of 17 E. 2. stiled De Prerogativa Regis, which tho' it be called a Statute, yet for the most part is but a Sum or Collection of certain of the King's Prerogatives that were known Law long before; as for Instance, The King's Wardship of Lands in Capite attracting the Wardship of Lands held of others; The King's Grant of a Manor not carrying an Advowson Appendant unless named; The King's Title to the Escheat of the Lands of the Normans, which was in Use from the first Defection of Normandy under King John; The King's Title to Wreck, Royal Fish, Treasure Trove and many others, which were ancient Prerogatives to the Crown.

Secondly, The Reports of the Years and Terms of this King's Reign; these are not printed in any one entire Volume, or in any Series or Order of Time, only some broken Cases thereof in Fitzherbert's Abridgment, and in some other Books dispersedly; yet there are many entire Copies thereof abroad very excellently reported, wherein are many Resolutions agreeing with those of Edw. 1st's Time. The best Copy of these Reports that I know now extant, is that in Lincoln's-Inn Library, which gives a fair Specimen of the Learning of the Pleaders and Judges of that Time.

King Edw. 3, succeeded his Father; his Reign was long, and under it the Law was improved to the greatest Height. The Judges and Pleaders were very learned: The Pleadings are somewhat more polished than those in the Time of Edw. I, yet they have neither Uncertainty, Prolixity, nor Obscurity. They were plain and skilful, and in the Rules of Law, especially in relation to Real Actions, and Titles of Inheritance, very learned and excellently polished, and exceeded those of the Time of Edw. I. So that at the latter End of this King's Reign the Law seemed to be near its Meridian.

The Reports of this King's Time run from the Beginning to the End of his Reign, excepting some few Years between the 10th and 17th, and 30th and 33d Years of his Reign; but those Omitted Years are extant in many Hands in old Manuscripts.

The Book of Assizes is a Collection of the Assizes that happened in the Time of Edw. 3, being from the Beginning to the End extracted out of the Books and Assizes of those that attended the Assizes in the Country.

The justices Itinerant continued by intermitting Vicissitudes till about the 4th of Edw. 3, and some till the 10th of Edw. 3. Their Jurisdiction extended to pleas of the Crown or Criminal Causes, Civil Suits and Pleas of Liberties, and Quo Warranto's; the Reports thereof are not printed, but are in many Hands in Manuscript, both of the Times of Edw. I, Edw. 2, and Edw. 3, full of excellent Learning. Some few broken Reports of those Eyres, especially of Cornwal, Nottingham, Northampton, and Derby, are collected by Fitzherbert in his Abridgment.

After the 10th of Edw. 3, I do not find any Justices Errant ad Communia Placita, but only ad Placita forestae; other Things that concerned those Justices Itinerant were supplied and transacted in the Common Bench for Communia Placita, in the King's-Bench and Exchequer for Placita de Libertatibus, and hefore Justices of Assize, Nisi Prius, Oyer and Terminer, and Gaol Delivery for Assizes and pleas of the Crown.

And thus much for the Law in the Time of Edw. 3.

Richard 2 succeeding his Grandfather, the Dignity of the Law, together with the Honour of the Kingdom, by reason of the Weakness of this Prince, and the Difficulties occurring in his Government, seem'd somewhat to decline, as may appear by comparing the Twelve last Years of Edw. 3, commonly called Quadragesms, with the Reports of King Richard 2, wherein appears a visible Declination of the Learning and Depth of the judges and Pleaders.

It is true, we have no printed continued Report of this King's Reign; but I have seen the entire Years and Terms thereof in a Manuscript, out of which, or some other Copy thereof, I suppose Fitzherbert abstracted those broken Cases of this Reign in his Abridgment.

In all those former Times, especially from the End of Edw. 3, back to the Beginning of Edw. I, the Learning of the Common Law consisted principally in Assizes and Real Actions; and rarely was any Title determined in any Personal Action, unless in Cases of Titles to Rents, or Services by Replevin; and the Reasons thereof were principally these, viz.

First, Because these ancient Times were great Favourers of the Possessor, and therefore if about the Time of Edw. 2, a Disseisor had been in Possession by a Year and a Day, he was not to be put out without a Recovery by Assize. Again, if the Disseisor had made a Feoffment, they did not countenance an Entry upon the Feoffee, because thereby he might lose his Warranty, which he might save if he were Impleaded in an Assize or Writ of Entry; and by this Means Real Actions were frequent, and also assizes.

Secondly, They were willing to quiet Men's Possessions, and therefore after a Recovery or Bar in an Assize or Real Action, the Party was driven to an Action of a higher Nature.

Thirdly, Because there was then no known Action wherein a Person could recover his Possession, other than by an Assize or a Real Action; for till the End of Edw. 4, the Possession was not recovered in an Ejectione firmae, but only Damages.

Fourthly, Because an Assize was a speedy and effectual Remedy to recover a Possession, the Jury being ready Impannell'd and at the Bar the first Day of the Return. And altho' by Disusage, the Practisers of Law are not so ready in it, yet the Course thereof in those Times was as ready and as well known to all Professors of the Law as the Course of Ejectione firmae is now.

Touching the Reports of the Years and Terms of Hen. 4, and Hen. 5, I can only say, They do not arrive either in the Nature of the Learning contained in them, or in the Judiciousness and Knowledge of the Judges and Pleaders, nor in any other Respect arise to the Perfection of the last Twelve Years of Edw. 3.

But the Times of Hen. 6,as also of Edw. 4, Edw. 5, and Hen. 7, were Times that abounded with Learning and excellent Men. There is little Odds in the Usefulness or Learning of these Books, only the first Part of Hen. 6, is more barren, spending itself much in Learning of little Moment, and now out of Use; but the second Part is full of excellent Learning.

In the Times of those Three Kings, Hen. 6, Edw. 4, and Hen. 7, the Learning seems to be much alike. But these Two Things are observable in them, and indeed generally in all Reports after the Time of Edw. 3. viz.

First, That Real Actions and Assizes were not so frequent as formerly, but many Titles of Land were determined in Personal Actions; and the Reasons hereof seem to be,

1st. Because the Learning of them began by little and little to be less known or understood.

2dly, The ancient Strictness of preserving Possession to Possessors till Eviction by Action, began not to be so much in Use, unless in Cases of Descents and Discontinuances, the latter necessarily drove the Demandant to his Formedon, or his Cui in Vita, &c. But the Descents that told Entry were rare, because Men preserved their Rights to enter, &c. by continual Claims.

3dly, Because the Statute of 8 H. 6. had helped Men to an Action to recover their Possessions by a Writ of Forcible Entry, even while the Method of Recovery of Possessions by Ejectments was not known or used.

The Second Thing observable is, That tho' Pleadings in the Times of those Kings were far shorter than afterwards, especially after Hen. 8, yet they were much longer than in the Time of King Edw. 3 and the Pleaders, yea and the Judges too, became somewhat too curious therein, so that that Art or Dexterity of Pleading, which in its Use, Nature and Design, was only to render the Fact plain and intelligible, and to bring the Matter to judgment with a convenient Certainty, began to degenerate from its primitive Simplicity, and the true Use and End thereof, and to become a Piece of Nicety and Curiosity; which how these later Times have improved, the Length of the Pleadings, the many and unnecessary Repetitions, the many Miscarriages of Causes upon small and trivial Niceties in Pleading, have too much witnessed.

I should now say something touching the Times since Hen. 7 to this Day, and therefore shall conclude this Chapter with some general observations touching the Proceedings of Law in these later Times.

And first, I shall begin where I left before, touching the Length and Nicety of Pleadings, which at this Day far exceeds not only that short yet perspicuous Course of Pleading which was in the Time of Hen. 6, Edw. 4, and Hen. 7, but those of all Times whatsoever, as our vast Presses of Parchment for any one Plea do abundantly witness.

And the Reasons thereof seem to be these, viz.

First, Because in ancient Times the Pleadings were drawn at the Bar, and the Exceptions (also) taken at the Bar, which were rarely taken for the Pleasure or Curiosity of the Pleader, but only when it was apparent that the Omission or the Matter excepted to was for the most part the very Merit and Life of the Cause, and purposely omitted or mispleaded because his Matter or Cause would bear no better: But now the Pleadings being first drawn in Writing, are drawn to an excessive Length, and with very much Labouriousness and Care enlar ged, lest it might afford an Exception not intended by the Pleader, and which could be easily supplied from the Truth of the Case; lest the other Party should catch that Advantage which commonly the adverse Party studies, not in Contemplation of the Merits or Justice of the Cause, but to find a slip to fasten upon, tho' in Truth, either not material to the Merits of the Plea, or at least not to the Merits of the Cause, if the Plea were in all Things conform to it.

Secondly, Because those Parts of Pleading which in ancient Times might perhaps be material, but at this Time are become only mere Styles and Forms, are still continued with much Religion, and so all those ancient Forms at first introduced for Convenience, but now not necessary, or it may be antiquated as to their Use, are yet continued as Things wonderfully material, tho' they only swell the Bulk, but contribute nothing to the Weight of the Plea.

Thirdly, These Pleas being mostly drawn by Clerks, who are paid for Entries and Copies thereof, the larger the Pleadings are, the more Profits come to them, and the dearer the Clerk's Place is, the dearer he makes the Client pay.

Fourthly, An Overforwardness in Courts to give Countenance to frivolous Exceptions, tho' they make nothing to the true Merits of the Cause; whereby it often happens that Causes are not determined according to their Merits, but do often miscarry for inconsiderable Omissions in Pleading.

But, Secondly, I shall consider what is the Reason that in the Time of Edw. I one Term contained not above two or three Hundred Rolls, but at this Day one Term contains two Thousand Rolls or more.

The Reasons whereof may be these, viz.

1st. Many petty Businesses, as Trespasses and Debts under 40s. are now brought to Westminster, which used to be dispatched in the County or Hundred Courts; and yet the Plaintiffs are not to be blamed, because at this Day those inferior Courts are so ill served, and Justice there so ill administred, that they were better seek it (where it may be had) at Westminster, tho' at somewhat more Expence.

2dly, Multitudes of Attorneys practising in the Great Courts at Westminster, who are ready at every Market to gratify the Spleen, Spite or Pride, of every Plaintiff.

3dly, A great Increase of People in this Kingdom above what they were anciently, which must needs multiply Suits.

4thly, A great Increase of Trade and Trading Persons, above what there were in ancient Times, which must have the like Effect.

5thly, Multitudes of new Laws, both Penal and others, all which breed new Questions, and new Suits at Law, and in particular, the Statute touching the devising of Lands, cum multis aliis.

6thly, Multiplication of Actions upon the Case, which were rare formerly, and thereby Wager of Law ousted, which discouraged many Suits: For when Men were sure, that in case they rested upon a bare Contract without Specialty, the other Party might wage his Law, they would not rest upon such Contracts without reducing the Debt into a Specialty, if it were of any Value, which created much Certainty, and accorded many Suits.

And herewith I shall conclude this Chapter, shewing what Progress the Law has made, from the Reign of King Edw. I down to these Times.


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