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