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CHAPTER TIL

STATE OF THE LAW FROM THE END OF THE
REIGN OF HENRY II TO THE END OF
THE REIGN OF HENRY III.

In the period treated of in this Chapter we find the law of England falls into two great divisions, in respect of the modes in which it originates, namely, Statute Law, or law resting on express legislative enactment, and Common Law, or that portion of the law of the country which does not rest on express legislative enactment.

The Statute Book commences with Magna Carta, or rather with the third reissue in the ninth year of Henry III of the Charter granted by John. Although the later constitution of the legislature was not yet developed, Magna Carta and the other statutes of the reign of Henry III are of equal authority with any Act passed by Parliament after its full constitution was completed.

The field of Statute Law is at first confined and narrow. It chiefly consists in an authoritative declaration of rules which had previously existed as rules of law or custom, together with an amendment of them in some particulars. Of this character mainly are the enactments affecting private law1 contained in Magna Carta.

With the rise of Statute Law the opposition between Common

1 For the distinction between private and public law see Appendix to Part I, Table I.

Law and Statute Law comes into prominence. We Lave not yet arrived at the time when the opposition between Common Law and Equity has begun. This double opposition has given an ambiguity to the expression 'Common Law.' As opposed to Statute Law, Common Law simply means law which is independent of legislative enactment: that is to say, a rule of Common Law is either a rule as it stood before some definite change was wrought in it by statute, or a rule of existing law recognised and acted upon by the courts but not resting on any statute1. It is plain that the great bulk of the rules of law prevailing at the period in question consisted of rules of Common Law. The sources of our knowledge of the Common Law from this time forward consist of (i) judicial records, including the forms of the writs by which actions were commenced, and reports of decisions; (2) authoritative text-books.

(1) Judicial records. Now that the jurisdiction of the royal Court in suits relating to the freehold was thoroughly established, and was exercised either by the Court fixed since Magna Carta 2 at Westminster, or by the itinerant judges sent to hold pleas throughout the country3, a practice had arisen of keeping accessible records of the various cases brought before the superior tribunals. These records usually contain an abstract of the writ, or formal statement of the cause of action, which issued out of the Chancery under the king's seal. Some specimens of these writs preserved by Glanvill have been already given. As a rule they followed certain stereotyped forms, the judges refused to admit the validity of writs for which no precedent could be found. We find instances of new writs being introduced by the authority of the legislature 4, and some improvements and modifications of

1 For the meanings of Common Law see above, p. 66, note 2.

* c. 17. Stubbs, Select Charters, p. 291. 3 See above, p. 67.

* See the new writ given by the authority of the Council for the protection of the leaseholder, below, §17, and the forms of writs provided by the Statute de Donis, below, Chap. IV. § 3.

the old forms of action doubtless from time to time obtained recognition. By the Statute of Westminster II an attempt was made to extend the power of framing new writs1; this however was long confined within narrow limits, and did not produce the intended result of providing a legal remedy wherever experience had shown a real need of one. Strictly speaking, therefore, writs considered as a source of the Common Law may be referred either to Statute Law or to Judiciary Law, inasmuch as they derived their validity either from some express provision of the legislature, or from the fact of their recognition by the tribunals.

The decisions of the tribunals therefore now become the most important of the sources of law. Formal records are kept and studied, and a decision of a judge, especially if he be a man of weight, is treated as a precedent and followed in a similar case by another. Thus we constantly find in Bracton judicial decisions quoted as authorities for particular propositions2. Traces of the same practice are found in Grlanvill. Records of cases adjudicated upon from the time of Richard I are in existence, and have been published amongst the documents issued by the Record Commission3. From this time forward the recorded decisions of the regular tribunals are looked to as authoritative statements of the law. And as from time to time new cases arise, calling for a new rule or a deduction from an old rule for which there is no precedent, the decisions of the tribunals come to constitute in the strictest sense of the term a source or cause of law. Judge-made or judiciary law* henceforth gradually displaces customary law.

1 See the material part of this enactment given below, Chap. VI. a See instances below, and Pinlason's note on Reeves' Hist, of English Law, i. p. 300.

8 The first publication was in 1811, under the name of Placitorum Abbreviatio. The collection edited by Sir P. Palgrave in 1835, and called Botuli Curiae Regis, is more copious, and begins in the sixth year of Richard I.

* For the characteristics of judiciary law see Austin on Jurisprudence, lect. xxxvii.

(2) Authoritative text-boohs. Already in the time of Henry II the law had attained such a degree of uniformity throughout the country that a hook was published with some claims to be called a systematic treatise on the law. Glanvill however rather presupposes the existence of a body of law than gives a complete exposition of it. It is a treatise rather on procedure than on the principles and rules of law which that procedure enforces. After Glanvill's time the elaboration of the law as a system proceeded with rapid strides. In the reign of Henry III the treatise of Henricus de Bracton was published1. It purports to be a systematic exposition of the whole of English law, designed for the use of students and of judges. A great portion of the matter of the work is based on the sources of Roman law, or on the works of commentators2. There can be little doubt that at the time at which Bracton wrote a large amount of Roman law had been imported into the English system chiefly through the medium of clerical judges3. The jealousy so prevalent in later times between the common lawyers and the civilians had not yet arisen, and the newly appreciated treasures of the Roman law were doubtless frequently resorted to to supply both matter and form for the decisions of an English judge4. Thus in incorporating a large portion of Roman law Bracton followed what was probably the prevailing tendency of the time. His work bears throughout traces of the influence of Roman law. Sometimes he inserts (not always appropriately) passages of the

1 Little is known of Bracton's life. He appears from entries in the Placitorum Abbreviatio to have served as an itinerant justice in Devonshire in 1246, 1252, and 1255. He is also said to have been a clerk, and there is a tradition that he was Archdeacon of Barnstaple. See Foss, Judges of England, ii. p. 251.

2 Especially Azo. See a short treatise, 'Henricus de Bracton und sein Verhaltniss zum Rbmischen Rechte,' by Dr. Carl Giiterbock, Berlin, 1862, translated by Brinton Coxe, Philadelphia, 1866.

s Amongst the judges mentioned by Bracton are Martinus de Pateshull, Dean of St. Paul's; W. Ralegh, clericus; the Abbot of Reading; and the Bishops of Durham, Chester, and Carlisle. Giiterbock, p. 37,

1 See Giiterbock, p. 37.

Institutes, Digest, or Code of Justinian; more often the form of the passage is slightly altered, but the substance remains. In arrangement and in phraseology, in casual words and turns of_expressiQn, the debt to the Roman lawyers is everywhere apparent. This is however less conspicuous in the extracts given below, relating to the law of land, than in most of the remainder of his work. The very different juristic conceptions prevailing in this branch of the law, which were due to feudalism, did not admit of any thorough application of the rules of Roman law. Many instances however will be found in the following extracts from Bracton of the application to English law of conceptions and terms borrowed from the Roman.

SECTION I.

ExTEACTS FBOM STATUTES.
Magna Carta.

The edition of Magna Carta with which most editions of the Statutes commence is that issued in the ninth year of Henry III, A.d. 1225. The Charter was first issued by John in 1215: it was reissued in the first year of Henry III, 1216; again in 1217; and again in 1225. There are variations, in some cases of some importance, between the different editions. The following extracts contain the principal provisions of the Charter bearing upon the private law of land. It will be seen that the statute law of the reigns of John, Henry III, and Edward I is characterised throughout by marks of the influence of the great lords (domini capitales). It was the interest of these great tenants in capite at once to restrict the oppressive rights of the Crown (and to that extent no doubt the inferior tenants participated in the benefit of the legislation), and also to protect and enhance the rights of lords of manors as against their tenants.

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