c. 3. Rex Vicecomiti salutem. Si G. filius T. fecerit te securum de clamore suo prosequendo, tunc summone per bonos summonitores duodecim liberos et legales homines de vicineto de illa villa, quod sint coram me vel justiciis meis ea die parati sacramento recognoscere1, si T. pater praedicti G. fuit seisitus in dominico suo sicut de feodo suo de una virgata terrae in illa villa die qua obiit; si obiit post primam coronationem meam, et si ille G. propinquior haeres ejus est, et interim terram illam videant, et nomina eorum imbreviari facias, et summone per bonos summonitores R. qui terram illam tenet, quod tunc sit ibi auditurus illam recognitionem. Et habeas ibi summonitores

etc.

c. 32. Postremo de illa recognitione quae appellatur de nova disseisina restat dicendum. Cum quis itaque infra assisam domini regis, id est infra tempus a domino rege de consilio procerum ad hoc constitutum 2, quod quandoque majus quandoque minus censetur, alium injuste et sine judicio disseisiverit de libero tenemento suo, disseisito hujus constitutionis beneficio subvenitur, et tale breve habebit :

c. 33. Rex Vicecomiti salutem. Questus est mihi N. quod R. injuste et sine judicio disseisivit eum de libero tenemento suo in illa villa, post ultimam transfretationem meam in Normaniam. Et ideo tibi praecipio quod si praefatus N. fecerit te securum de clamore suo prosequendo, tunc facias tenementum illud reseisiri de catallis quae in eo captae fuerunt, et ipsum cum catallis esse facias in pace usque ad clausum Paschae, et interim facias duodecim liberos et legales homines de vicineto videre terram illam et nomina eorum imbreviari facias: et summone illos per bonos summonitores quod tunc sint coram me vel justiciis meis parati inde facere recognitionem. Et pone per vadium et salvos plegios praedictum R. vel ballivum suum, si ipse non fuerit inventus, quod tunc sit ibi auditurus illam recognitionem.

c. 34. Brevia autem de nova disseisina diversis modis variantur secundum diversitatem tenementorum in quibus fuerint

1 The jury consist of neighbours who are assumed to know themselves or to have heard from others the true facts of the case and to be prepared to state them truly upon their oaths. The notion that the jury are to hear evidence and give the verdict in accordance with the evidence is of later growth.

2 See above, p. 96.

disseisinae. Si autem aut levetur fossatum aliquod aut prosternetur, aut si exaltetur stagnum alicujus molendini, infra assisam Domini Regis, ad nocumentum liberi tenementi alicujus, secundum haec brevia variantur in hunc modum.

c. 37. Praeterea si facta fuerit disseisina in communia pasturae 1 tunc breve tale erit. Rex Vicecomiti salutem: Questus est mihi N. quod R. injuste et sine judicio disseisivit eum de communi pastura sua in illa villa, quae pertinet ad liberum tenementum suum in eadem villa, vel in illa alia villa, post ultimam transfretationem meam in Normaniam. Et ideo tibi praecipio quod si praefatus N. fecerit te securum de clamore suo prosequendo tunc facias duodecim liberos etc. videre pasturam illam et tenementum et nomina eorum, etc.

1 As to common of pasture, see below, Chap. III. § 18 (2).

CHAPTER III.

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 1.

Law and Statute Law comes into prominence. We have 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 (1) 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 Carta2 at Westminster, or by the itinerant judges sent to hold pleas throughout the country, 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, and some improvements and modifications of

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

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 Glanvill. 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.

2 See instances below, and Finlason's note on Reeves' Hist. of English Law, i. p. 300.

3 The first publication was in 1811, under the name of Placitorum Abbreviatio. The collection edited by Sir F. Palgrave in 1835, and called Rotuli 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.