According to the analysis of Mr. Austin', which however is applicable only to a civilised community after it has attained to regular legislative and judicial institutions, positive law properly so called may be referred to two sources-direct legislation, and the action of the tribunals. In other words, laws are made either directly in the shape of general rules imposed by or under the authority of the supreme power in the community, or they are made indirectly by the tribunals in deciding upon particular cases. The latter class of laws are sometimes called judge-made, or judiciary laws. If Mr. Austin's view that judicial decisions are properly ranked as one of the sources or efficient causes of positive law be accepted, the following may suffice as an account of the mode in which they produce their effect. Inasmuch as the decision of a particular case in a civilised community depends upon some general rule, that is, rests on the assumption that a righteous judge would always give the same decision under the same circumstances, every decision either consists in the application of an actually pre-existing rule of law, or proceeds as if there had been such a rule, when in fact there was none. In the latter case the tribunal in effect makes a law for itself ex post facto. Add to this the tendency in every civilised community that one decision should become the precedent for another, in other words, that a rule once applied by a tribunal of competent authority should be acted upon by other tribunals in similar circumstances, and we have the account of what is called judicial legislation. Suppose, for instance, that there is no fixed rule whether, on the decease of a tenant in fee simple, his grandson (son of a predeceased elder son) or his 1 See Lectures xxviii, xxix, xxxvii. 2 Judicial decisions are usually spoken of in the text-books (see the chapter in Blackstone, vol. i, Of the Laws of England) not as the source of laws, but as evidence of a preexisting law. The examination of this view, which would at the present day have few theoretical supporters, though its practical influence is still considerable, would occupy too much space. The reader is therefore referred to the lectures of Mr. Austin mentioned above. younger son succeeds to the lands. The question arises for judicial decision. The tribunal decides (no matter on what ground, whether adopting a custom, or following some rule of some other system of law, or on considerations of general expediency,) that the grandson is entitled in preference to his uncle. This solemn decision by a competent tribunal is recorded, and becomes a precedent for other similar decisions. Thus a rule of law is created. It is impossible to say precisely at what point a rule thus acted upon by a tribunal becomes a rule of law. Sometimes a single decision is sufficient, sometimes it requires a series of similar decisions before it can be asserted that the principle forming the ground of the decision has been erected into a rule of law. The simplicity or complexity of the proposition, the weight and eminence of the tribunal, the circumstances attending the decision, all influence the conditions requisite for the establishment of the proposition as a rule of law. When however it is for all practical purposes certain that a definite rule, having been the ground of judicial decision on one or more occasions, will be again acted upon by the tribunals whenever occasion arises, the rule may be said to have become a rule of law. It may have existed previously as a rule of custom, or a rule of a foreign system of law, but its adoption by the tribunals gives it a new and different character, and causes it to take its place amongst the laws of the land. It is not necessary here to inquire whether this analysis of judiciary law is applicable in equal degree to all systems of law. It appears at all events to afford a sufficiently accurate description of the main process by which in our own country law customary has been transmuted into law positive. The early date at which this process began, and the rapid and effective mode in which the concentrated action of the courts was brought to bear so as to create a uniform body of law, may be traced in the extracts from Glanvill and Bracton given in this and the next chapter. As has been said above, positive law properly so called does not arise until a community has progressed sufficiently to have F 1 attained to settled legislative and judicial institutions. Accordingly in our own country we find the first existence of a body of law properly so called, as opposed to a floating mass of custom, contemporaneous with the completion of the political organisation. The reign of Henry II is the starting-point of the history of modern English law, as well as of the modern English constitution. Of the two sources of law above noticed, direct or proper legislation, and indirect or judicial legislation, the field of direct legislation, or of Statute Law, is as yet very limited. There are however various important legislative acts during this reign. But with the exception of the great changes made in the procedure of the tribunals, especially in the institution of the grand assize and recognitions1, they have little bearing on the law relating to land. It is to the organisation of the judicial institutions of the country that the rapid development of the Common Law2 relating to land which took place in the interval between the beginning of the reign of Henry II and the end of that of Henry III is owing. It has been seen, in the preceding chapter, that in the various manors the manor court had jurisdiction over 1 See extracts from Glanvill, below, §§ 2 and 9. 2 The expression Common Law will henceforward be frequently employed. It must be borne in mind that the expression is used (1) in opposition to Statute Law, (2) in opposition to Equity, (3) in opposition to Civil or Roman Law. The Common Law is (1) that portion of the present or former law of the land which does not rest on Statute; the judicial decisions of the Courts of Common Law, King's Bench, Common Pleas, Exchequer, are according to Blackstone the evidence, according to Austin the source, of the Common Law. (2) In its second sense, Common Law is that portion of the law which is administered in the Common Law tribunals, and thus is opposed to Equity, and to the law administered in the Ecclesiastical tribunals and their successors (the Courts of Probate and Divorce), and the Court of Admiralty. (3) When opposed to Civil or Roman Law, Common Law includes Equity. [I leave the above note without alteration, though its phraseology requires some modification if applied to the new constitution of the courts which came into force in November 1875, under the provisions of the Judicature Acts 1873 and 1875. Note to the Second Edition.] But supreme over all was questions arising within the manor. the King's Court (Curia Regis), which partook of the character of the supreme Court Baron, and was also the chief national legislative and judicial institution of the country'. The king, in his combined capacity of sovereign of the nation and lord paramount of all the land, asserted his right to adjudicate by himself or his representatives upon all questions relating to the freehold, and to control the local jurisdictions of the lords of the manors. The jurisdiction of the royal or central court was exercised partly at Westminster or elsewhere, where the king's court happened to be in attendance upon the king's person, partly by the organisation of judicial itinera or progresses by members of the Curia Regis for judicial and other purposes throughout the country3. Thus there came into existence regular judicial institutions with all their concomitants. The practice of recording decisions* given by men who became in fact professional judges, the discussion and sifting of points of law, the desire to attain to uniformity of legal rules throughout the country, are all characteristic of the time of Henry II. Amongst the causes of the rapid development of the Common Law as a system should be taken into account the powerful effect upon men's imagination of the Roman Law". There can be little question that acquaintance with a mature system of 1 As to the Curia Regis, its composition and relation to the Council, see Stubbs, Select Charters, p. 22; and for the formation of a regular Supreme Court of Justice by Henry II, see the extract from Benedictus Abbas (i. 207) in Stubbs, ib. p. 125, and see Const. Hist. i. pp. 598-604. 2 See the form of writ given below, § 2. 3 See, for an account of the history of these circuits, Stubbs, Select Charters, p. 134, and Const. Hist. i. p. 604. The Rotuli Curiae Regis, the earliest law reports at present printed, begin in the sixth year of the reign of Richard I. 5 In this country the growth of the study of the Roman Law is marked by the lectures of Vacarius in Oxford, A.D. 1149. the study of the Civil and Canon Law progressed rapidly, without at first coming into collision, as was afterwards the case, with the Common Law. foreign law must have greatly accelerated the process of simplifying and systematising floating custom, and of bringing the body of native customary law into some resemblance to a regular corpus juris. The direct effect of the Roman Law upon the law of England is not however very conspicuous till the reign of Henry III, when its influence appears in almost every line of Bracton's great treatise. The connexion of the growth of the Common Law with the development of judicial institutions is strikingly exemplified in the treatise of Glanvill, who was Chief Justiciar for the last nine years of this reign. The object of this work is the exposition of the practice of the King's Court. It deals principally with procedure or the mode of enforcing legal rights, but incidentally also with the rights themselves. In the county courts held before the sheriff, and in the courts of the lords of the manors, so great was the variety of the customs which were observed and enforced, that Glanvill declines to attempt any statement of them1. But in the reign of Henry II the principle had become firmly established that the king or his justices had cognizance of every suit relating to land. No plea relating to the freehold could be held unless the proceeding was commenced by writ or precept issuing from the king under the great seal. Directly or indirectly, means were provided for bringing the suit before the representatives of the king2, and thus the authority of the royal court was felt throughout the length and breadth of the land; the rules which the Curia Regis observed became the general law of the land. In some localities customs still prevailed which were sufficiently strong to be adopted as local laws. Thus in Kent, in many boroughs, notably in London and York, local customs obtained the force of laws which differed in some respects, especially as to the mode of devolution of lands ab intestato and power of disposition by will, from the general law |