Part 640

"Our ancestors, instead of fixing a given number of years as the period within which legal proceedings to recover real property must be resorted to, had recourse to the singular expedient of making the period of limitation run from particular events or dates. From the time of Henry I. to that of Henry III., on a writ of right, the time within which a descent must be shown was the time of King Henry I. (Co. Litt. 114b). In the twentieth year of Henry III., by the Statute of Merton (c. 8) the date was altered to the time of Henry II. Writs of 'mort d'ancestor' were limited to the time of the last return of King John into England; writs of novel disseisin to the time of the king's first crossing the sea into Gascony. In the previous reign, according to Glanville (lib. 13, c. 33), the disseisin must have been since the last voyage of King Henry II. into Normandy. So that the time necessary to bar a claim varied materially at different epochs. Thus matters remained until the 3 Edw. I. (Stat. West. 1, c. 39), when, as all lawyers are aware, the time within which a writ of right might be brought was limited to cases in which the seisin of the ancestor was since the time of King Richard I., which was construed to mean the beginning of that king's reign (2 Inst. 238), a period of not less than eighty-six years. The legislature having thus adopted the reign of Richard I. as the date from which the limitation in a real action was to run, the courts of law adopted it as the period to which, in all matters of prescription or custom, legal memory, which till then had been confined to the time to which living memory could go back, should thenceforth be required to extend. Thus the law remained for two centuries and a half, by which time the limitation imposed in respect of actions to recover real property having long become inoperative to bar claims which had their origin posterior to the time of Richard I., and having therefore ceased practically to afford any protection against antiquated claims, the legislature, in 32d of Henry VIII. (c. 2), again interfered, and on this occasion, instead of dating the period of limitation from some particular event or date, took the wiser course of prescribing a fixed number of years as the limit within which a suit should be entertained. … {1958} It was of course impossible that as time went on the adoption of a fixed epoch, as the time from which legal memory was to run, should not be attended by grievous inconvenience and hardship. Possession, however long, enjoyment, however interrupted, afforded no protection against stale and obsolete claims, or the assertion of long abandoned rights. And as parliament failed to intervene to amend the law, the judges set their ingenuity to work, by fictions and presumptions, to atone for the supineness of the legislature. … They first laid down the somewhat startling rule that from the usage of a lifetime the presumption arose that a similar usage had existed from a remote antiquity. Next, as it could not but happen that, in the case of many private rights, especially in that of easements, which had a more recent origin, such a presumption was impossible, judicial astuteness to support possession and enjoyment, which the law ought to have invested with the character of rights, had recourse to the questionable theory of lost grants. Juries were first told that from user, during living memory, or even during twenty years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor anyone else, had the shadow of a belief that any such instrument had ever really existed. … When the doctrine of presumptions had proceeded far towards its development, the legislature at length interfered, and in respect of real property and of certain specified easements, fixed certain periods of possession or enjoyment as establishing presumptive rights."

_C. J. Cockburn, in Bryant v. Foot, L. R. 2 Q. B., 161; s. c. (Thayer's Cases on Evidence, 94)._

COMMON LAW: A. D. 1110 (circa). The King's Peace superior to the Peace of the Subject.

"We find in the so-called laws of Henry I, that wherever men meet for drinking, selling, or like occasions, the peace of God and of the lord of the house is to be declared between them. The amount payable to the host is only one shilling, the king taking twelve, and the injured party, in case of insult, six. Thus the king is already concerned, and more concerned than anyone else; but the private right of the householder is distinctly though not largely acknowledged. We have the same feeling well marked in our modern law by the adage that every man's house is his castle, and the rule that forcible entry may not be made for the execution of ordinary civil process against the occupier: though for contempt of Court arising in a civil cause, it may, as not long ago the Sheriff of Kent had to learn in a sufficiently curious form. The theoretical stringency of our law of trespass goes back, probably, to the same origin. And in a quite recent American textbook we read, on the authority of several modern cases in various States of the Union, that 'a man assaulted in his dwelling is not obliged to retreat, but may defend his possession to the last extremity.'"

_F. Pollock, The King's Peace (Law Quarterly Review, volume 1, pages 40-41)._

COMMON LAW: A. D. 1135. Abeyance of the King's Peace.

"The King's Peace is proclaimed in general terms at his accession. But, though generalized in its application, it still was subject to a strange and inconvenient limit in time. The fiction that the king is everywhere present, though not formulated, was tacitly adopted; the protection once confined to his household was extended to the whole kingdom. The fiction that the king never dies was yet to come. It was not the peace of the Crown, an authority having continuous and perpetual succession, that was proclaimed, but the peace of William or Henry. When William or Henry died, all authorities derived from him were determined or suspended; and among other consequences, his peace died with him. What this abeyance of the King's Peace practically meant is best told in the words of the Chronicle, which says upon the death of Henry I. (anno 1135): 'Then there was tribulation soon in the land, for every man that could forthwith robbed another.' Order was taken in this matter (as our English fashion is) only when the inconvenience became flagrant in a particular case. At the time of Henry III.'s death his son Edward was in Palestine. It was intolerable that there should be no way of enforcing the King's Peace till the king had come back to be crowned; and the great men of the realm, by a wise audacity, took upon them to issue a proclamation of the peace in the new king's name forthwith. This good precedent being once made, the doctrine of the King's Peace being in suspense was never afterwards heard of."

_F. Pollock, The King's Peace (Law Quarterly Review, volume 1, pages 48-49)._

COMMON LAW: A. D. 1154-1189. Origin of Unanimity of Jury.

"The origin of the rule as to unanimity may, I think, be explained as follows: In the assise as instituted in the reign of Henry II. it was necessary that twelve jurors should agree in order to determine the question of disseisin; but this unanimity was not then secured by any process which tended to make the agreement compulsory. The mode adopted was called, indeed, an afforcement of the jury; but this term did not imply that any violence was done to the conscientious opinions of the minority. It merely meant that a sufficient number were to be added to the panel until twelve were at last found to agree in the same conclusion; and this became the verdict of the assise. … The civil law required two witnesses at least, and in some cases a greater number, to establish a fact in dispute; as, for instance, where a debt was secured by a written instrument, five witnesses were necessary to prove payment. These would have been called by our ancestors a jurata of five. At the present day, with us no will is valid which is not attested by at least two witnesses. In all countries the policy of the law determines what it will accept as the minimum of proof. Bearing then in mind that the jury system was in its inception nothing but the testimony of witnesses informing the court of facts supposed to lie within their own knowledge, we see at once that to require that twelve men should be unanimous was simply to fix the amount of evidence which the law deemed to be conclusive of a matter in dispute."

_W. Forsyth, History of Trial by Jury, chapter 11, section 1._

{1959}

A. D. 1154-1189. Reign of Law initiated.

"The reign of Henry II. initiates the rule of law. The administrative machinery, which had been regulated by routine under Henry I., is now made a part of the constitution, enunciated in laws, and perfected by a steady series of reforms: The mind of Henry II. was that of a lawyer and man of business. He set to work from the very beginning of the reign to place order on a permanent basis, and, recurring to the men and measures of his grandfather, to complete an organization which should make a return to feudalism impossible."

_W. Stubbs, Select Charters of English Constitutional History, page 21._

COMMON LAW: A. D. 1164-1176. Trial by Assize.

"The first mention of the trial by assise in our existing statutes occurs in the Constitutions of Clarendon, A. D. 1164 [see ENGLAND: A. D. 1162-1170], where it was provided that if any dispute arose between a layman and a clerk as to whether a particular tenement was the property of the Church or belonged to a lay fief, this was to be determined before the chief justiciary of the kingdom, by the verdict of twelve lawful men. … This was followed by the Statute of Northampton, A. D. 1176, which directs the justices, in case a lord should refuse to give to the heir the seisin of his deceased ancestor, 'to cause a recognition to be made by means of twelve lawful men as to what seisin the deceased had on the day of his death;' and also orders them to inquire in the same manner in cases of novel disseisin."

_W. Forsyth, Trial by Jury, chapter 6, section 3._

COMMON LAW: A. D. 1165 (circa). Justice bought and sold.

"The king's justice was one great source of his revenue, and he sold it very dear. Observe that this buying and selling was not in itself corruption, though it is hard to believe that corruption did not get mixed up with it. Suitors paid heavily not to have causes decided in their favour in the king's court, but to have them heard there at all. The king's justice was not a matter of right, but of exceptional favour; and this was especially the case when he undertook, as he sometimes did, to review and overrule the actual decisions of local courts, or even reverse, on better information, his own previous commands. And not only was the king's writ sold, but it was sold at arbitrary and varying prices, the only explanation of which appears to be that in every case the king's officers took as much as they could get. Now we are in a position to understand that famous clause of the Great Charter: 'To no man will we sell, nor to none deny or delay, right or justice.' The Great Charter comes about half a century after the time of which we have been speaking; so in that time, you see, the great advance had been made of regarding the king's justice as a matter not of favour but of right. And besides this clause there is another which provides for the regular sending of the king's judges into the counties. Thus we may date from Magna Carta the regular administration of a uniform system of law throughout England. What is more, we may almost say that Magna Carta gave England a capital. For the king's court had till then no fixed seat; it would be now at Oxford, now at Westminster, now at Winchester, sometimes at places which by this time are quite obscure. But the Charter provided that causes between subject and subject which had to be tried by the king's judges should be tried not where the king's court happened to be, but in some certain place; and so the principal seat of the courts of justice, and ultimately the political capital of the realm, became established at Westminster."

_Sir F. Pollock, Essays in Jurisprudence and Ethics, page 209._

COMMON LAW: A. D. 1166. Assize of Clarendon.

See ENGLAND: A. D. 1162-1170.

COMMON LAW: A. D. 1176. Justices in Eyre.

"It has been generally supposed that justices in Eyre (justitiarii itinerantes) were first established in 1176, by Henry II., for we find it recorded that in that year, in a great counsel held at Northampton, the king divided the realm into six parts, and appointed three traveling justices to go each circuit, so that the number was eighteen in all. … But although the formal division of the kingdom into separate circuits may have been first made by Henry II., yet there is no doubt that single justiciars were appointed by William I., a few years after the Conquest, who visited the different shires to administer justice in the king's name, and thus represented the curia regis as distinct from the hundred and county courts."

_W. Forsyth, Trial by Jury, pages 81-82._

COMMON LAW: A. D. 1189. Legal Memory. Its effect.

"No doubt usage for the last fifty or sixty years would be some evidence of usage 700 years ago, but if the question is to be considered as an ordinary question of fact, I certainly for one would very seldom find a verdict in support of the right as in fact so ancient. I can hardly believe, for instance, that the same fees in courts of justice which were till recently received by the officers as ancient fees attached to their ancient offices were in fact received 700 years ago; or that the city of London took before the time of Richard I. the same payments for measuring corn and coals and oysters that they do now. I have no doubt the city of Bristol did levy dues in the Avon before the time of legal memory, and that the mayor, as head of that corporation, got some fees at that time; but I can hardly bring myself to believe that the mayor of Bristol at that time received 5s. a year from every ship above sixty tons burthen which entered the Avon; yet the claim of the city of Bristol to their ancient mayor's dues, of which this is one, was established before Lord Tenterden, in 1828. I think the only way in which verdicts in support of such claims, and there are many such, could have properly been found, is by supposing that the jury were advised that, in favor of the long continued user, a presumption arose that it was legal, on which they ought to find that the user was immemorial, if that was necessary to legalize it, unless the contrary was proved; that presumption not being one purely of fact, and to be acted on only when the jury really entertained the opinion that in fact the legal origin existed. This was stated by Parke B., on the first trial of Jenkins v. Harvey, 1 C. M. & R. 894, as being his practice, and what he considered the correct mode of leaving the question to the jury; and that was the view of the majority of the judges in the Court of Exchequer Chamber in Shephard v. Payne, 16 C. B. (N. S.) 132; 33 L. J. (C. P.) 158. This is by no means a modern doctrine; it is as ancient as the time of Littleton, who, in his Tenures, § 170, says that all are agreed that usage since the time of Richard I. is a title; some, he says, have thought it the only title of prescription, but that others have said 'that there is also another title of prescription that was at the common law before any statute of limitation of writs, &c., and that it was where a custom or usage or other thing hath been used for time whereof mind of man runneth not to the contrary. {1960} And they have said that this is proved by the pleading where a man will plead a title of prescription of custom. He shall say that such a custom hath been used from time whereof the memory of men runneth not to the contrary, that is as much as to say, when such a matter is pleaded, that no man then alive hath heard any proof of the contrary, nor hath no knowledge to the contrary; and insomuch that such title of prescription was at the common law, and not put out by any statute, ergo, it abideth as it was at the common law; and the rather that the said limitation of a writ of right is of so long time past. 'Ideo quaere de hoc.' It is practically the same thing whether we say that usage as far back as proof extends is a title, though it does not go so far back as the year 1189; or that such usage is to be taken in the absence of proof to the contrary to establish that the usage began before that year; and certainly the lapse of 400 years since Littleton wrote has added force to the remark, 'the rather that the limitation of a writ of right is of so long time past.' But either way, proof that the origin of the usage was since that date, puts an end to the title by prescription; and the question comes round to be whether the amount of the fee, viz. 13s., is by itself sufficient proof that it must have originated since."

_J. Blackburn, in Bryant v. Foot, L. R. 2 Q. B., 161,. s. c. (Thayer's Cases on Evidence, page 88)._

COMMON LAW: A. D. 1194. English Law Repositories.

"The extant English judicial records do not begin until 1194 (Mich. 6 Rich. I.). We have a series of such records from 1384 (6 Rich. II.). The first law treatise by Glanvill was not written before 1187. The law reports begin in 1292. The knowledge of the laws of England prior to the twelfth century is in many points obscure and uncertain. From that time, however, the growth and development of these laws can be traced in the parliamentary and official records, treatises, and law reports."

_John F. Dillon, The Laws and Jurisprudence of England and America, pages 28-29._

COMMON LAW: A. D. 1199. Earliest instance of Action for Trespass.

"A case of the year 1199 (2 Rot. Cur. Reg. 34) seems to be the earliest reported instance of an action of trespass in the royal courts. Only a few cases are recorded during the next fifty years. But about 1250 the action came suddenly into great popularity. In the 'Abbreviatio Placitorum,' twenty-five cases are given of the single year 1252-1253. We may infer that the writ, which had before been granted as a special favor, became at that time a writ of course. In Britton (f. 49), pleaders are advised to sue in trespass rather than by appeal, in order to avoid 'la perilouse aventure de batayles.' Trespass in the popular courts of the hundred and county was doubtless of far greater antiquity than the same action in the Curia Regis. Several cases of the reign of Henry I, are collected in Bigelow, Placita Anglo-Normannica, 89, 98, 102, 127."

_J. B. Ames, The Disseisin of Chattels (Harvard Law Review, volume 3, page 29, note)._

COMMON LAW: A. D. 1208. Evidence: Attesting Witnesses.

"From the beginning of our records, we find cases, in a dispute over the genuineness of a deed, where the jury are combined with the witnesses to the deed. This goes back to the Franks; and their custom of requiring the witness to a document to defend it by battle also crossed the channel, and is found in Glanville (lib. X., c. 12). … In these cases the jury and the witnesses named in the deed were summoned together, and all went out and conferred privately as if composing one body; the witnesses did not regularly testify in open court. Cases of this kind are found very early, e. g. in 1208-1209 (Pl. Ab. 63, col. 1, Berk.). … In the earlier cases these witnesses appear, sometimes, to have been conceived of as a constituent part of the jury; it was a combination of business-witnesses and community-witnesses who tried the case,—the former supplying to the others their more exact information, just as the hundreders, or those from another county, did in the cases before noticed. But in time the jury and the witnesses came to be sharply discriminated. Two or three cases in the reign of Edward III. show this. In 1337, 1338 and 1349, we are told that they are charged differently; the charge to the jury is to tell the truth (a lour ascient) to the best of their knowledge, while that to the witnesses is to tell the truth and loyally inform the inquest, without saying anything about their knowledge (sans lour scient); 'for the witnesses,' says Thorpe, C. J., in 1349, 'should say nothing but what they know as certain, i. e., what they see and hear.' … By the Statute of York (12 Edw. II. c. 2), in 1318, it was provided that while process should still issue to the witnesses as before, yet the taking of the inquest should not be delayed by their absence. In this shape the matter ran on for a century or two. By 1472 (Y. B. 12 Edw. IV. 4, 9), we find a change. It is said, with the assent of all the judges, that process for the witnesses will not issue unless asked for. As late, certainly, as 1489 (Y. B. 5 H. VII. 8), we find witnesses to deeds still summoned with the jury. I know of no later case. In 1549-1550 Brooke, afterwards Chief Justice of the Common Bench, argues as if this practice was still known: 'When the witnesses … are joined to the inquest,' etc.; and I do not observe anything in his Abridgment, published in 1568, ten years after his death, to indicate that it was not a recognized part of the law during all his time. It may, however, well have been long obsolescent. Coke (Inst. 6 b.) says of it, early in the seventeenth century, 'and such process against witnesses is vanished;' but when or how he does not say. We may reasonably surmise, if it did not become infrequent as the practice grew, in the fifteenth century, of calling witnesses to testify to the jury in open court, that, at any rate, it must have soon disappeared when that practice came to be attended with the right, recognized, if not first granted, in the statute of 1562-1563 (5 Eliz. c. 9, s. 6), to have legal process against all sorts of witnesses."

_James B. Thayer, in Harvard Law Review, volume 5, pages 302-5, also in Sel. Cas. Ev. pages 771-773._

"After the period reached in the passage above quoted, the old strictness as to the summoning of attesting witnesses still continued under the new system. As the history of the matter was forgotten, new reasons were invented, and the rule was extended to all sorts of writings."

_J. B. Thayer, Select Cases on Evidence, page 773._

{1961}

COMMON LAW: A. D. 1215 (ante). Courts following the King.