Part 641

"Another point which ought not to be forgotten in relation to the King's Court is its migratory character. The early kings of England were the greatest landowners in the country, and besides their landed estates they had rights over nearly every important town in England, which could be exercised only on the spot. They were continually travelling about from place to place, either to consume in kind part of their revenues, or to hunt or to fight. Wherever they went the great officers of their court, and in particular the chancellor with his clerks, and the various justices had to follow them. The pleas, so the phrase went, 'followed the person of the king,' and the machinery of justice went with them."

_Sir J. F. Stephen, History of the Criminal Law of England, volume 1, page 87._

COMMON LAW: A. D. 1215. Magna Charta.

"With regard to the administration of justice, besides prohibiting all denials or delays of it, it fixed the court of Common Pleas at Westminster, that the suitors might no longer be harassed with following the King's person in all his progresses; and at the same time brought the trial of issues borne to the very doors of the freeholders by directing assizes to be taken in the proper counties, and establishing annual circuits. It also corrected some abuses then incident to the trials by wager of law and of battle; directing the regular awarding of inquest for life or member; prohibited the King's inferior ministers from holding pleas of the crown, or trying any criminal charge, whereby many forfeitures might otherwise have unjustly accrued to the exchequer: and regulated the time and place of holding the inferior tribunals of justice, the county court, sheriff's tourn, and court leet. … And, lastly (which alone would have merited the title that it bears, of the great charter,) it protected every individual of the nation in the free enjoyment of his life, his liberty and his property, unless declared to be forfeited by the judgment of his peers, or the law of the land."

_Owen Flintoff, Laws of England, page 184._

See, also, ENGLAND: A. D. 1215.

COMMON LAW: A. D. 1216. Distinction between Common and Statute Law now begins.

"The Chancellors, during this reign [John 1199-1216], did nothing to be entitled to the gratitude of posterity, and were not unworthy of the master whom they served. The guardians of law were the feudal barons, assisted by some enlightened churchmen, and by their efforts the doctrine of resistance to lawless tyranny was fully established in England, and the rights of all classes of the people were defined and consolidated. We here reach a remarkable era in our constitutional history: National councils had met from the most remote times; but to the end of this reign their acts not being preserved are supposed to form a part of the lex non scripta, or common law. Now begins the distinction between common and statute law, and henceforth we can distinctly trace the changes which our juridical system has undergone. These changes were generally introduced by the Chancellor for the time being."

_Lord Campbell, Lives of the Chancellors, volume 1, page 115._

COMMON LAW: A. D. 1216-1272. Henry de Bracton.

"It is curious that, in the most disturbed period of this turbulent reign, when ignorance seemed to be thickening and the human intellect to decline, there was written and given to the world the best treatise upon law of which England could boast, till the publication of Blackstone's Commentaries, in the middle of the eighteenth century. It would have been very gratifying to me if this work could have been ascribed with certainty to any of the Chancellors whose lives have been noticed. The author, usually styled Henry de Bracton, has gone by the name of Brycton, Britton, Briton, Breton, and Brets; and some have doubted whether all these names are not imaginary. From the elegance of his style, and the familiar knowledge he displays of the Roman law, I cannot doubt that he was an ecclesiastic who had addicted himself to the study of jurisprudence; and as he was likely to gain advancement from his extraordinary proficiency, he may have been one of those whom I have commemorated, although I must confess that he rather speaks the language likely to come from a disappointed practitioner rather than of a Chancellor who had been himself in the habit of making Judges. For comprehensiveness, for lucid arrangement, for logical precision, this author was unrivalled during many ages. Littleton's work on Tenures, which illustrated the reign of Edward IV., approaches Bracton; but how barbarous are, in comparison, the commentaries of Lord Coke, and the law treatises of Hale and of Hawkins!"

_Lord Campbell, Lives of the Chancellors, volume 1, page 139._

For opposite view

_See 9 American Bar Association Report, p. 193._

COMMON LAW: A. D. 1217. Dower.

"The additional provision made in the edition of 1217 to the provisions of the earlier issues of the Charter in respect of widow's rights fixed the law of dower on the basis on which it still rests. The general rule of law still is that the widow is entitled for her life to a third part of the lands of which her husband was seized for an estate of inheritance at any time during the marriage. At the present day there are means provided which are almost universally adopted, of barring or defeating the widow's claim. The general rule of law, however, remains the same. The history of the law of dower deserves a short notice, which may conveniently find a place here. It seems to be in outline as follows. Tacitus noticed the contrast of Teutonic custom and Roman law, in that it was not the wife who conferred a dowry on the husband, but the husband on the wife. By early Teutonic custom, besides the bride-price, or price paid by the intending husband to the family of the bride, it seems to have been usual for the husband to make gifts of lands or chattels to the bride herself. These appear to have taken two forms. In some cases the husband or his father executed before marriage an instrument called 'libellum dotis,' specifying the nature and extent of the property to be given to the wife. … Another and apparently among the Anglo-Saxons a commoner form of dower is the 'morning gift.' This was the gift which on the morning following the wedding the husband gave to the wife, and might consist either of land or chattels. … By the law as stated by Glanvil the man was bound to endow the woman 'tempore desponsationis ad ostium ecclesiae.' The dower might be specified or not. If not specified it was the third part of the freehold which the husband possessed at the time of betrothal. If more than a third part was named, the dower was after the husband's death cut down to a third. A gift of less would however be a satisfaction of dower. It was sometimes permitted to increase the dower when the freehold available at the time of betrothal was small, by giving the wife a third part or less of subsequent acquisitions. This however must have been expressly granted at the time of betrothal. {1962} A woman could never claim more than had been granted 'ad ostium ecclesiae.' Dower too might be granted to a woman out of chattels personal, and in this case she would be entitled to a third part. In process of time however, this species of dower ceased to be regarded as legal, and was expressly denied to be law in the time of Henry IV. A trace of it still remains in the expression in the marriage service, 'with all my worldly goods I thee endow.'"

_Kenelm E. Digby, History of the Law of Real Property, pages 126-128 (4th edition)._

COMMON LAW: A. D. 1258. Provisions of Oxford; no Writs except de Cursu.

"The writ had originally no connection whatever with the relief sought, it had been a general direction to do right to the plaintiff, or as the case might be, but, long before the time now referred to, this had been changed. … It appears that even after the writ obtained by the plaintiff had come to be connected with the remedy sought for, … a writ to suit each case was framed and issued, but the Provisions of Oxford (1258) expressly forbade the Chancellor to frame new writs without the consent of the King and his Council. It followed that there were certain writs, each applicable to a particular state of circumstances and leading to a particular judgment, which could be purchased by an intending plaintiff. These writs were described as writs 'de cursu,' and additions to their number were made from time to time by direction of the King, of his Council or of Parliament."

_D. M. Kerly, History of Equity, page 9._

COMMON LAW: A. D. 1258. Sale of Judicial Offices.

"The Norman Kings, who were ingenious adepts in realizing profit in every opportunity, commenced the sale of Judicial Offices. The Plantagenets followed their example. In Madox, chap. II., and in the 'Cottoni Posthuma, may be found innumerable instances of the purchase of the Chancellorship, and accurate details of the amount of the consideration monies. … What was bought must, of course, be sold, and justice became henceforth a marketable commodity. … The Courts of Law became a huckster's shop; every sort of produce, in the absence of money, was bartered for 'justice.'"

_J. Parke, History of English Chancery, page 23._

COMMON LAW: A. D. 1265. Disappearance of the Office of Chief Justiciary.

"Towards the end of this reign [Henry III.] the office of Chief Justiciary, which had often been found so dangerous to the Crown, fell into disuse. Hugh le Despenser, in the 49th of Henry III., was the last who bore the title. The hearing of common actions being fixed at Westminster by Magna Charta, the Aula Regia was gradually subdivided and certain Judges were assigned to hear criminal cases before the King himself, wheresoever he might be, in England. These formed the Court of King's Bench. They were called 'Justitiarii ad placita coram Rege,' and the one who was to preside 'Capitalis Justiciarius.' He was inferior in rank to the Chancellor, and had a salary of only one hundred marks a year, while the Chancellor had generally 500. Henceforth the Chancellor, in rank, power, and emolument, was the first magistrate under the Crown, and looked up to as the great head of the profession of the law."

_Lord Campbell, Lives of the Chancellors, volume 1, pages 139-140._

COMMON LAW: A. D. 1275. Statute of Westminster the First; Improvement of the Law.

"He [Robert Burnel] presided at the Parliament which met in May, 1275, and passed the 'Statute of Westminster the First,' deserving the name of a Code rather than an Act of Parliament. From this chiefly, Edward I. has obtained the name of 'the English Justinian'—absurdly enough, as the Roman Emperor merely caused a compilation to be made of existing laws,—whereas the object now was to correct abuses, to supply defects, and to remodel the administration of justice. Edward deserves infinite praise for the sanction he gave to the undertaking; and from the observations he had made in France, Sicily, and the East, he may, like Napoleon, have been personally useful in the consultations for the formation of the new Code,—but the execution of the plan must have been left to others professionally skilled in jurisprudence, and the chief merit of it may safely be ascribed to Lord Chancellor Burnel, who brought it forward in Parliament. The statute is methodically divided into fifty-one chapters. … It provides for freedom of popular elections, then a mutter of much moment, as sheriffs, coroners, and conservators of the peace were still chosen by the free holders in the county court, and attempts had been made unduly to influence the elections of knights of the shire, almost from the time when the order was instituted. … It amends the criminal law, putting the crime of rape on the footing to which it has been lately restored, as a most grievous but not a capital offence. It embraces the subject of 'Procedure' both in civil and criminal matters, introducing many regulations with a view to render it cheaper, more simple, and more expeditious. … As long as Burnel continued in office the improvement of the law rapidly advanced,—there having been passed in the sixth year of the King's reign the 'Statute of Gloucester;' in the seventh year of the King's reign the 'Statute of Mortmain;' in the thirteenth year of the King's reign the 'Statute of Westminster the Second,' the 'Statute of Winchester,' and the 'Statute of Circumspecte agatis;' and in the eighteenth year of the King's reign the 'Statute of Quo Warranto,' and the 'Statute of Quia Emptores.' With the exception of the establishment of estates tail, which proved such an obstacle to the alienation of land till defeated by the fiction of Fines and Common Recoveries,—these laws were in a spirit of enlightened legislation, and admirably accommodated the law to the changed circumstances of the social system,—which ought to be the object of every wise legislation."

_Lord Campbell, Lives of the Chancellors, volume 1, pages 143-146._

See, also, ENGLAND: A. D. 1275-1295, and 1279.

COMMON LAW: A. D. 1278. Foundation of Costs at Common Law.

"The Statute of Gloucester, 6 Edw. I c. i, is the foundation of the common law jurisdiction as to costs, and by that statute it was enacted that in any action where the plaintiff recovered damages, he should also recover costs. … By the Judicature Act, 1875, O. L. V., the Legislature gave a direct authority to all the judges of the Courts constituted under the Judicature Act, and vested in them a discretion which was to guide and determine them, according to the circumstances of each case, in the disposition of costs."

_Sydney Hastings, Treatise on Torts, page 379._

{1963}

COMMON LAW: A. D. 1285. Statute of Westminster II.; Writs in Consimili Casu.

"The inadequacy of the common form writs to meet every case was, to some extent, remedied by the 24th Chapter of the Statute of Westminster II., which, after providing for one or two particular cases to meet which no writ existed, provides further that 'whensoever from henceforth it shall fortune in Chancery that in one case a writ is found, and, in like case falling under like law is found none, the clerks of the Chancery shall agree in making a writ or shall adjourn the Plaintiffs until the next Parliament, and the cases shall be written in which they cannot agree, and be referred until the next Parliament; and, by consent of the men learned in the Law a writ shall be made, that it may not happen, that the King's Court should fail in ministering justice unto Complainants.' … The words of the statute give no power to make a completely new departure; writs are to be framed to fit cases similar to, but not identical with, cases falling within existing writs, and the examples given in the statute itself are cases of extension of remedies against a successor in title of the raiser of a nuisance, and for the successor in title of a person who had been disseised of his common. Moreover the form of the writ was debated upon before, and its sufficiency determined by the judges, not by its framers, and they were, as English judges have always been, devoted adherents to precedent. In the course of centuries, by taking certain writs as starting points, and accumulating successive variations upon them, the judges added great areas to our common law, and many of its most famous branches, assumpsit, and trover and conversion for instance, were developed in this way, but the expansion of the Common Law was the work of the 15th and subsequent centuries, when, under the stress of eager rivalry with the growing equitable jurisdiction of the Chancery, the judges strove, not only by admitting and developing actions upon the case, but also by the use of fictitious actions, following the example of the Roman Praetor, to supply the deficiencies of their system."

_D. M. Kerly, History of Equity, pages 10-11._

COMMON LAW: A. D. 1285. Writ of Elegit.

The Writ of Elegit "is a judicial writ given by the statute Westm. 2, 13 Edw. I., c. 18, either upon a judgment for a debt, or damages; or upon the forfeiture of a recognizance taken in the king's court. By the common law a man could only have satisfaction of goods, chattels, and the present profits of lands, by the … writs of 'fieri facias,' or 'levari facias;' but not the possession of the lands themselves; which was a natural consequence of the feudal principles, which prohibited the alienation, and of course the encumbering of the fief with the debts of the owner. … The statute therefore granted this writ (called an 'elegit,' because it is in the choice or the election of the plaintiff whether he will sue out this writ or one of the former), by which the defendant's goods and chattels are not sold, but only appraised; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff, at such reasonable appraisement and price, in part of satisfaction of his debt. If the goods are not sufficient, then the moiety or one-half of his freehold lands, which he had at the time of the judgment given, whether held in his own name, or by any other in trust for him, are also to be delivered to the plaintiff; to hold, till out of the rents and profits thereof the debt be levied, or till the defendant's interest be expired; as till the death of the defendant, if he be tenant for life or in tail."

_Wm. Blackstone, Commentaries, book 3, chapter 27._

COMMON LAW: A. D. 1290. Progress of the Common Law Right of Alienation.

"The statute of Quia Emptores, 18 Edw. I., finally and permanently established the free right of alienation by the sub-vassal, without the lord's consent; … and it declared, that the grantee should not hold the land of his immediate feoffor, but of the chief lord of the fee, of whom the grantor himself held it. … The power of involuntary alienation, by rendering the land answerable by attachment for debt, was created by the statute of Westm. 2, 13 Edw. I, c. 18, which granted the elegit; and by the statutes merchant or staple, of 13 Edw. I., and 27 Edw. III., which gave the extent. These provisions were called for by the growing commercial spirit of the nation. To these we may add the statute of 1 Edw. III., taking away the forfeiture or alienation by the king's tenants in capite, and substituting a reasonable fine in its place; … and this gives us a condensed view of the progress of the common law right of alienation from a state of servitude to freedom."

_J. Kent, Commentaries, part 6, lecture 67._

COMMON LAW: A. D. 1292. Fleta.

"Fleta, so called from its composition in the Fleet prison by one of the justices imprisoned by Edward I., is believed to have been written about the year 1292, and is nothing but an abbreviation of Bracton, and the work called 'Britton,' which was composed between the years 1290 and 1300, is of the same character, except that it is written in the vernacular language, French, while Granvil, Bracton and Fleta are written in Latin."

_Thomas J. Semmes, 9 American Bar Association Report, page 193._

COMMON LAW: A. D. 1300 (circa). The King's Peace a Common Right.

"By the end of the thirteenth century, a time when so much else of our institutions was newly and strongly fashioned for larger uses, the King's Peace had fully grown from an occasional privilege into a common right. Much, however, remained to be done before the king's subjects had the full benefit of this. … A beginning of this was made as early as 1195 by the assignment of knights to take an oath of all men in the kingdom that they would keep the King's Peace to the best of their power. Like functions were assigned first to the old conservators of the peace, then to the justices who superseded them, and to whose office a huge array of powers and duties of the most miscellaneous kind have been added by later statutes. … Then the writ 'de securitate pacis' made it clear beyond cavil that the king's peace was now, by the common law, the right of every lawful man."

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

A. D. 1307-1509. The Year Books.

"The oldest reports extant on the English law, are the Year Books … , written in law French, and extend from the beginning of the reign of Edward II, to the latter end of the reign of Henry VIII, a period of about two hundred years. … The Year Books were very much occupied with discussions touching the forms of writs, and the pleadings and practice in real actions, which have gone entirely out of use."

_J. Kent, Commentaries, part 3, lecture 21._

{1964}

COMMON LAW: A. D. 1316. Election of Sheriffs abolished.

"Until the time of Edward II. the sheriff was elected by the inhabitants of the several counties; but a statute of the 9th year of that reign abolished election, and ever since, with few exceptions, the sheriff has been appointed, upon nomination by the king's councillors and the judges of certain ranks, by the approval of the crown. … The office of sheriff is still in England one of eminent honor, and is conferred on the wealthiest and most notable commoners in the counties."

_New American Cyclopædia, volume 14, page 585._

COMMON LAW: A. D. 1326-1377. Jurors cease to be Witnesses.

"The verdict of … the assize was founded on the personal knowledge of the jurors themselves respecting the matter in dispute, without hearing the evidence of witnesses in court. But there was an exception in the case of deeds which came into controversy, and in which persons had been named as witnessing the grant or other matter testified by the deed. … This seems to have paved the way for the important change whereby the jury ceasing to be witnesses themselves, gave their verdict upon the evidence brought before them at the trials. … Since the jurors themselves were originally mere witnesses, there was no distinction in principle between them and the attesting witnesses; so that it is by no means improbable that the latter were at first associated with them in the discharge of the same function, namely, the delivery of a verdict, and that gradually, in the course of years, a separation took place. This separation, at all events, existed in the reign of Edward III.; for although we find in the Year Books of that period the expression, 'the witnesses were joined to the assize,' a clear distinction is, notwithstanding, drawn between them."

_W. Forsyth, Trial by Jury, pages 124 and 128._

COMMON LAW: A. D. 1362. Pleading in the English tongue. Enrollment in Latin.