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English Pages [290] Year 1985
ARTHUR R. HOGUE ORIGINS OF THE COMMON LAW
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ORIGINS OF THE
COMMON LAW
Ah
i
m
k
Ki.i.i)
Hot,
i
i.
was horn
in Pittsburgh in
L906, the .son ot Un-
distinguished Presbyterian minister, Walter Jenkins Hague. He received his A.H. magna dim laude from Oberlin College in \\)2S \\ Haivard, he studied under the medievalist Charles Homer Haskms
and the historian ol political thought. his MA. in H)2
Unfree Tenures and Their Obligations
Chapter 5 I
83
Sources of English
Law in
WHAT THE COMMON LAW WHAT THE COMMON LAW
IS
the Middle Ages
NOT
IS
THE NATURE OF LEGAL CUSTOM MEDIEVAL USE OF JUDICIAL PRECEDENTS ENACTMENTS AND STATUTES FORMS OF ACTION: THE FRAMEWORK OF THE COMMON LAW
183 185
186 188 190 200 203
209
1
CONTENTS Chapter 9
Enactments of Edward
I
REGULATION OF CREDITORS AND DEBTORS REGULATION OF ESTATES IN LAND REGULATION OF PURCHASE AND SALE Ol FREE TENURES
CONCLUSION: THE MEDIEVAL LEGACY Chapter 10
From Medieval Law to Modern Law
THE VITALITY OF THE COMMON LAW THE CONTINUING GROWTH OF COMMON LAM EXPANSION OF THE COMMON LAW THE LEGACY OF THE MIDDLE AGES
xi
216
218 227 234
239 24 241
247 24
Maltland'a introduction to his edition
Belden Society Vol
17
1903
INTRODUCTION
8
Leasehold and other so-called "chattel interests" in land eventually secured as much protection from the common law as freehold, a property interest of the highest dignity and quite suitable for a feudal class. More about this follows in Chapters 8
and
9.
8
I
\Bll
ITY
AND CHANGE: A PARADOX CONSIDERED
In every generation both lawyers and laymen seem to have been drawn toward two desirable but widely separated and
rontradictoiy goals
manence,
The
first
of these
is
the goal of per-
stability, certainty in legal doctrines.
The second
is
the goal of flexibility or adaptability, permitting adjustment of the law to social necessities.
The
result of the pull in these
two
directions has been an unresolved tension between the search
and the desire to make the law serve its own age. The tension here is not necessarily a conflict between factions, parties, or groups of men; not always a tug-of-war between conservatives and radicals. The dual objectives can exist in the for stability
legal
thought of a single
jurist.
The pull toward permanence in the law is particularly strong whenever real property interests are involved, whenever land, buildings, or real estate are at stake; for these interests often
span long periods of time and may
A long-term
ations.
affect
two or three gener-
lease for a period of ninety-nine years
Such a lease, properly endure into a distant future,
ordinarily touches the use of land.
and
drafted will
clearly
designed to
not be disturbed by a
ation
—
common-law
court save for excep-
good reasons. What was just and right in one generso argument may run should not be disturbed in an-
tionally
—
other generation; otherwise, men will not plan their affairs for the future with confidence that arrangements will hold up in court.
Another force contributing
to
permanence and
stability in
the law emerges from the doctrine of stare decisis, or the
SOCIAL CHANGE AND THE
GROWTH OF THE COMMON LAW
9
practice of looking to precedents while formulating a legal
The doctrine
assumes that court decisions have been reasonable, that what was reasonable in one century maybe reasonable in another even though in the meantime the most revolutionary social and political changes
principle.
of stare decisis
—
may
have occurred. The important word here is reasonable. Roman Taw spread through the Mediterranean world, European legal systems have made much of the reasonableness of law and have been influenced by the ideal of creating a body of legal principles which would be simple, stable, and consistent. Among jurists there have always been those who take delight in the strict logic of a closely reasoned argument and who wish to treat law as a science, not as abstract as mathematics perhaps, but similar to mathematics in the timeEver since the
less certainty of its conclusions.
We need not examine all of the assumptions involved in doctrine that the law is written reason, ratio scripta, but
the
we can
note that they approach a belief in an absolute justice or equity
which the human mind can apprehend by reason. eternal reasonableness of law Stoic view eloquently stated
is
Faith in the
thus not far from the ancient
by Cicero:
True law is right reason, consonant with nature, diffused among all men, constant, eternal It needs no interpreter or expounder but itself, nor will there be one law in Rome and another in Athens one in the present and another in time to come, hut one law and that eternal and immutable? shall embrace .ill peoples and tor all time and there shall be as it were one common master and ruler the god of all, the author and judge and proposer of this law '
Middle Ages there was the notion ot a permanence 111 the law imparted by its connection with Immemorial custom was Uiw was not "ma de," according to this m edieval view in the
;
'(
ii
\i( iiw.iin
null. m, 1982),
The Growth of Politic*! Thought In the Wool i' quoting from the Do repubhot
pp mi
it
New York
Mat
INTRODUCTION
lO
"declared" by those familiar with the custom of a certain tory. Bracton, a thirteenth-century English
terri-
judge and author of
on the laws and customs of England, explained that "while they use leges and a written law in almost all lands, in England alone there has been used within its boundaries an unwritten law and custom. In England legal right is based on an unwritten law which usage has approved. For the English hold many things by customary law which " they do not hold by /ex. 5 Bracton was incorrect in attributing the use of custom to the English alone, but he was quite right in observing that in his own time customary law, approved by use, a remarkable treatise
.
.
.
carried the greatest authority.
The other desirable
which attracts the attention of meet new social conditions. Attorneys make a living by knowing the law of their own day. They must prepare to advise clients in the light of both the most recent legislation and the most recent court decisions, no simlawyers
is
objective
adaptability of the law to
ple matter in the twentieth century,
when
almost continuous
books and steady reporting makes hundreds of common-law courts. Nevertheless, the modem attorney must follow as best he can the constant changes in the law affecting his clients. The lawyer is aware that permanence and stability must give way again and again to pressures from society. And in the opinion of more than one eminent jurist, this is as it should be. John Chipman Gray, in his Nature and Sources of the Law, observed that "opinions of judges in the Common Law and of jurists in the Civil Law on what society needs have profoundly influenced the law and for the better. And what could be a happier state of affairs than that judges and jurists should approach the law from the
legislation swells the statute
available the decisions of
J
5
Bracton,
De legibus et consuetudinihus Angliae,
Haven, 1915-41),
folio la.
ed. G. E. Woodbine, 4 vols.
(New
See also the edition with translation by Sir Travers
Twiss, Rolls Series, 6 vols. (London, 1878-83). For the medieval view of law generally, see the excellent account
pp. 167-200.
by Mcllwain, Growth of Political Thought,
SOCIAL CHANGE AND THE
side of public welfare
GROWTH OF THE COMMON LAW
and seek
to
adapt
it
to the
11
common
good?' 6
comments illustrate, incidentally, the tension between stability and change. Having approved adjustment of the Gray's
he turns to remarks about the permanence "One should remember, though most legal conceptions alter, and there may be few which are so based on eternal principles that they cannot change while the order of nature continues, yet their change is often exceedingly slow and many of them go back as far as we have a clear knowledge of human affairs, and show to our eyes no signs of
law to
social needs,
of certain legal concepts:
decay." 7
the common law may reveal this tenbetween the permanent and the expedient. Courts resort to a legal fiction or grasp at a mere hint of an analogy anything to avoid open confession that they are pouring new wine into old bottles. A legal fiction, of course, is an assertion which the court permits and allows no one to
Any encounter with
sion, this polarity,
—
challenge during a
thus the court achieves a desired
trial;
For example, the court of Exchequer formerly allowed a
result.
bring before
plaintiff to
it
an action of Debt
if
the plaintiff
asserted that by reason of the debtor's default the creditor
was
less able to
pay what he owed
plaintiffs obligation to the
to the
plaintiff-
Crown. The
Crown may have been nonexistent up would have been
or so slight that failure of the debtor to pay immaterial. Simply by asserting he
Crown, the
plaintiff
was
less able to
pay
to the
could get his case before the royal Ex-
in the twelfth and thirgrowth of the common law later, for early was marked by a certain frankness and directness. When foundations of the common law were being established, especially in the years between 154 and 1307, ol>\ iuu.sk
chequer. Fictions were not so frequent teenth centuries as
1
John Chipman Gray Vhe Nature and Sources of the Lav\ Neu Vork Columbia UdJv ProM, ibid ,p
r,
1909); p.S.
INTRODUCTION
12
theroyal courts were not as clearly guided as they are
and
now by
Beyond question law was what judges declared it to be. The common law was the body of statutes
judicial precedents.
rules enforced
by royal judges;
to
be
effective,
a system of legal
must have courts and enforcing agencies to give it life. A cause of action or a legal right is more than a matter for the plaintiff to assert; the plaintiff in any legal dispute must conrules
vince a court that he deserves a hearing. Indeed, a legal right
might be denned which the courts will enforce.
as a
power
will
recognize and the executive authority
to act or to refrain
from acting
A legislature may enact statutes setting forth rules
of law, but statutes
must be interpreted and applied in specific
cases by judges in court. Even a constitution, the most solemn
can be devised, must be interpreted finally by judges. Therefore, in any discussion of the growth of common law in medieval England, one must keep in
and permanent enactment
mind
that
the jurisdiction of royal courts, the character of royal
judges,
and the willingness
of English kings to enforce the
decisions of their courts.
ROYAL WRITS AND THE REGISTER OF WRITS In a time before there
was much parliamentary
legislation,
where would royal judges find the common law? An answer to this question leads directly to the writ system and to the Register of Writs, which grew in the thirteenth century with dramatic rapidity. There is no better evidence for the growth of the
common law in the Middle Ages. First,
what was a
writ
and what could
it
do
to initiate legal
action? George Spence has defined the original, or originating, writ as
an order from the king under the Great Seal, addressed to the sheriff of the county in which the cause of action arose or where the defendant resided, commanding him to cause the party complained of to appear in the king's court at a certain day to answer
SOCIAL CHANGE
AND THE GROWTH OF THE COMMON LAW
13
was founded on some principle of law, which gave the right on which the action was founded and the facts were stated with so much detail only as to bring the case within such principles of law. 8 the complaint. Every writ
regulajuris,
Each order, or writ, acquired a name. For example, to secure enforcement of an agreement, a plaintiff would obtain from Chancery, the writ-issuing bureau, a writ called Covenant; to collect a certain
sum
of
money
lent,
the plaintiff
would bring
the action of Debt; to recover personal property or chattels illegally taken,
number
the plaintiff would obtain a writ of Replevin.
The
of writs increased from about thirty-nine in the time
of Glanvill (ca. 1189) to
more than four hundred
in the reign of
unnecessary here to name all of them. Sometimes a writ took its name from a Latin word or phrase; the writ of Right, called Praecipe, mentioned in Magna Carta, Chapter 34, was so named for the first word following the salutation clause of the writ. The entire formula of the Praecipe quod reddat can serve as an illustration of an original royal writ.
Edward
I
(1272-1307);
it is
The King to the sheriff, greeting. Command [Praecipe] N. that and without delay he render to R. one hide of land in such a
justly
whereof the said R. complains that the said N. deforces him. And if he does not do this, summon him by good summoners that he be before me or my justices on the morrow of the second Sunday after Easter at such a place to show why he did not do it. And have there the summoners and this writ. 9 At Clarendon Witness Ranulfde Glanvill vill,
There is more compressed into such a formula than the layman might imagine. Elements essential for any trial are either plainly stated or clearly implied. First ot
the aggrieved 8
all,
notice that
man takes the initiative; he actively seeks aid from
George Spence, The Equitable Jurisdiction of the Cuurl
ol
(
h.in
III «i
4
i
LEGAL INSTITUTIONS
168
About the year 1200 the chancellor was assisted by a staff with mixed duties to distinguish the sergeants of the kings chapel from the clerks of the Chancery would have been very difficult. The chancellor then had no salary or secular income as a payment for his civil duties other than the irregular profits from the use of the Great Seal. The private subject obtaining an original writ bearing the Great Seal was required to pay a fee for invoking royal authority, and for these fees the chancellor then made no account to the Exchequer. Within a few years, however, the chancellors office became more definite and his staff more specialized. About 1238 the chapel and Chancery personnel separated. Then, on the appointment of Nicholas of Ely as chancellor in 1260, the Exchequer began to pay him an annual salary grant of 400 marks, a practice later continued and confirmed by Edward I. According to traditional political theory and practice, the appointment of the chancellor and other officials was one of the rights of the king a royal prerogative which he might not give away or share with other persons. In the middle of the thirteenth centuiy, this concept was challenged by the English baronage, who sensed that the royal administration had become increasingly bureaucratic and professional and that the barons no longer shared in the management of the affairs of the realm as their ancestors had at times when the king summoned a great council of his tenants-in-chief. They took the line of argument, to be used repeatedly after the thirteenth century, that the king should serve the good of the realm, that the king should be served by men guided by other than selfish interests, and that the barons should have a voice in appointing the principal officials. A representative group of barons should be
—
—
constantly at the royal court to supervise the activity of the
The baronial policy, if it had been translated would have been an incisive blow at medieval
king's ministers.
into reality,
kingship. 5 5
See above, pp. 60-66, for a discussion of baronial efforts to share in administration.
CHANCERY: SECRETARIAT AND WRIT-SHOP
169
A foreshadowing of the baronial effort at control of great offices may appear in the case of Ralph de Neville (1222-44), who insisted that his appointment as chancellor was a grant for life. This man took a very proprietary attitude toward his office, had come to him in 1226 by royal and the "common council of the realm.'' In 1231 he extracted a charter from Henry III giving him the office for life and the power, moreover, to transfer the keeping of the Great Seal to some assignee. Not satisfied with this, he secured a renewal and confirmation of the charter in 1235. Then, when his obvious uneasiness was fully justified by Henry's efforts to remove him from office in 1238, Ralph de Neville stubbornly asserting that the Great Seal
grant
refused to resign, insisting that his charters provided "that he
was not
to be deposed from his custody of the Seal unless so ordered by the consent and council of the entire realm." 6 It would be unwise to read into Ralph de Neville's language a sense on his part of the modern idea of ministerial responsibility. Rather, his case should be considered with that of other officials in a turbulent period when great men, such as the justiciar Hubert de Burgh, suddenly fell from the heights of power, and others, such as Peter des Roches, towered up in their places. Ralph de Neville clung pathetically to his office and tried to bolster his position by invoking the consent and
council of the entire realm. In this hope he
failed.
7
The time was not far off, however, when a baronial would claim as a general principle what Ralph de
faction
common
council
claimed as a personal
right:
namely, that the
Neville
of the realm, not the king, should control the chancellor's office b
Matthew
Chronica Majoni, H R. Luarri, ed Kolls Sri irs non deponetur ab eius si^illi cnstodia ordinante consensu et concilio. 1872-84),
7
Paris, III,
74: "Ut
Probably the office of chancellor was
7 vols
London,
nisi totuis
regni
In abeyance between the tall ol Ralph de andhia death (1244). See T.D Hardj i Catalogue cfLordChMncei lor*, Keepers of the Seal, Masters of the liolls. and Principal Cfficet s of the th^h Court of Chancery from the Earliest Period (London, 1843 and] B Dibbeix "chancellor and Keeper of the Seal In Heniy mi's Reign/ Bng/ia/i Hiatorical Review, XXVH, 39-43.
Neville (1238)
1
LEGAL INSTITUTIONS
170
as well as others. Repeatedly the barons requested that the
should be filled by a man who would perform his duties faithfully while guided by the common council of the realm {per commune consilium regni). In 1244 a joint committee of barons and prelates demanded the appointment of a chancellor, a justiciar, and a treasurer men who were to be always with the king. Owing to the lack of a chancellor, the barons declared, the Great Seal was 8 often set to writs that were contrary to justice. Again in 1248 and in 1249 the barons attempted to obtain a chancellor who would act in line with baronial views. They complained that the functions of the Chancery were performed by men who con9 sulted their own advantage instead of the good of the realm. Again in the Provisions of Oxford (1258) the barons demanded an annual report from the chancellor, the treasurer, and the justiciar to a committee of twenty-four barons representing the common council of the realm. 10 In the Provisions of Oxford the barons voiced their anxiety about the proper issuing of writs. "Concerning the Chancellor: The same [has been decided] with regard to the Chancellor; so that he shall render account of his term at the end of the year, and that merely by the king's will he shall seal nothing out of course, but shall do so by the advice of the council that surrounds the king." 11 chancellor's office should not be
left
vacant;
it
—
By including the chancellor among the other great offices to be controlled, the barons underscored the intimate connection between Chancery and the administration of justice. Simon de Montfort and his followers fought hard for their position but lost the war; the program which they advocated died with Earl Simon at the battle of Evesham. The royal victory of Henry III and his son Edward permitted the king to exercise the royal prerogative in appointments and also in the field of 8 9
10 11
Paris,
Chronica Majora,
IV,
362.
Ibid., V, 5.
pp. 385-86; S&M, pp. 143-46. S&M, pp. 144-45.
S.C.,
CHANCERY: SECRETARIAT AND WRIT-SHOP administration, with the result that the
common
171
law con-
tinued to grow under royal rather than baronial direction. Royal victories on the battlefield also confirmed what King Louis IX of France had stated in his award, the Mise of Amiens (1264), after the barons and Henry III had submitted their dispute to him as arbitrator. 12 Louis declared a theory of monarchy widely held throughout Europe in the thirteenth century when he decided that the king could freely promote, dismiss,
and
set aside his chief justiciar, chancellor, treasurer,
and
own
free
councilors and will.
all
other
officials
according to his
13
The Song of Lewes, a stated both the royalist
Latin
poem
written about 1264, fairly
and the baronial arguments while
fa-
voring definitely the baronial side.
Nor should the magnates of the realm heed whom he [the king] set own counties, or on whom he conferred the wardenship of castles, or whom he would have to show justice to his people. Further, he would have as chancellor and treasurer of his realm anyone soever at his own will, and counsellors of whatever nation, and various ministers at his own discretion, without the barons of England interfering in the king's acts. They would disinherit over his
.
.
.
14
the king
In the long run the king kept control of the chancellors
appointment
in the face of baronial
demands. But the mag-
nates of the realm continued to press the king to keep about
him men learned in the law, as one can see in the Articuli Super Cartas of 1300.
Moreover no common pleas shall henceforth be held in the exchequer, contrary to the form of the Great Charter. On the other
hand the king wills that the chancery and shall follow him; so that 12
See above,
11
s.c,
p. 64,
the justices of his bench
he may always have near him certain
fora discussion
ot
the Mise
l
men
tmieni
|>.:w
conauetudinibua regni
kng/lae,
ad
.
THE NATURE AND SOURCES OF THE COMMON LAW
19»
In the middle of the thirteenth century Bracton described
even more explicitly than Glanvill the place of custom in Enmaintained that "in England legal
glish law. Bracton bluntly
based on unwritten law which usage has approved. For the English hold many things by customary law which they " do not hold by /ex. 17
right
is
.
SOCIAL PRACTICE
Although
tom
.
AND LEGAL CUSTOM
many learned and profound jurists have named cus-
as a source of law, there have
among them
been serious differences customs
as they searched for the origins of legal
and the processes by which
social practices have obtained
recognition in courts of law. In the present, as in the past, the incidents of daily life are hedged about with customary rules of etiquette.
The man who
Christian church service
who
insists
on wearing a hat during a
may deeply offend accustomed
other
members
of
removing their hats on entering the building. But a hat-wearing church member is not punishable in a court of law.
the congregation,
On
are
to
the basis of certain tests of custom laid
down
in later
one can conjecture why the common-law courts of medieval England accepted some customs and refused others. In the Middle Ages, as in the present, large areas of life were controlled by custom, but not all social customs became legal customs enforceable in law courts as part of the common law. centuries,
Early in the seventeenth century, the Tanistry Case (1608)
produced a saw it:
definition of
custom
as the English courts then
A custom, in the intendment of law, is such a usage as hath obtained the force of a law, and is in truth a binding law to such George Woodbine (New Haven, 1932). English trans, by John Beames and Introd.by J. H. Beale (Washington, DC, 1900). See pp. xxxvii-xxxix. Henry de Bracton, De legibus et consuetudinibus Angliae, ed. and trans. Sir Travers Twiss, 6 vols., Rolls Series (1878-83),
fol. la.
SOURCES OF ENGLISH LAW
IN
THE MIDDLE AGES
But and things which it concerns. and made by the people only of such
particular places, persons, it is
a ius non scriptum,
place where the custom
193
is.
.
.
.
18
Although the Tanistry Case became a leading case with a great deal of learning on custom clustered about it, its definition of custom was later amplified. Perhaps Blackstone is the best guide on the subject of legal custom because he gives specific illustrations,
dations of the
some
common
of which reveal the medieval foun-
law.
19
He heads
his
list
of general
—
customs with examples from the law of Property the law of manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of Parliament; the respective remedies of civil injuries; the several species of temporal offences with the manner and degree of punishment." Blackstone also attributes to general custom the system of courts in his day, mentioning Chancery, King's Bench, Common Pleas, and Exchequer as the four superior courts of record by custom. He continues with examples of general customs by returning to the law of inheritance "the eldest son alone is heir to his ancestor; property may be acquired and transferred by writing; a deed is of no validity unless sealed and delivered; wills shall be construed more favourably and deeds more strictly; money lent upon bond is recoverable by action of debt; breaking the public peace is an offence and punishable by 20 fine and imprisonment." inheritance; "the
—
18
—
Viner, Abr. VII, 164, citing Tanistry Case (1608) Dav. 31b. See C. K. Allen,
the Making, 6th ed. (1958), p. 67, n.
1.
i.
*
is
Law in
a species of tenure in Ireland.
Under this immemorial usage, primogeniture gives way to inheritance by "the and most worthy man" of the blood and surname ad the deceased tenant. Although it was possible to determine who might be the oldest men (senior) with the proper relationship and name the English courts would not accept responsibility for determining who was the "mosl worthy" fdignissimus), and the custom was not accepted as applicable in common law. \
vU
122 91
fee simple 223 28 290
law, 203-7: ai
source; Oflaw, 204 ) sec ulso
fee tail 229 ,232
•tatutet
tecs conditional 220
England, fundamental element!
27 ss
i-»>
i-- 91
in
constitution of 243; legal Institu
felons, slid "benefit
Fesrekyn lohn
I
t
clerg)
43
»
264
INDEX
feudalism, class distinctions and,
Frescobaldi family of Florence, 26
85-88; vs. commercial property interests, 224, 235-37; history of,
91-95; king's authority not de-
pendent on, 18-20;
king's control
108-10; kingship theory
of,
of, 57,
68-69; as land tenure system,
97-100, 217; lord-vassal relationship in,
108-10; social order
85-88; subinfeudation, 97-101,
234-35; and tenure, 91-1 13 Fitzherbert, Justice, quoted, 202 fitzNigel, Richard, 37
211-15
on
common
law, 25-28
Ranulph, on Covenant,
27;
on
on
lay fee vs. ecclesiastical property,
on villeinage,
41 quoted
of,
122; writ
13-15, 210 of,
173, 211, 214
Forest, Charter of the, 78 forms of action, 17-18, 209-15; see also writ system
46-48;
Gower,John,88, 90 Gray, John Chipman, 10-11 Gray.
John
de, 48
Gray's Inn, 246
Great Britain. See England
Forest, Assize of the, 37, 207
in,
227-34
Geoffrey of Anjou, 35
Fleta, 132, 134, 138, 177, 179-80, 201,
Great Charter. See
Magna Carta
Great Seal, 167-70
Guala (papal
legate), 54,
57
mon-
problems with feudal lord-
in, 20,
Glanvill,
Gloucester, Statute
Fitzurse, Reginald, 43
foreign trade's influence
229-30
Gilbert of Niddesdale, 16
collection
fitzWalter, Robert, 46, 51
ships
in marriage,''
gifts of estates in land, 217,
;
fitzStephen, William, 151
archial
general eyre, 154-58, 175-76
English laws, 191-92; as judge, 154;
fiction, legal 11
France, John's losses
gavelkind, 148, 187, 195-96 "gift
91-113; military seivice as
power base of, of,
Gaius (jurisconsult), 23 Gaol Delivery, 164, 244 Gascony, 70-72
Hales, John, 88
halimote, 131
36
frankalmoin, 106-8, 161
hayward,
frankpledge, 17, 132, 135, 137-39
Hengham, Ralph, 205, 210 Henry I, King of England, burgage grant of, 105; and church-state re-
Frederick
II,
Holy
Roman Emperor,
59-60 "free
alms, "41
124, 134
commissioning of judges Henry II restores policies of,
lations, 36;
free tenures, 85-113; burgage, 104-5;
and Chancery writs, 166-67; dispossession protection, 162; and feu-
by, 154;
37-38
Henry II, King of England, absolutism
dalism, 91-113; frankalmoin, 107;
of,
knight service, 88, 95-100; as legal
34-35, 44-45; assizes
concept, 108-10; listed, 100-1; pro-
character and personality of, 35-36;
tection of rights
of,
27-28, 224-25;
regulation of buying of,
234-37;
and selling
and seisin, 27-28,
94,
33-35; administrative of,
skill of,
161-62, 207;
controversy with Becket, 38-44; and freehold protection, 167, 217, 224-25; itinerant court
and John
of,
150-51,
161-62, 212-14, 217, 222; sergeanty,
153-55;
100-4; socage, 103-5; as source of
judges of, 153, 154; and land law, 246; mentioned, 20; relations with
wealth, 101; vs. villeinage, 114-16
of Salisbury, 87;
INDEX Henry II (continued)
John, King of England, 45-57) bar oris
Roman Church, 36; restoration poli-
rebellion against, 49-55;
cies of, 37-38
ation of legal system, 33; Henry
Henry
III,
King of England, 56-67;
heir
alien influence on, 57-60; character of, 58,
59; conflict
with baronage,
56-58, 60-67, 170-71; enactments
of,
mentioned, 23, 43; money problems 26; quoted on eyre court, 157;
of,
Magna Carta, 54; Sicilian
fiasco
59-60; struggles with
of,
47-48; and of,
Magna Carta 51-54
pel
46;
judges, royal, authority as,
chancellor, 169
II
of French lands
and Pope Innocent III, 48-49, 93; and Praecipe, 20 John of Lexington, 154 John of Oxford, 154 John of Salisbury, 35, 86-90 sonality
207-8; Exchequer court and, 152;
reissues
to, 57; loss
and cre-
159-60; dearth
of, 12;
Bracton
116: dis-
of,
tinguished, listed, 154; of equit\
Henry VII, King of England, 242 Henry Vail, King of England, 242-43 Henry, Prince of Germany, 65
174-76; as justices-in-evre, 154-58,
Holdsworth, William
makers of English
S.,
quoted,
18, 24,
175-76; on King's Bench, 159;
knights
as, 165; "lay,*'
164-65; as
law, 200-3, 205-6,
145,187 Holmes, Oliver Wendell Jr., 251 House of Commons, 66, 247 Hugh of Lusignan, 47 hundred courts, 136-39, 147-48
Judicature Acts, 188, 244
hundreds (county subdivisions),
jury, for
in
215, 252-53; role
of, 12; skill of, 19;
enactment by, 205; use of precedent by, 199-203; as well
statute
versed in general customs, 192-95
common-law courts,
189;
136-37
Henrys preference for trials by, 161 medieval vs. modern, 185-86; Nisi
consimili casu, 21, 22
Prius spares journey to London,
inheritance, Assize of Mort d'Ancestor to protect, 162;
and continuity of
family property interest, 231-34; of estates in land, 227-34; by gavelkind, 148, 187, 195-96;
and
lord-
163; for possessory assizes, 161 view of frankpledge, 137-38
fol
"Justice of the Peace," 165 justices, royal.
See judges royal
Justinian, Emperor, codification ol
vassal relationship, 96-97; by
22-24, 186; quoted on precedent
primogeniture, 195; by villeins not
203, 242
possible, 122
Inner Temple, 246 Innocent III, Pope, 48-49, Inns of Court, 246
Kenihvorth, Dictum 54,
93
Kent, gavelkind
Countess oi Ubemarle, 211 Angouleme, 17, 7>!)
Isabella ol
207 253
7
146 157 195
In
Kern, Fritz, quoted 180
[merius of Bologna, 23 Isabel
86
t
Kent lames 250
'
kui^, administrative
Kin
t;i
authority
procedures t is 20 barons
t
challenge sdminiati stive sp i,
ni
i
delivery, 164,
Fames
ii.
Kin^
ol
pointmenta
244 England/ 243
lews creditor-debtor practices of, 219,
n\ moneylendingby,
219 20,226;
and Statutes ol the Jewry,
n^
i>\
oath tu respecl i
\s
I,:,
167 lav*
'>
enactments bj
Issue hi n»\
.ii
coronation
L60 courta
MM
prei ogative
iniinih nl the realm
s
i
\
i
i
and