Origins of the Common Law 086597053X, 0865970548

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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