Origins of the Common Law 0865970548, 9780865970540

Citation preview

Hogue, Arthur Reed Origins of the Common Law

Birbal’s Library Project Front Cover by GoodOwlO (TP)

ARTHUR R. HOGUE ORIGINS OF THE COMMON LAW

Gli

Tenants'

Mradowa.

net (J>mnxo>

%&

J

/Tafh.ro

V-T^\^V ZHiU

FMB

:*=

sg ^ i

^$ «|

:••:

|

j@

f

m ^

|

V»'

W

4

-

—

^^ is « *i sj fad*. » m^^/^

•*

*$ m g^ qb

y=.

vvv>

S3

I

r@

!

uv^ c

:

|

**

S3 rrS

^

I

« -# S3 « S3 r* ^3 C^^ S3 $ ^ ^B ^v^ £@

*»

-

I

I

t

1

S3

t

^

|

v*isg*^ #^sb #^^u n^i^v^ n ^#^t si ir^i^u n^i^^ n?a*^

1

*r»

V^

h^^rMl

-

« \H ^3 ^H£

1

S3

;lprj>

^

^j^g

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

INTRODUCTION

4

settlement.

And

it

will

be assumed in

all

of the discussion

which follows that the common law has grown, now rapidly, now reluctantly, to keep pace with changes in the social order, from which, again, it is inseparable. Social change and legal change are more easily discerned than accounted for, and the process by which legal changes are made is often far from clear. The mystery surrounding

many Legal changes may be particularly baffling when we deal with a system of judge-made law. For who can determine with precision the thought of me dieval(xoyaT)udff es as they built up a It

body of principles is difficult enough

in the present,

in case after case, decision after decision? to

grasp the nature of the judicial process

when we have

full

reports of

trials

opinions as well as the decisions of judges. Even

and the

so, there is

common

law during its foundation years, when its principles were not overlaid by a vast burden of statutory legislation designed for the complexity of modern value in an account of the

life.

An account

of the

common

bring us close to many,

if

not

all,

law

in

medieval England

of the elements

will

which must be

considered in dealing with the law in any period. Here we shall touch on substantive rules and rules of procedure as well as on courts of justice

and agencies

medieval period

we

change accompanying tury

of enforcement. Moreover, in the

shall find excellent

social change.

Men

examples of

legal

of the twelfth cen-

and the thirteenth knew both the vigor and the decline

of

feudalism. In these centuries population increased rapidly,

and

epoch of good markets and rising prices. English merchants traded with Lombards from Italy, Hansards from Germany, and wool merchants who supplied the looms of Flanders. Oxford and Cambridge univeragriculture flourished in an

sities trace their histories

back to the thirteenth century,

builders were at

those

at

when

work on such English Gothic cathedrals as Salisbury and Wells. England in the thirteenth century

was a society of rapid change.

SOCIAL CHANGE AND THE

Ai

GROWTH OF THE COMMON LAW

COMMON LAW

DEFINITION/ OF

IN

5

THE MIDDLE AGES

The greater a man's knowledge of the law, the more hesitant he will be in answering the question What is common law? Bu we need a working definition here, and perhaps we can distinguish the common law in the twelfth and thirteenth centuim ny fter Je gaJ systems by calling it simply the body of t

:

conduct and

rules prescribi njS. social

justiciable in the raval

courts of England. Although this definition eral,

it

is difficult

to

be more precise.

1

is

admittedly gen-

We should remember that common to all the realm

the law enforced in royal courts, and

was in competition with concurrent rules enforced other courts. Savefwnen a matter of freehold was at issue,

of England, in

Englishmen were not compelled to present their causes before the king's courts. Men were free to take their cases into the local courts of the counties, which administered local, customary law; men might seek justice from the church courts administering rules of canon law, which touched many matters, especially those related to wills and testaments, marriage and divorce, and contracts involving a pledge of faith; feudal barons might accept ju risdiction o f a baron ial overlord whose court applied rules of feudal custom;

townsmen might

bring their

causes before the court of a borough, which would fudge them by rules of the law merchant. All these courts and systems of

law deserve mention

Jc

an account of growth of the

in

common

end of the thirteenth century the common lawhad absorbed much, if not all, of the judicial busin ess of its competitors and may have borrowed heavily from them in the

law, for

by the

process of aggrandizement. The medieval common law then, was not local ,

We should distinguish 1

it

01

particular

from whatever smacks of a specialty

It

Hermann Kantorowici J%e Definition of Lew, ed

dm

Press, L95S),

p

79; see also Sir

Lams o/Englend, 9th ad (

ontrast

common

lav*

17S3

with

1

\ H Campbell Cambrkflajt William Blackstone ommenteriei on the
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 men

fora discussion

ot

the Mise

l

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.

particular customs.

*

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,

Gaius (jurisconsult), 23 Gaol Delivery, 164, 244 Gascony, 70-72

of, 57,

gavelkind, 148, 187, 195-96

68-69; as land tenure system,

97-100, 217; lord-vassal relationship

general eyre, 154-58, 175-76 in marriage,''

"gift

in,

91-113; military seivice as

power base of, of,

108-10; social order

85-88; subinfeudation, 97-101,

Fitzherbert, Justice, quoted, 202

collection

on villeinage, of,

on

211-15

on

common

law, 25-28

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,

of,

Geoffrey of Anjou, 35

Fleta, 132, 134, 138, 177, 179-80, 201,

foreign trade's influence

122; writ

13-15, 210

Gloucester, Statute

Fitzurse, Reginald, 43 fitzWalter, Robert, 46, 51

Great Charter. See

Magna Carta

Great Seal, 167-70

Guala (papal

legate), 54,

57

mon-

problems with feudal lord-

in, 20,

27;

lay fee vs. ecclesiastical property,

;

fitzStephen, William, 151

France, John's losses

on

41 quoted

fitzNigel, Richard, 37

ships

Ranulph, on Covenant,

English laws, 191-92; as judge, 154;

fiction, legal 11

archial

227-34

Gilbert of Niddesdale, 16 Glanvill,

234-35; and tenure, 91-1 13

229-30

gifts of estates in land, 217,

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

II

of French lands

Magna Carta 51-54

pel

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-

of,

46;

judges, royal, authority as,

159-60; dearth

of, 12;

Bracton

116: dis-

of,

tinguished, listed, 154; of equit\

chancellor, 169

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