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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
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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
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