Chapter IV: , VII (149)

"When the Normans came into England they brought with them,
not only a far more vigorous and searching kingly power than
had been known there, but also a certain product of the
exercise of this power by the Frankish kings and the Norman
dukes; namely, the use of the inquisition in public
administration, i. e., the practice of ascertaining facts by
summoning together by public authority a number of people most
likely, as being neighbors, to know and tell the truth, and
calling for their answer under oath. This was the parent of
the modern jury. …
{1957}
With the Normans came also another novelty, the judicial
duel—one of the chief methods for determining controversies
in the royal courts; and it was largely the cost, danger, and
unpopularity of the last of these institutions which fed the
wonderful growth of the other."

_J. B. Thayer,
The Older Modes of Trial
(Harvard Law Review, volume 5, page 45)._

COMMON LAW: A. D. 1066-1154.
Trial by Jury unknown to Anglo-Normans.

"The same remark which has already been made, with reference
to the absence of all mention of the form of jury trial in the
Anglo-Saxon Laws, applies equally to the first hundred years
after the Conquest. It is incredible that so important a
feature of our jurisprudence, if it had been known, would not
have been alluded to in the various compilations of law which
were made in the reigns of the early Norman kings. …
Although the form of the jury did not then exist, the
rudiments of that mode of trial may be distinctly traced, in
the selection from the neighborhood where the dispute arose,
of a certain number of persons, who after being duly sworn
testified to the truth of the facts within their own
knowledge. This is what distinguishes the proceeding from what
took place among the Anglo-Saxons—namely, the choosing a
limited number of probi homines to represent the community,
and give testimony for them."

_W. Forsyth,
Trial by Jury,
pages 82-90._

See, also, JURY: TRIAL BY.

COMMON LAW: A. D. 1066-1154.
The Curia Regis.

"As a legal tribunal the jurisdiction of the Curia was both
civil and criminal, original and appellate. As a primary court
it heard all causes in which the king's interests were
concerned, as well as all causes between the tenants-in-chief
of the crown, who were too great to submit to the local
tribunals of the shire and the hundred. As an appellate court
it was resorted to in those cases in which the powers of the
local courts had been exhausted or had failed to do justice.
By virtue of special writs, and as a special favor, the king
could at his pleasure call up causes from the local courts to
be heard in his own court according to such new methods as his
advisers might invent. Through the issuance of these special
writs the king became practically the fountain of justice, and
through their agency the new system of royal law, which finds
its source in the person of the king, was brought in to remedy
the defects of the old, unelastic system of customary law
which prevailed in the provincial courts of the people. The
curia followed the person of the king, or the justiciar in the
king's absence."

_Hannis Taylor,
Origin and Growth of the English Constitution,
part 1, pages 245-246._

COMMON LAW: A. D. 1066-1215.
Purchasing Writs.

"The course of application to the curia regis was of this
nature. The party suing paid, or undertook to pay, to the king
a fine to have justitiam et rectam in his court: and thereupon
he obtained a writ or precept, by means of which he commenced
his suit; and the justices were authorized to hear and
determine his claim."

_Reeves' (Finlason's) History English Law,
volume 1, page 267._

COMMON LAW: A. D. 1077.
Trial by Battle.

"The earliest reference to the battle, I believe, in any
account of a trial in England, is at the end of the case of
Bishop Wulfstan v. Abbot Walter, in 1077. The controversy was
settled, and we read: 'Thereof there are lawful witnesses …
who said and heard this, ready to prove it by oath and
battle.' This is an allusion to a common practice in the
Middle Ages, that of challenging an adversary's witness, or
perhaps to one method of disposing of cases where witnesses
were allowed on opposite sides and contradicted each other.
… Thus, as among nations still, so then in the popular
courts and between contending private parties, the battle was
often the ultima ratio, in cases where their rude and
unrational methods of trial yielded no results. It was mainly
in order to displace this dangerous … mode of proof that the
recognitions—that is to say, the first organized form of the
jury—were introduced. These were regarded as a special boon
to the poor man, who was oppressed in many ways by the duel.
It was by enactment of Henry II. that this reform was brought
about, first in his Norman dominions (in 1150-52), before
reaching the English throne, and afterwards in England,
sometime after he became king, in 1154."

_J. B. Thayer,
The Older Modes of Trial
(Harvard Law Review, volume 5, pages 66-67)._

See, also: WAGER OF BATTLE.

COMMON LAW: A. D. 1100 (circa).
Origin of Statutes of Limitation.

"Our ancestors, instead of fixing a given number of years as
the period within which legal proceedings to recover real
property must be resorted to, had recourse to the singular
expedient of making the period of limitation run from
particular events or dates. From the time of Henry I. to that
of Henry III., on a writ of right, the time within which a
descent must be shown was the time of King Henry I. (Co. Litt.
114b). In the twentieth year of Henry III., by the Statute of
Merton (c. 8) the date was altered to the time of Henry II.
Writs of 'mort d'ancestor' were limited to the time of the
last return of King John into England; writs of novel
disseisin to the time of the king's first crossing the sea
into Gascony. In the previous reign, according to Glanville
(lib. 13, c. 33), the disseisin must have been since the last
voyage of King Henry II. into Normandy. So that the time
necessary to bar a claim varied materially at different
epochs. Thus matters remained until the 3 Edw. I. (Stat. West.
1, c. 39), when, as all lawyers are aware, the time within
which a writ of right might be brought was limited to cases in
which the seisin of the ancestor was since the time of King
Richard I., which was construed to mean the beginning of that
king's reign (2 Inst. 238), a period of not less than
eighty-six years. The legislature having thus adopted the
reign of Richard I. as the date from which the limitation in a
real action was to run, the courts of law adopted it as the
period to which, in all matters of prescription or custom,
legal memory, which till then had been confined to the time to
which living memory could go back, should thenceforth be
required to extend. Thus the law remained for two centuries
and a half, by which time the limitation imposed in respect of
actions to recover real property having long become
inoperative to bar claims which had their origin posterior to
the time of Richard I., and having therefore ceased
practically to afford any protection against antiquated
claims, the legislature, in 32d of Henry VIII. (c. 2), again
interfered, and on this occasion, instead of dating the period
of limitation from some particular event or date, took the
wiser course of prescribing a fixed number of years as the
limit within which a suit should be entertained. …
{1958}
It was of course impossible that as time went on the adoption
of a fixed epoch, as the time from which legal memory was to
run, should not be attended by grievous inconvenience and
hardship. Possession, however long, enjoyment, however
interrupted, afforded no protection against stale and obsolete
claims, or the assertion of long abandoned rights. And as
parliament failed to intervene to amend the law, the judges
set their ingenuity to work, by fictions and presumptions, to
atone for the supineness of the legislature. … They first
laid down the somewhat startling rule that from the usage of a
lifetime the presumption arose that a similar usage had
existed from a remote antiquity. Next, as it could not but
happen that, in the case of many private rights, especially in
that of easements, which had a more recent origin, such a
presumption was impossible, judicial astuteness to support
possession and enjoyment, which the law ought to have invested
with the character of rights, had recourse to the questionable
theory of lost grants. Juries were first told that from user,
during living memory, or even during twenty years, they might
presume a lost grant or deed; next they were recommended to
make such presumption; and lastly, as the final consummation
of judicial legislation, it was held that a jury should be
told, not only that they might, but also that they were bound
to presume the existence of such a lost grant, although
neither judge nor jury, nor anyone else, had the shadow of a
belief that any such instrument had ever really existed. …
When the doctrine of presumptions had proceeded far towards
its development, the legislature at length interfered, and in
respect of real property and of certain specified easements,
fixed certain periods of possession or enjoyment as
establishing presumptive rights."

_C. J. Cockburn,
in Bryant v. Foot,
L. R. 2 Q. B., 161;
s. c. (Thayer's Cases on Evidence, 94)._

COMMON LAW: A. D. 1110 (circa).
The King's Peace superior to the Peace of the Subject.

"We find in the so-called laws of Henry I, that wherever men
meet for drinking, selling, or like occasions, the peace of
God and of the lord of the house is to be declared between
them. The amount payable to the host is only one shilling, the
king taking twelve, and the injured party, in case of insult,
six. Thus the king is already concerned, and more concerned
than anyone else; but the private right of the householder is
distinctly though not largely acknowledged. We have the same
feeling well marked in our modern law by the adage that every
man's house is his castle, and the rule that forcible entry
may not be made for the execution of ordinary civil process
against the occupier: though for contempt of Court arising in
a civil cause, it may, as not long ago the Sheriff of Kent had
to learn in a sufficiently curious form. The theoretical
stringency of our law of trespass goes back, probably, to the
same origin. And in a quite recent American textbook we read,
on the authority of several modern cases in various States of
the Union, that 'a man assaulted in his dwelling is not
obliged to retreat, but may defend his possession to the last
extremity.'"

_F. Pollock,
The King's Peace
(Law Quarterly Review, volume 1, pages 40-41)._

COMMON LAW: A. D. 1135.
Abeyance of the King's Peace.

"The King's Peace is proclaimed in general terms at his
accession. But, though generalized in its application, it
still was subject to a strange and inconvenient limit in time.
The fiction that the king is everywhere present, though not
formulated, was tacitly adopted; the protection once confined
to his household was extended to the whole kingdom. The
fiction that the king never dies was yet to come. It was not
the peace of the Crown, an authority having continuous and
perpetual succession, that was proclaimed, but the peace of
William or Henry. When William or Henry died, all authorities
derived from him were determined or suspended; and among other
consequences, his peace died with him. What this abeyance of
the King's Peace practically meant is best told in the words
of the Chronicle, which says upon the death of Henry I. (anno
1135): 'Then there was tribulation soon in the land, for every
man that could forthwith robbed another.' Order was taken in
this matter (as our English fashion is) only when the
inconvenience became flagrant in a particular case. At the
time of Henry III.'s death his son Edward was in Palestine. It
was intolerable that there should be no way of enforcing the
King's Peace till the king had come back to be crowned; and
the great men of the realm, by a wise audacity, took upon them
to issue a proclamation of the peace in the new king's name
forthwith. This good precedent being once made, the doctrine
of the King's Peace being in suspense was never afterwards
heard of."

_F. Pollock,
The King's Peace
(Law Quarterly Review, volume 1, pages 48-49)._

COMMON LAW: A. D. 1154-1189.
Origin of Unanimity of Jury.

"The origin of the rule as to unanimity may, I think, be
explained as follows: In the assise as instituted in the reign
of Henry II. it was necessary that twelve jurors should agree
in order to determine the question of disseisin; but this
unanimity was not then secured by any process which tended to
make the agreement compulsory. The mode adopted was called,
indeed, an afforcement of the jury; but this term did not
imply that any violence was done to the conscientious opinions
of the minority. It merely meant that a sufficient number were
to be added to the panel until twelve were at last found to
agree in the same conclusion; and this became the verdict of
the assise. … The civil law required two witnesses at least,
and in some cases a greater number, to establish a fact in
dispute; as, for instance, where a debt was secured by a
written instrument, five witnesses were necessary to prove
payment. These would have been called by our ancestors a
jurata of five. At the present day, with us no will is valid
which is not attested by at least two witnesses. In all
countries the policy of the law determines what it will accept
as the minimum of proof. Bearing then in mind that the jury
system was in its inception nothing but the testimony of
witnesses informing the court of facts supposed to lie within
their own knowledge, we see at once that to require that
twelve men should be unanimous was simply to fix the amount of
evidence which the law deemed to be conclusive of a matter in
dispute."

_W. Forsyth,
History of Trial by Jury,
chapter 11, section 1._

{1959}

A. D. 1154-1189.
Reign of Law initiated.

"The reign of Henry II. initiates the rule of law. The
administrative machinery, which had been regulated by routine
under Henry I., is now made a part of the constitution,
enunciated in laws, and perfected by a steady series of
reforms: The mind of Henry II. was that of a lawyer and man of
business. He set to work from the very beginning of the reign
to place order on a permanent basis, and, recurring to the men
and measures of his grandfather, to complete an organization
which should make a return to feudalism impossible."

_W. Stubbs,
Select Charters of English Constitutional History,
page 21._

COMMON LAW: A. D. 1164-1176.
Trial by Assize.

"The first mention of the trial by assise in our existing
statutes occurs in the Constitutions of Clarendon, A. D. 1164
[see ENGLAND: A. D. 1162-1170], where it was provided that if
any dispute arose between a layman and a clerk as to whether a
particular tenement was the property of the Church or belonged
to a lay fief, this was to be determined before the chief
justiciary of the kingdom, by the verdict of twelve lawful
men. … This was followed by the Statute of Northampton, A.
D. 1176, which directs the justices, in case a lord should
refuse to give to the heir the seisin of his deceased
ancestor, 'to cause a recognition to be made by means of
twelve lawful men as to what seisin the deceased had on the
day of his death;' and also orders them to inquire in the same
manner in cases of novel disseisin."

_W. Forsyth,
Trial by Jury,
chapter 6, section 3._

COMMON LAW: A. D. 1165 (circa).
Justice bought and sold.

"The king's justice was one great source of his revenue, and
he sold it very dear. Observe that this buying and selling was
not in itself corruption, though it is hard to believe that
corruption did not get mixed up with it. Suitors paid heavily
not to have causes decided in their favour in the king's
court, but to have them heard there at all. The king's justice
was not a matter of right, but of exceptional favour; and this
was especially the case when he undertook, as he sometimes
did, to review and overrule the actual decisions of local
courts, or even reverse, on better information, his own
previous commands. And not only was the king's writ sold, but
it was sold at arbitrary and varying prices, the only
explanation of which appears to be that in every case the
king's officers took as much as they could get. Now we are in
a position to understand that famous clause of the Great
Charter: 'To no man will we sell, nor to none deny or delay,
right or justice.' The Great Charter comes about half a
century after the time of which we have been speaking; so in
that time, you see, the great advance had been made of
regarding the king's justice as a matter not of favour but of
right. And besides this clause there is another which provides
for the regular sending of the king's judges into the
counties. Thus we may date from Magna Carta the regular
administration of a uniform system of law throughout England.
What is more, we may almost say that Magna Carta gave England
a capital. For the king's court had till then no fixed seat;
it would be now at Oxford, now at Westminster, now at
Winchester, sometimes at places which by this time are quite
obscure. But the Charter provided that causes between subject
and subject which had to be tried by the king's judges should
be tried not where the king's court happened to be, but in
some certain place; and so the principal seat of the courts of
justice, and ultimately the political capital of the realm,
became established at Westminster."

_Sir F. Pollock,
Essays in Jurisprudence and Ethics,
page 209._

COMMON LAW: A. D. 1166.
Assize of Clarendon.

See ENGLAND: A. D. 1162-1170.

COMMON LAW: A. D. 1176.
Justices in Eyre.

"It has been generally supposed that justices in Eyre
(justitiarii itinerantes) were first established in 1176, by
Henry II., for we find it recorded that in that year, in a
great counsel held at Northampton, the king divided the realm
into six parts, and appointed three traveling justices to go
each circuit, so that the number was eighteen in all. … But
although the formal division of the kingdom into separate
circuits may have been first made by Henry II., yet there is
no doubt that single justiciars were appointed by William I.,
a few years after the Conquest, who visited the different
shires to administer justice in the king's name, and thus
represented the curia regis as distinct from the hundred and
county courts."

_W. Forsyth,
Trial by Jury,
pages 81-82._

COMMON LAW: A. D. 1189.
Legal Memory.
Its effect.

"No doubt usage for the last fifty or sixty years would be
some evidence of usage 700 years ago, but if the question is
to be considered as an ordinary question of fact, I certainly
for one would very seldom find a verdict in support of the
right as in fact so ancient. I can hardly believe, for
instance, that the same fees in courts of justice which were
till recently received by the officers as ancient fees
attached to their ancient offices were in fact received 700
years ago; or that the city of London took before the time of
Richard I. the same payments for measuring corn and coals and
oysters that they do now. I have no doubt the city of Bristol
did levy dues in the Avon before the time of legal memory, and
that the mayor, as head of that corporation, got some fees at
that time; but I can hardly bring myself to believe that the
mayor of Bristol at that time received 5s. a year from every
ship above sixty tons burthen which entered the Avon; yet the
claim of the city of Bristol to their ancient mayor's dues, of
which this is one, was established before Lord Tenterden, in
1828. I think the only way in which verdicts in support of
such claims, and there are many such, could have properly been
found, is by supposing that the jury were advised that, in
favor of the long continued user, a presumption arose that it
was legal, on which they ought to find that the user was
immemorial, if that was necessary to legalize it, unless the
contrary was proved; that presumption not being one purely of
fact, and to be acted on only when the jury really entertained
the opinion that in fact the legal origin existed. This was
stated by Parke B., on the first trial of Jenkins v. Harvey, 1
C. M. & R. 894, as being his practice, and what he considered
the correct mode of leaving the question to the jury; and that
was the view of the majority of the judges in the Court of
Exchequer Chamber in Shephard v. Payne, 16 C. B. (N. S.) 132;
33 L. J. (C. P.) 158. This is by no means a modern doctrine;
it is as ancient as the time of Littleton, who, in his
Tenures, § 170, says that all are agreed that usage since the
time of Richard I. is a title; some, he says, have thought it
the only title of prescription, but that others have said
'that there is also another title of prescription that was at
the common law before any statute of limitation of writs, &c.,
and that it was where a custom or usage or other thing hath
been used for time whereof mind of man runneth not to the
contrary.
{1960}
And they have said that this is proved by the pleading where a
man will plead a title of prescription of custom. He shall say
that such a custom hath been used from time whereof the memory
of men runneth not to the contrary, that is as much as to say,
when such a matter is pleaded, that no man then alive hath
heard any proof of the contrary, nor hath no knowledge to the
contrary; and insomuch that such title of prescription was at
the common law, and not put out by any statute, ergo, it
abideth as it was at the common law; and the rather that the
said limitation of a writ of right is of so long time past.
'Ideo quaere de hoc.' It is practically the same thing whether
we say that usage as far back as proof extends is a title,
though it does not go so far back as the year 1189; or that
such usage is to be taken in the absence of proof to the
contrary to establish that the usage began before that year;
and certainly the lapse of 400 years since Littleton wrote has
added force to the remark, 'the rather that the limitation of
a writ of right is of so long time past.' But either way,
proof that the origin of the usage was since that date, puts
an end to the title by prescription; and the question comes
round to be whether the amount of the fee, viz. 13s., is by
itself sufficient proof that it must have originated since."

_J. Blackburn,
in Bryant v. Foot, L. R. 2 Q. B., 161,. s. c.
(Thayer's Cases on Evidence, page 88)._

COMMON LAW: A. D. 1194.
English Law Repositories.

"The extant English judicial records do not begin until 1194
(Mich. 6 Rich. I.). We have a series of such records from 1384
(6 Rich. II.). The first law treatise by Glanvill was not
written before 1187. The law reports begin in 1292. The
knowledge of the laws of England prior to the twelfth century
is in many points obscure and uncertain. From that time,
however, the growth and development of these laws can be
traced in the parliamentary and official records, treatises,
and law reports."

_John F. Dillon,
The Laws and Jurisprudence of England and America,
pages 28-29._

COMMON LAW: A. D. 1199.
Earliest instance of Action for Trespass.

"A case of the year 1199 (2 Rot. Cur. Reg. 34) seems to be the
earliest reported instance of an action of trespass in the
royal courts. Only a few cases are recorded during the next
fifty years. But about 1250 the action came suddenly into
great popularity. In the 'Abbreviatio Placitorum,' twenty-five
cases are given of the single year 1252-1253. We may infer
that the writ, which had before been granted as a special
favor, became at that time a writ of course. In Britton (f.
49), pleaders are advised to sue in trespass rather than by
appeal, in order to avoid 'la perilouse aventure de batayles.'
Trespass in the popular courts of the hundred and county was
doubtless of far greater antiquity than the same action in the
Curia Regis. Several cases of the reign of Henry I, are
collected in Bigelow, Placita Anglo-Normannica, 89, 98, 102,
127."

_J. B. Ames,
The Disseisin of Chattels
(Harvard Law Review, volume 3, page 29, note)._

COMMON LAW: A. D. 1208.
Evidence: Attesting Witnesses.

"From the beginning of our records, we find cases, in a
dispute over the genuineness of a deed, where the jury are
combined with the witnesses to the deed. This goes back to the
Franks; and their custom of requiring the witness to a
document to defend it by battle also crossed the channel, and
is found in Glanville (lib. X., c. 12). … In these cases the
jury and the witnesses named in the deed were summoned
together, and all went out and conferred privately as if
composing one body; the witnesses did not regularly testify in
open court. Cases of this kind are found very early, e. g. in
1208-1209 (Pl. Ab. 63, col. 1, Berk.). … In the earlier
cases these witnesses appear, sometimes, to have been
conceived of as a constituent part of the jury; it was a
combination of business-witnesses and community-witnesses who
tried the case,—the former supplying to the others their
more exact information, just as the hundreders, or those from
another county, did in the cases before noticed. But in time
the jury and the witnesses came to be sharply discriminated.
Two or three cases in the reign of Edward III. show this. In
1337, 1338 and 1349, we are told that they are charged
differently; the charge to the jury is to tell the truth (a
lour ascient) to the best of their knowledge, while that to
the witnesses is to tell the truth and loyally inform the
inquest, without saying anything about their knowledge (sans
lour scient); 'for the witnesses,' says Thorpe, C. J., in
1349, 'should say nothing but what they know as certain, i.
e., what they see and hear.' … By the Statute of York (12
Edw. II. c. 2), in 1318, it was provided that while process
should still issue to the witnesses as before, yet the taking
of the inquest should not be delayed by their absence. In this
shape the matter ran on for a century or two. By 1472 (Y. B.
12 Edw. IV. 4, 9), we find a change. It is said, with the
assent of all the judges, that process for the witnesses will
not issue unless asked for. As late, certainly, as 1489 (Y. B.
5 H. VII. 8), we find witnesses to deeds still summoned with
the jury. I know of no later case. In 1549-1550 Brooke,
afterwards Chief Justice of the Common Bench, argues as if
this practice was still known: 'When the witnesses … are
joined to the inquest,' etc.; and I do not observe anything in
his Abridgment, published in 1568, ten years after his death,
to indicate that it was not a recognized part of the law
during all his time. It may, however, well have been long
obsolescent. Coke (Inst. 6 b.) says of it, early in the
seventeenth century, 'and such process against witnesses is
vanished;' but when or how he does not say. We may reasonably
surmise, if it did not become infrequent as the practice grew,
in the fifteenth century, of calling witnesses to testify to
the jury in open court, that, at any rate, it must have soon
disappeared when that practice came to be attended with the
right, recognized, if not first granted, in the statute of
1562-1563 (5 Eliz. c. 9, s. 6), to have legal process against
all sorts of witnesses."

_James B. Thayer,
in Harvard Law Review,
volume 5, pages 302-5,
also in Sel. Cas. Ev.
pages 771-773._

"After the period reached in the passage above quoted, the old
strictness as to the summoning of attesting witnesses still
continued under the new system. As the history of the matter
was forgotten, new reasons were invented, and the rule was
extended to all sorts of writings."

_J. B. Thayer,
Select Cases on Evidence,
page 773._

{1961}

COMMON LAW: A. D. 1215 (ante).
Courts following the King.

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

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

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

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

_Owen Flintoff,
Laws of England,
page 184._

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

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

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

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

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

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

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

For opposite view

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

COMMON LAW: A. D. 1217.
Dower.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_Sydney Hastings,
Treatise on Torts,
page 379._

{1963}

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

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

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

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

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

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

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

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

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

COMMON LAW: A. D. 1292.
Fleta.

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

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

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

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

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

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

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

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

{1964}

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

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

_New American Cyclopædia,
volume 14, page 585._

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

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

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

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

"The Statute 36 Edward III., c. 15, A. D. 1362, enacted that
in future all pleas should be 'pleaded, shewed, defended,
answered, debated, and judged in the English tongue:' the
lawyers, on the alert, appended a proviso that they should be
'entered and enrolled' in Latin, and the old customary terms
and forms retained."

_J. Parke,
History of Chancery,
page 43._

COMMON LAW: A. D. 1368.
Jury System in Civil Trials.