The History of English Law before the Time of Edward I. Frederic William Maitland

our medieval law is over. Very characteristic of our thirteenth century is it that when there is talk of legitimation per subsequens matrimonium, the champion of the common law is a canon of St. Paul’s, William Raleigh, who is going to be a bishop and somewhat of a martyr, whose name is to be joined with the names of Anselm and Becket.⁹² These royal clerks have two sides; they are clerks, but they are royal. It would not surprise us to discover that Martin Pateshull, justice of [p.113] the Bench, had prohibited Martin Pateshull, archdeacon of Norfolk, from meddling with lay fee. But as archdeacon he was bound to have a decent acquaintance with the canon law, and as justice he could not forget what he knew as archdeacon. In the second half of Richard’s reign Hubert Walter, the chief justiciar of England, who sat day by day at Westminster, was also the Archbishop of Canterbury. A spiteful tongue has told us that he was no great Latinist, that he could be guilty of “Tres sunt species cautionis, fideiussoriam, iuratoriam, pignoraticiam” and the like;⁹³ still, though we can suppose that this busy primate of England was not deeply read in the Decretum, he must have heard a great deal of Decretum and Code and Digest, even before his prolonged struggle with the Canterbury monks and their Pillius and their Ugolino.

English law administered by ecclesiastics.We attribute to these clerical justices in general no more than a superficial acquaintance with the canon law, an acquaintance with its main principles and with its methods. But this much we must attribute to them, and it means a great deal. Let us conceive a man, whose notion of law and the logic of law is that which is displayed in the Leges Henrici, coming upon a glossed version of the Decretum, or still better upon some Summa such as that attributed to William of Longchamp. His whole conception of what a law-book, what a judgment should be, of how men should state law and argue about law, must undergo a radical change. Viewed therefore from one point, the effect produced on English law by its contact with the romano-canonical learning seems immeasurable, or measurable only by the distance that divides Glanvill’s treatise from the Leges Henrici.

Nature of the canonical influence.Law, it may be said, is one thing and the expression of law another. But we can hardly, even in thought, divorce the matter of law from its form. Old traditional rules must lose their old meaning so soon as men attempt to weave them into a reasonable system. English law, more especially the English law of civil procedure, was rationalized under the influence of the canon law. Here and there we may note a plain case in which the one system has borrowed a [p.114] whole set of rules from the other. Thus Glanvill tells us that the “exceptions,” or as we should say the “challenges,” which can be made against jurors are the same as the exceptions which can be made against witnesses in the courts Christian.⁹⁴ Here a whole chapter of law, which in the hands of the canonists is already becoming a bulky chapter, is borrowed. Such instances, however, are rare, and this instance is typical and instructive. Our English jurors are already very unlike, and are becoming more unlike, the canonical testes; and they will not be made any more like the canonical testes by the application to them of these rules about exceptions or challenges. Another mass of rules is borrowed. The elementary outlines of the science of pleading can only be expressed in terms familiar to civilians and canonists. In any case we must begin by saying that “of exceptions (special pleas) some are dilatory, while others are peremptory.”⁹⁵ But in our lay courts a distinctive form is given to these rules by the mode of trial which prevails there, the trial by jury, and before long the canonist will hardly be able to understand the English lawyer’s doctrine of special pleas. The assize of novel disseisin is suggested by the actio spolii; but it is not the actio spolii. Our English law shows itself strong enough to assimilate foreign ideas and convert them to its own use. Of any wholesale “reception” of Roman law there is no danger. From the day at Clarendon onwards it is plain that we have many consuetudines which must be maintained in the teeth of leges and canones. The king’s justices, more especially those of them who are clerks, become interested in the maintenance of a system that is all their own. From time to time the more learned among them will try to attain a foreign, an Italian, standard of accuracy and elegance; they will borrow terms and definitions, they will occasionally borrow rules; but there must be no dictation from without. The imperial laws as such have no rights in England; the canon law has its proper province and should know its place.

CHAPTER VI

       The Age of Glanvill

The work of Henry II.The reign of Henry II. is of supreme importance in the history of [p.115] our law, and its importance is due to the action of the central power, to reforms ordained by the king.¹ Still it was rather as an organizer and governor than as a legislator that Henry was active. He issued no code; we may even doubt whether he published any one new rule which we should call a rule of substantive law; but he was for ever busy with new devices for enforcing the law. Much of what he did, much that was to determine the fate of our law in after ages, was done in an informal fashion without the pomp of legislation. A few words written or but spoken to his justices might establish a new mode of procedure. There would be nothing to be proclaimed to the world at large, for in theory there was no change in the law; and yet very surely the whole law of England was being changed both in form and in substance. To this administrative character of his reforms we may ascribe our lamentable lack of documentary evidence. New laws demanding the obedience of all his subjects would have been preserved; but a mere instruction given to his justices might not be embodied in any formal instrument and might well escape the notice of the most punctual chronicler. And so it came about that in a very short time many of the results of his activity were regarded, not as the outcome of ordinances, but as part and parcel of the traditional common law. A few ordinances or “assizes,” [p.116] those which seemed most important to his contemporaries, found their way into the texts of the chroniclers; some have been recovered of late years out of almost unique manuscripts; but we have every reason to fear that others have been irretrievably lost.

Constitutions of Clarendon.The first great legal monument of the reign is, however, no ordinance. In 1164, when the dispute with Becket was waxing hot, Henry held a council at Clarendon and there caused a “recognition and record” to be made of certain of those customs, liberties and dignities that his ancestors had enjoyed. He called upon his nobles to declare the law of the realm as to the matters that were in debate between church and state. Their declaration of the king’s customs was put into a written, document, known to us as “the Constitutions of Clarendon,” and to this the bishops were required to append their seals.² Henry was not legislating; according to his own theory he was playing a conservative part and relying upon prescriptive right. He demands a definition of the old law and then tenders this to the prelates as a concordat. Not long afterwards, probably in the first months of 1166,Assize of Clarendon. he was again holding an assembly at Clarendon and “by the counsel of all his barons” he issued an assize which made great changes in the administration of the criminal law. Whether this was intended to be a permanent measure or was merely to serve as an instruction for the justices who were just being sent out to hold an eyre, we cannot say for certain, but it was sufficiently new and stringent to require the consent of the magnates. We have, however, some reason for believing that on this same occasion Henry took another step which was to be of equal importance with that which is recorded by the words of our extant “Assize of Clarendon,” that he issued—it may be merely by way of instruction to his justices—an Assize of Novel Disseisin which in course of time was to mould the whole history of our civil procedure and to cut deeply into the body of our land law. The words of this ordinance or instruction have not come down to us; very soon they were concealed from view by the case-law which had grown up around them.Inquest