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

gave to the churches the right to elect their prelates. If on the one hand the king is apt to regard the charter as a mere promise from which, if this be necessary, the pope will absolve him, on the other hand efforts are made to convert every one of its clauses into a fundamental, irrepealable law. In 1253 with solemn ceremonial the anathema was launched, not merely against all who should break the charter, but also against all who should take any part whatever, even the humble part of mere transcribers, in making or promulgating or enforcing any statutes contrary to the sacred text.²⁶ This theoretical sanctity and this practical insecurity are shared with “the Great Charter of Liberties” by the Charter of the Forest, which was issued in 1217.

Provisions of Merton Westminster and Marlborough.The first set of laws which in later days usually bears the name of “statute” is the Provisions of Merton issued by the king with the consent of the prelates and nobles in 1236 on the occasion of his queen’s coronation: a few brief clauses amend the law about divers miscellaneous matters.²⁷ From the time of storm and stress we have the Provisions of Westminster to which the king gave a reluctant consent in 1259.²⁸ He did not hold himself bound by them; they never became a well established part of the law of the land; but in 1267, when the revolutionary period was at an end, almost all of them were reenacted with the consent of great and small as the Provisions or Statute of Marlborough.²⁹ These four documents, the two Charters, the Provisions of Merton and of Marlborough, are [p.159] the only documents of Henry’s reign which are generally regarded in after ages as parts of the written law, though to these we may perhaps add the Dictum of Kenilworth issued in 1266 (an essentially temporary provision relating to the punishment of the insurgents),³⁰ and a writ of 1256, which has sometimes been dignified by the title “the Statute of Leap Year”; it deals with a small matter, the computation of the “excrescent” day of the bissextile.³¹ But it is only in retrospect that the quantity of legislation that there has been appears so small. As yet there is no easily applicable external test by which we can distinguish the solemn statute from the less solemn ordinance. From Henry’s reign we have neither a “statute roll” nor any “rolls of parliament”; and we have no reason to believe that any such records were kept.³² Copies of the two charters were sent about the country; the only authoritative record that we have of the Provisions of Merton is a writ upon the close roll; the only authoritative records that we have of the Provisions of Westminster are writs upon the close and patent rolls, and upon those rolls and the judicial rolls of the king’s court we find traces of other legislative acts, which for one reason or another did not permanently gain the character of statutes.³³

[p.160]Ordinance and Statute. And if merely formal tests fail us, so also will more material tests. Of course we cannot in dealing with Henry’s day insist that a statute must be enacted with the consent of the three estates of the realm; we may be certain that the third estate was not represented at Merton, and may gravely doubt whether it was represented at Marlborough. On the other hand, we may take it as generally admitted that the king cannot by his mere word make law. If he legislates, this must be by the counsel of the prelates and nobles; even if he ordains, this should be by the counsel, or at least with the witness, of his habitual counsellors.³⁴ But it is not easy to mark off the province of ordinances from the province of laws. In 1253 Henry issued an ordinance for the maintenance of the peace; it contained little, if anything, that was very new. Matthew Paris tells us that he wished to add to it something that was new, foreign, Savoyard. He wished to give to one who was robbed, an action against those whose duty it was to pursue the robbers; apparently he wished to do what his son did successfully by the statute of Winchester. Perhaps he desired to imitate an edict issued by his father-in-law Count Raymond of Provence in 1243.³⁵ But he had to withdraw this part of his decree, because so large a change in the law could not be made without the common assent of the baron-age.³⁶ But between large changes and small, between changes and ameliorations, between laws and rules of procedure, no accurate lines could be drawn.

The king below the law.That the king is below the law is a doctrine which even a royal justice may fearlessly proclaim.³⁷ The theory that in every state there must be some man or definite body of men above the law, some “sovereign” without duties and without rights, would have been rejected. Had it been accepted in the thirteenth century, the English kingship must have become an absolute monarchy, for nowhere else than in the person of the king could the requisite “sovereignty” have been found. But, for one thing, nobody supposed that the king even with the consent of the English prelates and barons [p.161] could alter the common law of the catholic church. If the theory of sovereignty popular among Englishmen of our own day be pressed upon the reluctant middle ages, the whole of Western Christendom must be treated as one state.³⁸ Theology can be brought in to explain or to conceal any difficulty that there may be in the conception of a king, who though subject to no man, is subject to the law:—God is subject to law, and has even made himself subject to the law for man.³⁹ The practical question is whether there is any mode in which the law can be enforced against the king. That no ordinary process of his courts will touch him is admitted.⁴⁰ For a while men speculate as to whether in an extreme case the Earl of Chester as count of the palace may not have some coercive power over the king.⁴¹ A more acceptable solution, especially when these palatine counts have died out, is that the incorporate realm represented by the baronage may judge the king in his own court, if the worst come to the worst.⁴² But there is no established orderly method whereby this can be accomplished, and the right to restrain an erring king, a king who should be God’s vicar, but behaves as the devil’s vicar,⁴³ is rather a right of revolution, a right to defy a faithless lord and to make war upon him, than a right that can be enforced in form of law. The result of the barons’ war is to demonstrate that though the king is not above the law, the law has no means of punishing him, and no direct means of compelling him to make redress for the wrongs that he has done.

Unenacted law and custom.The unenacted part—and this is the great bulk—of the law [p.162] seems to be conceived as custom (consuetudo). The most important of all customs is the custom of the king’s court. The custom may be extended by analogical reasoning; we may argue from one case to another case which is similar though not precisely similar.⁴⁴ On the other hand, we should be assigning far too early a date for our modern ideas, if we supposed that the law of the thirteenth century was already “case-law,” or that a previous judgment was regarded as “a binding authority”; it would but be an illustration of the custom of the court. Bracton achieved the marvellous feat of citing some five hundred cases from the judicial rolls. But Bracton stands quite alone; his successors Fleta and Britton abbreviate his work by omitting the citations. By some piece of good fortune Bracton, a royal justice, obtained possession of a large number of rolls. But the ordinary litigant or his advocate would have had no opportunity of searching the rolls, and those who know what these records are like will feel safe in saying that even the king’s justices cannot have made a habit of searching them for principles of law. Again, we may see that Bracton had not our modern notions of “authority.” He has told us how he set himself to peruse the ancient judgments of the just because his ignorant and uneducated contemporaries were misrepresenting the law; he appealed from them to the great men of the past, to Martin Pateshull and William Raleigh.⁴⁵ On rare occasions specific precedents (exempla) may have been alleged in court;⁴⁶ in Edward I.’s day the pleaders are already citing and “distinguishing” previous cases;⁴⁷ but as a general rule the judges, assisted by clerks, who were on their way to become judges, would regard [p.163] themselves as having an implicit knowledge of the consuetudo curiae and would not feel bound to argue about past cases. The justices of the bench would often be fully justified in behaving thus; many of them were experienced men who had worked their way upwards through all the ranks of the king’s court and chancery. And so even the knights who were