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

meaning, have become hopelessly antiquated. For in brief it means this, that the king is and shall be below the law.¹²⁴

CHAPTER VII

       The Age of Bracton

Reign of Henry III.The reign of Henry III. (1216–72) is in the history of our law an [p.153] age of rapid, but steady and permanent growth. At the end of that period most of the main outlines of our medieval law have been drawn for good and all; the subsequent centuries will be able to do little more than to fill in the details of a scheme which is set before them as unalterable. It is difficult for any historian not to take a side in the political struggle which fills the reign, the simmering discontent, the loud debate and the open rebellion; and the side that he takes will probably not be that of the feeble, wilful and faithless king. But even at the worst of times law was steadily growing. Henry’s tyranny was the tyranny of one who had a legal system under his control; it was enforced by legal processes, by judgments that the courts delivered, by writs that the courts upheld. And on the other side there was little lawlessness. Not only was it in the name of law that the nation rose against the king, but no serious attempt was made to undo the work of his courts and his chancery. If only the nation at large, the universitas regni, could obtain some share in the control over this great machine, its pressure might be patiently borne. But, leaving the political and constitutional events of the reign for others, we, placing ourselves at the end, will make a brief survey of what has been done in the realm of law.

General idea of law.Our English lawyers have no philosophy of law, nor have they pursued very far the question, How does law, or a law, come into being? The opening chapters of Justinian’s Institutes were known. The sentences which define iustitia, iurisprudentia, ius naturale, ius [p.154] gentium, ius civile, and so forth, were copied or imitated; but, any real knowledge of Roman history being still in the remote future, these sentences served as a check upon, rather than as an incentive to, rational speculation. In practice there is no careful discrimination between ius and lex; the whole mass of legal rules enforced by the English temporal courts can be indicated by such phrases as ius regni,¹ lex regni,² lex terrae,³ ius et consuetudo regni,⁴ lex et consuetudo, leges et consuetudines, lei de la terre, lei et dreit de la terre.⁵ Of course ius, lex and consuetudo are not in all contexts exactly equivalent words; ius and the French dreit often stand for “a right”;⁶ lex and lei are technically used to signify the various modes of proof, such as the oath, the ordeal, the judicial combat.⁷ Glanvill and Bracton make some apology for giving the name leges to the unwritten laws of England;⁸ Bracton can upon occasion contrast consuetudo with lex.⁹ Of course too it is necessary at times to distinguish a new rule lately established by some authoritative act, from the old rules which are conceived as having been in force from time immemorial. The rule in question has its origin in a royal decree or edict, in a novella constitutio of the princeps,¹⁰ in “provisions” made by the king with the common counsel of his prelates and nobles, [p.155] in an assize, or when we speak in English in an “isetnysse”¹¹—the word “statute” is hardly yet in common use¹²—we may even have to say of some unprincipled rule that it is to be explained only by reference to the will of the legislator.¹³ But as yet there is no definite theory as to the relation between enacted and unenacted law, the relation between law and custom, the relation between law as it is and law as it ought to be. The assizes of Henry II. have worked themselves into the mass of unenacted law, and their text seems already to be forgotten. On the other hand, the writer of Edward I.’s day, who is known to us as Britton, can represent the whole law as statutory: it all proceeds from the king’s mouth. The king’s justices seem to claim a certain power of improving the law, but they may not change the law.¹⁴ The king without the consent of a national assembly may issue new writs which go beyond the law, but not new writs which go against the law.¹⁵

Common law.The term common law (ius commune, lex communis, commun dreit, commune lei) is not as yet a term frequent in the mouths of out temporal lawyers. On the other hand, ius commune is a phrase well known to the canonists. They use it to distinguish the general and ordinary law of the universal church both from any rules peculiar to this or that provincial church, and from those papal privilegia which are always giving rise to ecclesiastical litigation. Two examples may suffice. Innocent III. tells the bishops of London and Ely that the guardianship of vacant churches in the diocese of Canterbury belongs to the archdeacon, both by common law and by the general custom of the English church.¹⁶ In 1218 papal delegates [p.156] report that the Bishop of Salisbury asserts a right to the church of Malmesbury both under the common law and by virtue of a papal privilege.¹⁷ But in truth the phrase was usual among the canonists, and they had warrant in ancient Roman texts for the use that they made of it.¹⁸ From the ecclesiastical it would easily pass into the secular courts. A Bishop of Salisbury in 1252 tells the pope how, acting as a papal delegate, he has decided that the common law makes in favour of the rector of one church and against the vicar of another. The common law of which he speaks is the common law of the catholic church; but this bishop is no other than William of York, who owes his see to the good service that he has done as a royal justice.¹⁹ In connexion with English temporal affairs we may indeed find the term ius commune in the Dialogue on the Exchequer: the forest laws which are the outcome of the king’s mere will and pleasure are contrasted with the common law of the realm.²⁰ A century later, in Edward I.’s day, we frequently find it, though lex communis (commune lei) has by this time become the more usual phrase. The common law can then be contrasted with statute law; still more often it is contrasted with royal prerogative; it can also be contrasted with local custom: in short it may be contrasted with whatever is particular, extraordinary, special, with “specialty” (aliquid speciale, especialté).²¹ When Bracton speaks of common law or common right—and this he does but very rarely—it is to distinguish from rights which have their origin in some specially worded contract or donation, those rights which are given to all [p.157] men by the law of the land.²² It is not until there is a considerable mass of enacted law, until the king’s exceptional privileges are being defined, until the place which local custom is to have in the legal system is being fixed, that the term becomes very useful, and it is long before the lawyers of the temporal courts will bear the title “common lawyers,” or oppose “the common law” to “the law of holy church.”²³

Statute law.The mass of enacted law is as yet by no means heavy. As we have said above, the assizes of the twelfth century seem to be already regarded as part of the unenacted ancient law. No one is at pains to preserve their text. As to the Anglo-Saxon dooms, though men are still at times copying and tampering with the Latin versions of them, they are practically dead, and will remain almost unknown until in the sixteenth century William Lambard unearths them as antiquarian curiosities.²⁴ We have in manuscript many collections of statutes transcribed in the days of the two first Edwards: they seldom, if ever, go behind Magna Carta. That Charter takes its place as the first chapter of the enacted law; but, as is well known, its text is not exactly that which John sealed at Runnymead in 1215.The charters. Important changes were made when it was reissued in 1216; other important changes were made in 1217, and a few minor changes in [p.158] 1225. The charter granted by Henry in 1225, when he had lately attained his majority, became the Magna Carta of future times.²⁵ He had to confirm it repeatedly. These repeated confirmations tell us how hard it is to bind the king by law. The pages of the chroniclers are full of complaints that the terms of the charter are not observed.