The History of English Law before the Time of Edward I. Frederic William Maitland
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“feet of fines” (documents which tell us of the compromises, the final concords, made in the king’s court) begins in 1195. The chancery then takes up the tale; all that goes on therein is punctually recorded upon the charter, patent, close and fine rolls. The historian of law and constitution has no longer to complain [p.148] of a dearth of authentic materials; soon he is overwhelmed by them.98
Richard’s reign and John’s.Richard’s reign, despite the exciting political struggles which filled its first years, was on the whole a time of steady if oppressive government, and the same may be said of so much of John’s reign as had elapsed before he quarrelled with the church. The system created by Henry II. was so strong that it would do its work though the king was an absentee.The central court. Term after term, at least from 1194 onwards, a strong central court sat at Westminster. Until the middle of 1198 its president was the archbishop Hubert Walter, and shortly after he had resigned the justiciarship he became chancellor. During the autumn term of 1196, to take one example, we may see him presiding in court on October 13, 15, 17, 18, 19, 21, 22, 24, 28, 29, 30, November 4, 6, 12, 13, 14, 18, 20, 21, 22, 23, 27, 28, 29 and December 1, 2, 3, 4 and 6, until we wonder when he found time for the duties of his archiepiscopate.99 As justiciar he was succeeded by a lay baron, Geoffrey Fitz Peter, who held the office until his death in 1213; he is one of the first of English laymen who is famed for his knowledge of law.100 Another layman who comes to the front as a great judge is Simon Pateshull;101 he may well have been the father of the yet more celebrated Martin Pateshull whom Bracton revered.102 Already in 1202 the king’s justices are officially styled “justices learned in the law.”103 But the court was still full of bishops, archdeacons and other clerks; for example, three successive bishops of London, Richard Fitz Neal, William of S. Mère Église, and Eustace of Fauconberg, were men who had done much justice for the king. During the reign of Richard, who paid but two brief visits to this country, it is of course an unusual thing to find the king presiding in person, though undoubtedly he did so while he was here; the court therefore shows no tendency to become two courts. But John [p.149] liked to do justice, or what he called justice, and during his reign he was often travelling about the country with one party of judges in his train, while another party of judges headed by the chief justiciar was seated on the Bench at Westminster.104 The permanent central tribunal is beginning to split itself into two tribunals, one of which follows the king, while the other remains at the Bench, and a series of small changes is completing the severance between the court and the exchequer. But at present all these arrangements are of a temporary character.
Itinerant justices.The counties also were visited from time to time by itinerant justices. Apparently they were sometimes armed with ampler and sometimes with less ample powers. There was a great eyre in 1194, and the articles issued to the justices on that occasion are the most important edict of the period.105 There was little that we could call legislation;Legislation. an ordinance of 1195 enforced the ancient rules for the pursuit of malefactors;106 in 1197 an assize of measures was issued,107 in 1205 an assize of money.108 Richard’s curious laws for the fleet of crusaders, under which thieves are tarred and feathered, deserve a passing word,109 and ordinances of John’s reign began the extension of English law over those parts of Ireland which were subject to his power.110 But it was rather by decisions of the courts and by writs penned in the chancery that English law was being constructed. A comparison of a collection of formulas which Henry III. sent to the Irish chancery in 1227 with Glanvill’s treatise shows us that the number of writs which were to be had as of course, had grown within the intervening forty years.111 A new form of action might be easily created. A few words said by the chancellor to his clerks— “Such writs as this are for the future to be issued as of course”— would be as effectual as the most solemn legislation.112 As yet there would be no jealousy between the justices and the chancellor, nor would they easily be induced to quash his writs.
The Great Charter.It is not for us here to relate the events which led to the exaction [p.150] and grant of the Great Charter, to repeat its clauses, or even to comment on all the general characteristics of that many-sided instrument. In form a donation, a grant of franchises freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, a treaty which threatens him with the loss of his land if he will not abide by its terms, it is also a long and miscellaneous code of laws.113 Of course it is not long when compared with a statute of the eighteenth century; more words than it contains have often been spent upon some trifling detail. But, regard being had to its date, it is a lengthy document.114 Every one of its brief sentences is aimed at some different object and is full of future law. The relative importance of its various clauses historians will measure by various standards. It is a great thing that the king should be forced to promise that no scutage shall be levied save by the common counsel of the realm, and that an attempt should be made to define the national assembly.115 It is a great thing that he should be forced to say, “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any wise destroyed, save by the lawful judgment of his peers or the law of the land.”116 But events will show that some of these celebrated clauses are premature, while others are vague and can be eluded. In the end the very definite promises about smaller matters—promises which are also laws—are perhaps of greater value. Precise limits are set to royal claims in strict terms of money, time and space:—the relief for a knight’s fee is not to exceed one hundred shillings; the king will hold the felon’s land for a year and a day and no longer; all weirs in the Thames, in the Medway or elsewhere in England, save along the coast of the sea, shall be destroyed.117 Such provisions can be enforced by courts of law, which can hardly enforce against the [p.151] king his covenant that he will not sell or delay or deny justice, and that he will appoint as judges only those who know the law.118
Restorative character of the charter.On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing. In several instances we can prove that the rule that is laid down is one that was observed during the early part of his reign.119 In the main the reforms of Henry II.’s day are accepted and are made a basis for the treaty. So successful have the possessory assizes been, that men will not now be content unless four times in every year two royal justices come into every county for the purpose of enforcing them.120 In a few cases there is even retrogression. Every class of men is to be conciliated. The vague large promise that the church of England shall be free is destined to arouse hopes that have been dormant and cannot be fulfilled.121 The claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions is acknowledged; Henry II. would hardly have been forced into such an acknowledgment, and it does immeasurable harm to the form of English law, for lawyers and royal justices will soon be inventing elaborate devices for circumventing a principle which they cannot openly attack.122 Even in the most famous words of the charter we may detect a feudal claim which will only cease to be dangerous when in course of time men have distorted their meaning:—a man is entitled to the judgment of his peers; the [p.152]king’s justices are no peers for earls or barons. Foreign merchants may freely come and go; they may dwell here and buy and sell; yes, but all cities and boroughs are to enjoy all their franchises and free customs, and often enough in the coming centuries they will assert that their dearest franchise is that of excluding or oppressing the foreigner.123 And yet, with all its faults, this document becomes and rightly becomes a sacred text, the nearest approach to an irrepealable “fundamental statute” that England has ever had. In age after age a confirmation of it will be demanded and granted as a remedy for those oppressions from which the realm is suffering, and