Restraints to his lord. in favor of the lord. Estates tail. First among these feudal restraints stands the clause of the Great Charter which provides that "no freeman from henceforth shall give or sell any more of his land but so that of the residue of the lands the Lord of the fee may have the service due to him which belongeth to the fee." After a long interval this clause of the Great Charter was followed by the statute De donis conditionalibus, by force of which estates tail came into existence. The purpose of this statute was not only to protect the interest of the heir to a conditional estate by restraining its alienation by the ancestor, but also to prevent the defeat of the lord's right of escheat by the alienation of his tenant. By the force of this statute a new species of estates of inheritance came into existence, whose alienation was subject to a twofold restraint in favor of the heir and the lord.2 The great inconvenience which in time resulted from the establishment of this new system of estates was in a great measure modified by a series Taltarum's of legal fictions established in the famous case of Taltarum in 12 Edward IV.3 case. Quia emptores, - Statute of West Third, 1290. The crowning restraint upon alienation in favor of the feudal lords was, however, embodied in the statute of Quia minster the emptores, enacted in the 18 Edward I. in the parliament of 1290. The primary object of this statute was to prevent the loss to the lords of manors caused by the granting out of lands by their tenants to be held of themselves by subinfeudation. In such a case, as there could be no immediate relation of lord and tenant between the chief lord and the alienee, the feudal rights of the former over the land conveyed were consequently diminished. To remedy this evil it was provided in the Statute of Westminster the Third - Quia emptores that in all future conveyances by tenants the alienee, instead of becoming the feudal dependent of the alienor, should simply step into the shoes of the alienor, and 1 Cap. 39 (ed. 1217). "The provision in Magna Carta given above appears to be the only restraint upon alienation of lands in fee simple ever recognized by law in the interest of the lord."Digby, pp. 136, 137. Cf. Coke, Inst., ii. p. 66; Reeves, vol. ii. p. 24. Digby, Law of Real Property, pp. 187-195; Reeves, Hist. Eng. Law, vol. ii. pp. 459–463; Littleton, sec. 13. Year Book, 12 Edward IV. 19. "From this time till 1834 (3 & 4 Will. IV. c. 74) it became the common practice for tenant in tail to suffer a recovery; that is, by a proceeding similar to that adopted in Taltarum's case, to convert his estate into a fee simple.* -Digby, p. 219. fame as a become subject to all the duties and obligations under which he held the land of the chief lord. The statute Quia emp- Edward's tores was the last of that series of remarkable legislative legislator. enactments, whose far-reaching influence in defining and amending the common law has won for Edward the imposing title of the English Justinian. Other important statutes of a political and constitutional character were passed, it is true, in the latter part of the reign, but it is rather to those statutes touching the private rights of individuals, and the general administration of justice, already reviewed, that Sir Matthew Hale alludes when he says that "it appears that the very scheme, mould, and model of the common law, especially in relation to the administration of common justice between party and party, as it was highly rectified and set in a much better light and order by this king than his predecessors left it to him, so in a very great measure it was continued the same in all succeeding ages to this day. So that the mark or epocha we are to take for the true stating of the law of England, what it is, is to be considered, stated, and estimated from what it was when this king left it." 2 com mon law. Long before the organizing and defining hand of Edward Growth of was applied to the task of reducing through the agency of the con legislation the body of the customary law, as modified by the innovations to which the Conquest had given birth, to system and order, two great text-writers had been at work smoothing the path before him. In the reign of Henry II. we have the work of Glanvill, the first English law-book Glanvill. bearing the name of a personal author, which, as a commentary upon the procedure of the curia regis, has been referred to already. The work of Glanvill, which is rather a procedure than a systematic exposition of treatise upon legal the corpus of the common law as it stood in Glanvill's day, was followed at the end of the reign of Henry III. by Brac- Bracton. ton's De Legibus et Consuetudinibus Angliæ. This great 1 Reeves, Hist. Eng. Law, vol. ii. p. 527 seq.; Digby, Law of Real Property, pp. 199-204. This act, though devised in the interest of the lords for the preservation of their estates, really afforded greater facilities for their division, and led to the multiplication of tenants in capite, and of socage tenants also. is one of the few acts of legislation "It which, being passed with a distinct 2 Hist. Com. Law, vol. i. p. 277. 4 As to Bracton's life, of which little work, which even in Coke's time was looked to as the highest source from which a knowledge of the common law could be drawn, is a comprehensive and systematic statement of the whole law of England as it stood when the reign of Edward I. begins. Bracton's great familiarity with the imperial and pontifical jurisprudence, which had already been introduced to some extent into the English system by the clerical judges,1 is manifest not only from his frequent quotations from the Digest, Institutes, and Code of Justinian, but also from his use of definitions and maxims drawn from Roman sources.2 Influence of The tendency thus exhibited by Bracton to enrich the comthe imperial and pontifi- mon law by principles and definitions drawn from the revived Roman jurisprudence was followed by Edward, who was careful to secure the services of the civilian, Francesco Accursi of Bologna, before entering upon the work of legislative reform. For Edward's own reign we have the treaBritton and tises of Britton and Fleta, which do little more than supplement Bracton's work, and adapt the principles which it defines to practical uses. The Mirror of Justices, an anonymous treatise, is generally ascribed to the reign of Edward II. For the reign of Henry VI. we have the treatise De Laudibus Fortescue. Legum Angliæ from the pen of Henry's chancellor, Sir John cal jurisprudence. Fleta. Mirror of justices. Coke. Fortescue, in which the outlines of English law are set forth in the form of a dialogue between the chancellor and the Littleton. prince.5 In the following reign was published Littleton's treatise on Tenures, of which the first part of Coke's Institutes is but a later elaboration. But neither to the work of the legislator, nor to the more or less scientific disquisitions of the early text-writers, must we look for the overshadowing force which for centuries has been organizing and adapting the unclastic system of English law which has grown out of an admixture of Teutonic custom and Norman feudalism to the expanding wants of a progressive society. The great Dr. Carl Güterbock, Berlin, 1862, translated by Coxe, Philadelphia, 1866. Digby, p. 104. 8 See above, p. 406. As to the authorship of Britton, cf. Nicholas' Britton, preface, pp. xviiixxvii. 5 See the Introduction to the Cler mont ed. cisions become a law. organs of interpretation which have given form and consist- Judicial deency to the customary law are the judicial tribunals in which that law has been immemorially administered. The recorded source of decisions of these tribunals have stood not only as expositions. of the existing law as applied to particular cases, but as sources of law from which have been drawn rules of decision which govern in new cases for which there is no precedent.1 In this way "the decisions of the tribunals come to constitute in the strictest sense of the term a source or cause of law. Judge-made or judiciary law henceforth gradually displaces customary law."2 Records of cases adjudicated in the Eng- Records of lish courts are in existence from the time of Richard I., adjudicated and cases exist have been published by the Record Commission, which has from the also lately published four volumes called Year Books, containing the reports of cases decided on the itinera of the justices and at Westminster between the twentieth and thirtysecond years of Edward I. The regular series of reports The Year known as the Year Books begin, however, with the reign of Edward II., and contain reports of cases decided to the end of the reign of Edward III., and from the beginning of the - the reign of Henry IV. to the end of that of Henry VIII., reports of the reign of Richard II. being contained in a volume known as Bellewe's Reports.1 time of Richard I. Books. as an as 9. The constructive genius of Edward, which was first Parliament. employed in the work of organizing and defining the custom-sembly of ary law, is applied, as his reign advances, to the task of estates. organizing and defining the constitution of parliament itself. The process has already been drawn out through which the Old-English witan was silently transformed, after the Conquest, into the feudal councils or courts of the Norman and Angevin kings. Under Henry II. and his sons, the constitution of the national council reached a definiteness of organixxxvii. Blackstone holds that they are the evidence of the common law. Com., bk. i. p. 70. 1 "Il y a quatre sources principales du droit constitutionnel anglais les traités et les quasi-traités, les précédents et usages que l'on désigne ordinairement sous le nom de Common law, les pactes, les statuts ou lois.". M. Boutmy, Etudes de Droit Constitutionnel (Paris, 1885), p. 9. a 2 Digby, Law of Real Property, p. 103. That judicial decisions are source of the common law is the doctrine of Austin. — Jurisprudence, lect. 3 The edition called Rotuli Curia Regis was edited by Sir Francis Palgrave, and published in 1835. The first publication in 1811 bore the name of Placitorum Abbreviatio. 4 Cf. Reeves, Hist. Eng. Law, vol. iii. pp. 73, 443, 570; vol. iv. pp. 24, 160, 225, 561. See, also, Digby, p. 175, and notes. Election and representation. zation which it had never possessed before; through the influence of the practice of summons, the right to attend the national council was limited to those only who were summoned, by the king's writ individually or in a body. How far this practice had developed up to the sixteenth year of John is made clear by the fourteenth article of the Great Charter, which provides that the greater tenants-in-chief, lay and spiritual, shall be summoned individually by special writ, while the minor tenants-in-chief shall be summoned in a body by a general writ addressed to the sheriffs. This provision of the Charter as to the summons of the minor tenants-inchief did not absolutely imply representation, but it recognized a condition of things out of which representation arose as a natural and necessary consequence. The only constitutional mode in which the sheriff could execute the general writ of summons to the minor tenants was in the county court, in whose organization and machinery the principles of election and representation had been imbedded from the earliest times. As heretofore pointed out, the earliest manifestation of the representative principle appears in the form of the reeve and four men who represent the townships in the courts of the shire and the hundred. In the shire court the reeve and four men appeared for each township, the twelve senior thegns for each hundred. The shire court was, therefore, not only a popular but a representative assembly, — a county parliament in which each township and hundred appeared in the persons of its representatives. The representative principle, which survived the Conquest as a part of the machinery of the local courts, never entered, however, into the constitution of the national council prior to the reign of John. Not until that time did the ancient practice of sending the reeve and four men from the township to the shiremoot expand into the practice of sending the "four discreet men" as representatives of the shire to the common council Represen- of the kingdom. For the first time, in the fourteenth year of the shire in John, the writ addressed to the sheriffs provided for the return the national of "four discreet men" from each shire as its representaThus, by a change in the form The shire court. tatives of council. tives in the national council. 1 See above, p. 387. 2 Select Charters, p. 39. 8 See above, p. 143. |