A Concise History of the Common Law. Theodore F. T. Plucknett

fourteenth century, moreover, parliamentary proceedings were often extremely informal, and are by no means always recorded on the rolls; consequently it is most likely that these statutory powers were exercised, if at all, by the little group of administrators and lawyers who formed the kernel of the fourteenth-century Parliaments. Very soon, however, the statute rolls seem regularly to contain express declarations in legislative form as to the extension of old writs to new cases, and it may well be that the form of a statute was chosen because the publicity attaching to it made the reform more quickly effective.²

BILLS OF EXCEPTIONS

      Chapter 31 relates that it sometimes happens that parties who allege an exception which the court overrules have difficulty when they attempt to test the lawfulness of the decision by a writ of error, because the court may not have enrolled the unsuccessful exception. The higher court is therefore unable to pass upon the matter because it is not on the record before them. To remedy this, the statute allows such exceptions to be written down in a “bill” to which the trial judge must affix his seal. If the exception is not enrolled, then the “bill of exceptions” is to be sufficient record for proceedings in error. The chapter shows that the roll is still under the absolute control of the court, which can include or exclude matters in its discretion; it is not surprising that judges said many hard things against the new “bill of exceptions” and more than once flatly refused to seal them.³

THE NISI PRIUS SYSTEM

      Chapter 30 regulated the new system of nisi prius justices, who become more important in practice as a result of many succeeding statutes amending the system in details. In this way it became less necessary for juries from remote parts of the country to undertake the slow and costly journey to Westminster.

In the same year the Statute of Winchester established a system of police by compelling citizens to possess armour according to their means for the defence of the peace. Then the Statute of Merchants (also of 1285) established a system of recording debts and of making land liable to execution, which lasted down to the eighteenth century with some modifications.¹ In 1290 we find the great Statute Quia Emptores which has been rightly called one of the pillars of real property law.

      The burden of foreign war and the Crown’s growing need for money provoked a good deal of unrest, and finally, as the price of a heavy grant of taxes, the King had to confirm the Charters. It was on this occasion (1297) that the Great Charter was first enrolled among the public archives.

EDWARD I AND FEUDALISM

      There is one general aspect of Edward I’s legislation which has especial interest. This is the belief of many historians, expressed in several different forms, that there was something anti-feudal in his policies.² We have already mentioned the fact that the Statute of Marlborough was passed under his influence and is historically part of the great mass of legislation passed in Edward I’s reign, and so we shall consider it together with the statutes of Westminster the first and second, and especially the statute of Quia Emptores. Of the Statute of Marlborough Maitland wrote that “in many respects it marks the end of feudalism”,³ and of Edward’s legislation as a whole Stubbs wrote that it endeavoured to eliminate the doctrine of tenure from political life.⁴ These two statements, sometimes repeated in less guarded language by other historians, deserve more minute examination than can be accorded them at the present moment, but a few general observations can be made.

      It would indeed be a remarkable tribute to the intellectual powers of Edward I if it could be shown that he set his face against the whole pattern of contemporary society as it existed throughout civilised Europe. The demand for a new social structure is common enough in our own day because we have numerous examples, both contemporary and in the history of the last two generations, of revolutionary attempts to remodel society on the lines of military and economic dictatorships, communes, soviets and the like. But it is hard to imagine a statesman of the year 1300 suggesting an alternative to the social structures over which three such legal-minded monarchs as Edward I, Philip the Fair and Boniface VIII presided.

If Edward’s legislation is examined, it will be seen that its general tendency is not to weaken, but to strengthen, the position of feudal lords. Lords must have been grateful for two statutes which gave them immense power over their bailiffs;¹ the feudal rights of wardship and marriage were protected by new civil and criminal procedures;² the default of tenants in paying services (which at this moment left the lord in a very weak position) was for the future visited with the forfeiture of the tenement;³ and lords were also given extended powers of appropriating commons.⁴ Most striking of all, Edward I risked a bitter quarrel with the Church over mortmain in order to prevent lords losing their feudal incidents when land passed to ecclesiastical bodies,⁵ and Quia Emptores itself was designed in order to preserve those same rights of wardship, marriage, relief and escheat.⁶ Continued sub-infeudation would probably have introduced such chaos into the system of tenures that these incidents would have eventually been evaded almost universally, but Quia Emptores perpetuated them. Edward I certainly did a great deal for the feudal lord. But he was not prepared to tolerate abuses, and he was equally active in assuring to tenants their rights. Many great statutes defined the law of distress and replevin,⁷ and the action of mesne (which protected a sub-tenant when his lord defaulted in services to the lord above) was made more practicable.⁸ There seems no escape from the conclusion that this legislation assumed the reasonableness and desirability of the feudal structure, and deliberately strengthened it. The fact that all the incidents of military tenure survived until the sixteenth century, and that the persons interested in them were to enjoy them for an additional century (thanks to the statute of uses), is all testimony to the soundness of the legal structure of feudalism as Edward I left it. His policy in fact was based on that simple and straightforward idea of “justice” which was taken as an axiom in the middle ages—the rendering to every man his own. Edward assured to the tenant the peaceful enjoyment of his lands with the same impartial justice as he confirmed to the lord the fruits of his seignory.

EDWARD II AND THE ORDINANCES

The troubles which began in the reign of Edward I became chronic under his son, Edward II (1307-1327), and once again an attempt was made by a series of “Ordinances” (1311) to put the Crown under the domination of a group of barons.⁹ For a time they were successful, but in the end a counter-revolution repealed the Ordinances by the famous Statute of York (1322). This Statute contains the important declaration that matters relating to the estate of the King and the country must be agreed upon by the prelates, earls, barons and commons in parliament. It has been very persuasively argued¹ that this statute already shows a feeling that matters which would now be called “constitutional” ought to be reserved for very special deliberation in a parliament which contained commons as well as lords. In any case,

      “it is not too much to say that one result of the reign of Edward II was the establishment of the practice of regarding only those parliaments as true parliaments which contained representatives of the commons”.²

EDWARD III: THE BLACK DEATH

      The tragic ending of the reign and the mysterious death of the unfortunate Edward bring us to the reign of his son, Edward III (1327-1377), and a period of fifty years of uneasy tension. Once again we find the Charters solemnly confirmed in 1352. The middle of his reign was marked by a series of fearful calamities which have left their mark upon society and the law. The nation was already weakened by a succession of famines when the arrival of the Black Death (1348-1349) from the East wrought a revolution in social and economic conditions. The terrible mortality from this plague completely disorganised the manorial system, which had hitherto depended upon a plentiful supply of labour born and bred within the manor. The plague accelerated and intensified forces which were already at work, and the result was a very serious depletion of the labour supply. The population of the manor was no longer sufficient