selection and generalization of existing customs, and their establishment through a uniformly followed course of decisions vigorously enforced, there grew up in England a body of law native to the soil, familiarized by use, and scientifically developed by a learned profession. It was the existence of a strongly sanctioned and well developed native law which enabled England alone of the countries of Europe to withstand the increasing pressure brought to bear by the learning of the day upon the courts to adopt the Roman law as the standard of their decisions.

49. Growth of legal doctrine.-In Henry's day almost the whole law of landed property was administered in the king's courts. One great enlargement of their field took place during this reign: this was the invention of the writ of trespass, which greatly extended the protection already given by the king's courts to the possession of land through the possessory assizes. The courts invoked the doctrine that any interference, however slight, with possession not only of land but of movable property, might be a breach of that peace of the realm which it was the king's prerogative to protect. Hence, when such interference occurred, the person wronged could complain to the king and secure a writ of trespass, under which the wrongdoer would be summoned by the sheriff, fined and outlawed, and from his goods compensation awarded to the injured party. The advantages of procedure and remedy drew the business into the King's Court, and the introduction of an element of compensation to the victim as well as

of punishment indicated the beginning of the distinction between the law of crime and that of tort. More slowly and vaguely still the law of contract, aided by the processes of the ecclesiastical courts, was emerging from the writ of debt, which was a byproduct of the writ of right.

CHAPTER VII.

THE ENLARGEMENT OF THE COMMON LAW.

50. Legislation a source of law. Next to that of Henry II, the name of Edward I (1272-1307) is the greatest in the history of the formative period of our common law. Like Henry he was a great administrator and organizer, and he possessed something of the same legal turn of mind. His most important work was the organization of the great Council of the nation into a regularly functioning organ of the government. In his reign Parliament developed into something like its present form. To its original constituents, the great lords, both lay and clerical, Edward added definitely representatives of the other classes of his people who enjoyed political rights: the lesser barons, the knights of the shire, and the citizens and burgesses of the towns. Legislation now began to be a prolific source of law; and the conception began to grow that the accredited organ of the state in formulating new law was Parliament rather than any administrative power. The statutes of Edward's reign are of the most fundamental and far-reaching character, covering indeed the whole field of the law, private as well as public: making radical alterations in the existing law, establishing new rules, and even undertaking a systematic arrangement of the whole body of law. Their result was to elaborate and com

plete the work initiated by Henry II. The work of concentrating the administration of justice in the royal courts was all but perfected in a notable series of statutes. The Statute of Gloucester (1278) set limits to the jurisdiction of the feudal courts over freeholders, and fixed the jurisdiction of the county courts at claims for less than forty shillings. The Statute of Mortmain (1279) forbade the alienation of any land to the Church without the consent of the king—a serious check to the growth of ecclesiastical power; and a later statute, while acknowledging a rather large jurisdiction in the church courts, established the right of the royal courts to check any excess of this jurisdiction, by a writ of prohibition. The Statute of Winchester (1285) by establishing a national system of police enabled the crown more effectively than ever before to maintain the peace and order of the realm.

51. The limits of common law jurisdiction.-Certain classes of cases still fell outside the sphere of the common law: those recognized as within the jurisdiction of the church courts, and those arising in foreign transactions or occurrences on the high seas-matters felt to be territorially outside the field of the common law jurisdiction, since the common law was a law for the king's subjects and the king's realm. Moreover, the crown and the Parliament never lost entirely their judicial functions. The king in council retained the power to do justice in extraordinary cases, which was a part of the original prerogative of the crown; and Parliament also derived from the council, of which it was in theory a

development, a power, at first, of original jurisdiction, to hear grave and important causes and to answer petitions. Gradually this power shrank to a jurisdiction in error from the common law courts, and became specialized in the House of Lords. The House of Lords is still the ultimate appellate tribunal. of the British system.

52. The development of the land law. The successful establishment of a practically exclusive jurisdiction over freehold land in the royal courts had deprived the system of tenure of most of its political significance. Land was prized as a source of revenue rather than as a source of military or political strength. Hence the interests of the king, himself the largest landowner in the realm, and of his tenants-in-chief, the greater barons, were to a large extent identical; and the land legislation of the period seems to have been designed to protect the interests of the king and his chief tenants as landlords. Two important statutes sought to prevent the utilization to the detriment of the feudal overlord of those new interests in land which had been developing as its commercial value rose into prominence. The clause De Donis (concerning gifts) in the Second Statute of Westminster (1285) favored the system, so important in English law, of entailing estates. It forbade a tenant for life from selling his estate. The land could pass only to his lawful heir; or if there were no heir it "escheated," or fell back into the hands of his feudal overlord. The statute Quia Emptores (1290)-so named from its opening words, "Whereas purchasers"-forbade subtenants to