dents made notes of the arguments of counsel and the reasons for the decisions in the cases which they heard in the courts. Collections of these notes, some of them perhaps made by young students, and others by practicing lawyers, and handed down from one to another, constitute, according to the prevailing theory, the long series of rough reports of cases known as the Year Books. In the legal text-books of Edward's time also appears the narrow and intense practicality which was valued in the legal profession. They are mere commentaries on writs or discussions of other elements of procedure. As Professor Holdsworth says: "The Common Law is becoming a special subject, known only to the practitioners of the royal courts, and the principal need of the practitioner is for some simple information as to the rules of court. The law itself lies beyond. The rank and file of the profession, immersed in the routine of practice, never attain to a conception of law as a reasonable and logical science." 19 56. The ossification of the common law. The reign of Edward marks the culmination of a great period in the history of our law. In this period the conception of the function of law had broadened from a mere preservation of the peace and order of society to the conscious provision of remedies for wrongs. Bracton laid it down as law that there was a writ for every form of action.20 But as we have seen, even before the end of Edward's reign this was no longer true. At the moment of its precocious 19 Holdsworth, History of English Law, vol. II, p. 272. maturity the common law had begun to ossify. It was self-limited by technical rules as to jurisdiction which excluded from its control the foreign merchants and the growing commerce of the sea. It was unwilling to grant relief except where the wrong complained of could be brought within the purview of some established writ, either a writ of course or, if new, one sanctioned by Parliament. The development of the jury system has led, in many ways too intricate for discussion here,21 to the growth of an elaborate, highly technical system of pleading, the refinements of which tended to delay and often entirely to frustrate justice. The judges were jealously watched by barons and commons for fear that their decisions might be biased by the fact that they were royal appointees. The surest safeguard against favoritism was adherence to a definite and rigid rule provided by statute or by earlier decisions. Thus straitened, the administration of justice became more and more formal. If the letter of the rule was satisfied the moral aspects of the case in litigation were quite disregarded. The substance of the law was being developed not in the large by theoretical discussion and generalization, or even, after Edward's reign, by any far-reaching legislative changes, but by very slow degrees and very short steps taken almost unconsciously: by the wresting of a rigid form like a writ of course to some new use only slightly different from the old, or with a material difference disguised under a fiction of identity, and by the gradual working out and 21 See subject, PLEADING IN CIVIL ACTIONS. adaptation of principles embodied in the accumulated precedents found in decided cases. The desire for certainty in the law, the dread of judicial caprice or dishonesty, made for an aversion to change which was intensified rather than lessened by the growing influence of a trained professional opinion upon decisions. 57. The need for elasticity. Yet England at the beginning of the fourteenth century was a rapidly growing nation. Edward had enlarged her boundaries and she was cherishing further political ambitions. Her foreign commerce, though still largely in the hands of alien merchants, was great and growing. The universities were the center of a vigorous intellectual life. Parliament was in the full tide of its early activity, with an astonishing list of legislation to its credit. Moreover, the new century and the one that followed it were to be centuries of the utmost social, political, and moral unrest, demanding institutions, legal as well as political and economic, which could deal with the tremendous problems of adjustment that a period of such change involved. But the courts of common law had chosen to regard as closed many of the avenues by which the past growth of the law had been achieved, and so the further development of an administration of justice adequate to the needs of the time had to be sought elsewhere. 58. Legislation in the fourteenth and fifteenth centuries. Nor could the legislative organ of the state provide what was needed. The period from the death of Edward I to the end of the Wars of the Roses is one of increasing governmental feebleness. Incompetent kings, foreign wars, and internecine strife, succeeding one another, combined to turn Parliamentary activity from constructive legislation to an ignoble participation in the history of factional intrigue and armed conflict. There are some few noteworthy statutes. In 1350 and 1360 the organization of the Justices of the Peace completed the outline of the common law control over the peace of the realm. These royally commissioned Justices absorbed the remnants of local court jurisdiction over the minor offenses we now group as misdemeanors. At the same time the statutes gave to these magistrates important administrative powers, which practically put the local government of England into their hands. Edward III's Statute of Mortmain (1390) constitutes the first recognition in English law of that important figure, the corporation, as a juristic person. Legislation was, in truth, actively enacted throughout the period. Parliament dealt with all manner of subjects in minute detail, exhibititing apparent confidence in its power to regulate by statute the price of food and labor, and the garb appropriate to the various social classes. But the statutes reflect how it had become the tool of the great nobles in their factional fights and in the preservation of their selfish economic interests, particularly against the unrest among the peasantry that began with the Black Death (1349) and came to bloody outbreak against oppression in the revolts of Wat Tyler (1381) and Jack Cade (1450). Of the legislative activity of the Parliament of Edward I's reign we find little or no trace. "Parliament seems," says Maitland,22 "to have abandoned the idea of controlling the development of the common law. Occasionally and spasmodically it would interfere; devise some new remedy, fill a gap in the register of writs, or circumvent the circumventors of a statute. But in general it left the ordinary law of the land to the judges and the lawyers. In its eyes the common law was complete or very nearly complete." 59. The expansion of the law through the Court of Chancery. Fortunately for England, a new line for advance was opened up by the development of the judicial functions of the king's chancellor. Originally this officer was the chief secretary of the king and the head of his chaplains; originally, therefore, he was both a man of learning and an ecclesiastic. His legal importance was in some part due to the fact that his office issued the royal writs which gave to injured persons access to a remedy in the King's Court; but still more was it the result of his being the secretarial member of the king's council. It has been noted 23 that even in the fervor of Henry II's reign for the organizing of the administration of justice, some questions were not given to the courts, but were still reserved for the king and his council. This power, constituting what Sir Henry Maine calls a supplementary or residuary jurisdiction in the king and his council to grant remedies that, either through a defect in the administration of the law or a defect in the law itself, were beyond 22 2 Collected Papers, p. 479. 23 See § 44. |