much more adequate than any money compensation could afford him.25

62. Development of law in the courts of common law. We have already pointed out the difficulty of further development of the law of the land by the judges and lawyers within the inflexible scheme they had created for themselves. But despite these cramping restrictions genuine progress was made. Almost the last remaining bulwark of the baronial jurisdiction was conquered for the courts of common law when they gradually took under their protection the villein tenants and made the law of copyhold a part of the general law of the land. They also recognized and protected the interests of the lessee for years, and gave to the conception of estates in land practically its final formulation.

The ingenuity of the bar was but little directed to any general development of the law. The training which both his preliminary education and his experience gave the common lawyer rendered him comparatively indifferent in questions of the historical origin of the doctrines he dealt with, but extraordinarily keen in logical disputation about them and technical refinement upon them. Often, indeed, his ingenuity was devoted to their perversion, but on the other hand it resulted in utilizing their limited number and variety to meet the new situations which this period of unrest created in increasing quantities. It is to this logical keenness and ingenuity that we owe the development during this period, by way especially of the writs of trespass and trespass

25 See subject, EQUITY.

on the case, of the fundamental doctrines of the civil law of tort and contract, many of which still bear the marks of the cramping procedural mould in which they were cast.26

63. The law merchant and the Court of Admiralty. The failure of the common law to cover the whole field of the administration of justice had led to another specialization of function in the king's council, which also resulted in the creation of a new national tribunal. This was the Court of Admiralty, presided over by the king's admiral, who commanded the royal fleet. The law administered by this court was in large part the law merchant-a term used in the Middle Ages to include both the maritime and commercial law of modern times. It has been pointed out that during the thirteenth century, when Italian merchants and bankers were developing the commerce of all Northern Europe, including England, the common law courts, by their reluctance to undertake to do justice in cases involving foreigners, and especially foreign transactions, missed the opportunity of bringing this rapidly growing field within the system of the common law. Like the clergy, the merchants constituted a class quite distinct from the ordinary members of the community. The merchant was usually a foreigner, without land or a settled place of abode. His occupation was one with which the common law judges were largely unfamiliar. His dealings with foreign banks and foreign factories gave rise to questions of a diplomatic and international sort for which the king and his 26 See subjects, TORT and COntract.

council of state seemed to be the appropriate tribunal. Thus the merchants were left to the control of local courts set up in market towns or seaports where merchants congregated, and administering what was called the custom of the sea or the custom of merchants-bodies of law largely identical, though varying in local detail from town to town, and also largely international in character-the customary observance of this distinct section of the population. Over these local courts the king and his council exercised some supervision, not only because of the international aspects of the subject matter of their law, but also because the king usually had reason for wishing to conciliate the valuable friendship of the foreign traders, and his revenue profited by the customs duties on their business. A special development of the maritime side of this law merchant-that side most closely connected with the king's executive and diplomatic intereststook place when, apparently in Edward III's reign, the king's admiral was given judicial authority to enable him to deal with matters that were becoming important to a country with a growing naval power -matters of piracy and such other maritime cases as torts and offenses committed at sea, and contracts relating to masters and mariners. Once established, the jurisdiction of the admiral enlarged rapidly, and began to absorb that of the seaport towns, who had held franchises for courts administering the law merchant, and particularly the law of the sea. This law of the sea had been moulded, by mere usage, largely on the models afforded the Italian mariners

who first carried on international trade by the Roman law, modified and developed, however, to meet the new conditions of medieval commerce. Naturally the procedure of the court tended to follow civil law models. It had, moreover, the advantage of a fresh start, unhampered by the rigid rules which had grown up in the courts of common law. 'Like the Court of Equity, the Court of Admiralty disregarded the institution of trial by jury, and the elaborate apparatus of pleading that this had initiated.

Thus a second new system, free from the technicalities of the common law, was added to the mechanism of justice in England. The liberalizing effect of these two new courts went a long way toward enabling England to deal with the problems of the new era which opened with the discovery of America, and with the intellectual and religious unrest that accompanied the westward spread of the Revival of Learning.

CHAPTER VIII.

THE MATURITY OF THE LAW.

64. The administration of justice by councils.The Wars of the Roses, following hard on the long and draining struggle of the Hundred Years' War with France, left the English people exhausted and anxious for nothing so much as peace. Even during the civil strife the courts of law had carried on their regular operations; indeed the chances the warring nobles had been running of having their estates forfeited for treason, as one or the other faction got hold of the reins of government, had led to a great increase of conveyances of these estates in trust to non-combatants. But the sanction behind the judgments and decrees of the courts was weak. It was impossible for them to enforce their orders against the powerful nobles and their retainers. The machinery of the courts, dilatory at best and rendered more inefficient by the timidity and dishonesty of the juries obtainable in the general breakdown of traditional morality characteristic of the time, added to the dissatisfaction of the nation with the justice of the courts. England was ready to welcome a strong government, even though it should be an arbitrary and despotic one; and such a government the Tudors, so soon as they were safe on the throne, proceeded to inaugurate. They secured it by reorganizing the king's council, the original source not only