The Constitutional History of England

18 Constitutions l History PERIODinfluence on the growth of English law:-it has set men tothink seriously and rationally of English law as a whole,to try to set it in order and represent it as an organized bodyof connected principles1. But the substance of Bracton's workis English. He cites no less than 500 decisions of the king'sjudges. English law, we see, is already becoming what wenow call ' case law '-a decided case is an ' authority ' whichought to be followed when a similar case arises. We see alsothat the growth of English law, especially land law, has beenvery rapid. Glanvill's book looks very small and meagrewhen placed beside Bracton's full and comprehensive treatise.We may indeed regard the reign of Henry I11 as a goldenage of judge-made law : the king's court is rapidly becomingthe regular court for all causes of any great importance, exceptthose which belong to the ecclesiastical courts, and as yet thejudges are not hampered by many statutes or by the jealousyof a parliament which will neither amend the law nor sufferothers to amend it. Also we now hear very little of localcustoms deviating from the common law; as the old localcourts give way before the rising power of the king's court,so local customs give way to common law. The king's courtgains in power and influence because its procedure is moresummary, more rational, more modern than the procedure ofthe local courts. Their procedure is never improved, it remainsarchaic; meanwhile the royal court is introducing trial byjury ; all the older inodes of trial are giving way before thisnew mode. In 1215 the Lateran Council forbad the clergyany longer to take part in the ordeal. In England the ordealwas at once abolished, and the whole province of criminal lawwas thus thrown open to trial by jury.v. Edward the First (I 272- I 307).Edward I has been called 'the English Justinian.' Thesuggested comparison is not very happy; it is something likea comparison between childhood and second childhood. Justinian,we may say, did his best to give final immutable formto a system which had already seen its best days, which hadSelect Passages fronr the Works of Bracbn and Azo, ed. F. W. Maitland(Selden Society), 1895-with a brilliant introduction.The English Jz8stiniaucalready become too elaborate for those who lived under it.Edward, taking the whole nation into his counsels, legislatedfor a nation which was only just beginning to have a greatlegal system of its own. Still it is very natural that weshould seek some form of words which will mark the factthat Edward's reign is an unique period in the history of ourlaw. Sir M. Hale, writing late in the seventeenth century, saysthat more was done in the first thirteen years of that reign tosettle and establish the distributive justice of the kingdom, thanin all the ages since that time put together. We can hardlysay so much as this; still we rnay say that the legislativeactivity of those thirteen years remains unique until the reignof William IV; for anything with which we may compareEdward's statutes we must look forward from his day tothe days of the Reform Bill. Now Hale, I think, hits themark when he says that more was done to settle and establishthe distributivejzrstice of the ki?zga'uv~ in Edward's reign thanin subsequent ages1. The main characteristic of Edward'sstatutes is that they interfere at countless points with theordinary course of law between subject and subject. Theydo more than this-many clauses of the greatest importancedeal with what we should call public law-but the characteristicwhich makes them unique is that they enter the domainof private law and make vast changes in it. For ages afterEdward's day king and parliament left private law and civilprocedure, criminal law and criminal procedure, pretty muchto themselves. Piles of statutes are heaped up-parliamentattempts to regulate all trades and all professions, to settlewhat dresses men rnay wear, what food they may eat-ordainsthat they must be buried in wool-but we may turn page afterpage of the statute book of any century from the fourteenthto the eighteenth, both inclusive, without finding any changeof note made in the law of property, or the law of contract,or the law about thefts and murders, or the law as to howproperty may be recovered or contracts may be enforced, orthe law as to how persons accused of theft or murder may bepunished. Consequently in Hale's day and in Blackstone'sThc History of the Comnron Law of E*gZand, 4th edn., 1779, p. 152.