CHAP. VIII.

A brief continuation of the progress of the laws, from the time of king Edward II. inclusive, down to these times.

HAVING in the former chapter, been somewhat large in discoursing of the progress of the laws, and the incidental additions they received in the several reigns of king William II. king Henry I. king Stephen, king Henry II. king Richard I. king John, king Henry III. and king Edward I.-I shall now proceed to give a brief account of the progress thereof, in the time of Edward II. and the succeeding reigns, down to these times.

Edward II. succeeded his father. Though he was an unfortunate prince, and by reason of the troubles and unevenness of his reign, the very law itself had many interruptions, yet it held its current, in a great measure, according to that frame and state that his father had left it in.

Besides the records of judicial proceedings in his time, many whereof are still extant, there were some other things that occurred in his reign, which give us some kind of indication of the state and condition of the law during that reign. As,

First, the statutes made in his time, especially that of 17 E. 2. stiled DE PREROGATIVA REGIS; which though it be called a statute, yet for the most part is but a sum, or collection, of certain of the king's prerogatives, that were known law long before. As for instance, the king's wardship of lands IN CAPITE, attracting the wardship of lands held of others; the king's grant of a manor, not carrying an advowson appendant, unless named; the king's title to the escheat of the lands of the Normans, which was in use from the first defection of Normandy under king John; the king's title to wreck, royal fish, treasure trove, and many others; all of which were ancient prerogatives to the crown (a).

(a) Vide Barring. on Stat. 179. seq. -Bacon on Seld. c. 64. fo. 137. says

Secondly, the reports of the years and terms of this king's reign. These are not printed in any one entire volume, or in any series or order of time; only in some BROKEN CASES thereof in Fitzherbert's Abridgment, and in some other books dispersedly. Yet there are many entire copies thereof abroad, very excellently reported; wherein are many resolutions agreeing with those of Edward the First's time. The best copy of these reports that I know now extant, is that in Lincoln's-Inn library, which gives a fair specimen of the learning of the pleaders and judges of that rime (a).

King Edward III. succeeded his father. His reign was long ; and UNDER IT THE LAW WAS IMPROVED TO THE GREATEST HEIGHT. The judges and pleaders were very learned, and the

that they were collated by agreement between Ed. II. and his people, and so the summary, became, as it were, a statute to future times.

(a) See the first volume of the YearBooks, edit. 1678. intituled, "Les reports des cases argue & adjudge in le "temps del roy Edward le second. Solonq; les ancient manuscripts ore "remanent en les maines de sir Jehan' "Maynard chevaler, serjeant de la ley "al sa tres excellent majesty le roy "Charles le second."-This is the old book of reports "of the years and terms" of Edward the Second, to which Hale alludes; and it is probable that these reports were first published in consequence of his recommendation, in the case of Sacheverell and Frogatt, Mich. 23 Car. II. reported in 2 Saund. 367. 1 Vent. 148. 161. 2 Keb. 798. 819. 833. 839. T. Raym. 213. Mr. Selden, to whom knowledge of this kind was perfectly familiar, says the compiler of these reports was one Richard de Winchedon, who lived in the reign of Edward 11.-There is some small variation in the copies. Seld. Dissert. Flet. 528. 529. Ten volumes of the YEAR-BOOKS, OF OLD REPORTS, beginning with the reign of Edward the Third, and ending with that of Henry the Eighth, were printed by subscription in the year 1679. To these were afterwards added, the cases which were determined, in the time of Edward the Second, and collected by Serjeant Maynard. This valuable collection was produced from

the joint labours of many learned men ; of men who were particularly chosen to take notes of all that judicially occurred and was decided. These notes were not only communicated to, but, if they required it, were corrected by, the judges. Plowden, one of the most valuable of our reporters, says, that these books were collected by four able men, especially appointed for the purpose, and who were annually rewarded by the king. See pref. 3. Rep. Dugd. cap. xxiii. Nicholson, iii. 178. Tyrrel. Int. ci. Mr. Justice Blackstone says they "were taken by the protho"notaries, or chief scribes of the court, "at the expence of the crown, and "published annually, whence they are "known under the denomination of "the Year-Books." Com. 1 v. 72. This opinion may be right, but the learned judge has omitted to make mention of the authority which induced him to entertain it. Sir Edward Coke, in the preface to his Third Report, remarks, that "the kings of this realm, "that is to say, E. 3. H. 4. H. 5. H. 6. "E. 4. R. 3. and H. 7. did select and appoint four discreet and learned "professors of law, to report the judg"ments and opinions of the reverend "judges:" but takes no notice of their being either "the prothonotaries" or "chief scribes of the court;" or that their reports were "published annually." "Out of these old fields (adds Sir Edward) springs the Lew "corn."

6.

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pleadings are somewhat more polished than those in the time of Edward I.-Yet they have neither UNCERTAINTY, PROLIXITY, NOR OBSCURITY. They were PLAIN AND SKILFUL; and in the rules of law, especially in relation to real actions, and titles of inheritance, VERY LEARNED AND EXCELLENTLY POLISHED, and exceeded those of the time of Edward I.: so that at the latter end of this king's reign, the law seemed to be near its meridian(a). The reports of this king's time, run, from the beginning, to the end of his reign; excepting some few years between the 10th and 17th, and 30th and 33d years of his reign. But those omitted years are extant in many hands, in old manuscripts (b).

The BOOK OF ASSIZES is a collection of the assizes that happened in the time of Edward III. being, from the beginning to the end, extracted out of the books and assizes of those that attended the assizes in the country (c).

The justices itinerant, continued by intermitting vicissitudes, till about the 4th of Edward III. and some till the 10th of Edward III. Their jurisdiction extended to pleas of the crown, or, criminal causes, civil suits and pleas of liberties, and quo warranto's. The reports thereof are not printed, but are in many hands in manuscript, both of the times of Edward I. Edward II. and Edward III. full of excellent learning. Some few broken reports of those eyres, especially of Cornwall, Nottingham, Northampton, and Derby, are collected by Fitzherbert in his Abridg

ment.

After the 10th of Edward III. I do not find any justices errant ad communia placita, but only ad placita foresta. Other things, that concerned those justices itinerant, were supplied and transacted in the common bench for communia placita;—in the king's bench

(a) "In the reign of Edward III. pleadings (in the opinion of sir Ed"ward Coke) grew to perfection, "both without lameness and curiosity; "for then the judges and professors of "the law, were excellently learned, "and then knowledge of the law flou"rished the serjeants of the law, &c. "drew their own pleadings, and therefore, truly said that reverend justice Thirning, in the reign of Henry IV. "that in the time of Edward III. the "law was in a higher degree than it had been any time before; for be"fore that time the manner of plead

"ing was but feeble, in comparison of "that it was afterwards, in the reign "of the same king."-1 Inst. 304. b.and yet in the case of Hering v. Blacklow, Cro. El. 30. the justices are stated to have said, that in the time of Ed. III. the judges had no great regard to pleading.

(b) Probably they were all printed in Maynard's edition of the YearBooks. (c) Vide "Le Livre des Assises," which is the fifth volume of the YearBooks, ed. 1679.

and exchequer for placita de libertatibus;—and before justices of assize, nisi prius, oyer and terminer, and gaol delivery, for assizes and pleas of the crown.

And thus much for the law in the time of Edward III. (A)

Richard II. succeeding his grandfather, the dignity of the law, together with the honour of the kingdom, by reason of the weakness of this prince, and the difficulties occurring in his government, SEEMED SOMEWHAT TO DECLINE; as may appear by

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(A) The old Gothic powers of electing the principal subordinate magistrates, the sheriffs, and conservators of the peace, were taken from the people in the reigns of Edward II. and Edward III. and justices of the peace established instead of the latter; whose jurisdiction can only be taken away by express words. 3 T. R. 279. In the reign also of Edward the third, the parliament "is supposed most probably to have assumed its present form, by a separation of the commons from the lords." It is remarked by an elegant historian*, that conquerors, though usually the bane of human kind, proved often, in the feudal times, the most indulgent of sovereigns. They stood most in need of supplies from their people; and not being able to compel them by force to submit to the necessary impositions, they were obliged to make them some compensation, by equitable laws and popular concessions. This remark is in some measure, though imperfectly, justified by the conduct of Edward III. He took no steps of moment, without consulting his parliament, and obtaining their approbation, which he afterwards pleaded as a reason for their supporting his measures †. The parliament therefore rose into greater consideration during his reign, and acquired a more regular authority than in any former times; and even the house of commons, which, during turbulent and factious periods, was naturally oppressed by the greater power of the crown and barons, began to appear of some weight in the constitution.

The statute, for defining and ascertaining treasons, was one of the first productions of this new-modelled assembly. One of the most popular laws enacted by any prince, was the statute which passed in the twenty-fifth of this reign, and which limited the cases of high treason, before vague and uncertain, to three principal heads, the conspiring the death of the king, the levying war against him, and the adhering to his enemies; and the judges were prohibited, if any other cases should occur, from inflicting the penalty of treason, without an application to parliament. The bounds of treason were indeed so much limited by this statute, which still remains in force without any alteration, that the lawyers were obliged to enlarge them, and to explain a conspiracy for levying war against the king, to be equivalent to a conspiracy against his life; and this interpretation, seemingly forced, has, from the necessity of the case, been tacitly acquiesced in. Mr. Justice Blackstone has enumerated some other legal improvements, which were effectuated under the auspices of this brave and indulgent sovereign §.

* Dr. Robertson's Hist. Scot. lib. 1. + Cotton's Abridg. p. 108, 120.

Chap. 2.

§ Blac. Com. 4 v. 428.

comparing the twelve last years of Edward III. commonly called quadragesms, with the reports of king Richard II. wherein appears a visible declination of the learning and depth of the judges and pleaders.

It is true, we have no printed, continued report, of this king's reign. But I have seen the entire years and terms thereof, in a manuscript, out of which, or some other copy thereof, I suppose Fitzherbert, abstracted those broken cases of this reign, in his Abridgment.

In all those former times, especially from the end of Edward III. back to the beginning of Edward I. the learning of the common law consisted principally in assizes and REAL ACTIONS. Rarely was any title determined in any personal action; unless in cases of titles to rents, or services, by replevin. And the reasons thereof were principally these, viz.

First, because these ancient times were great favourers of THe POSSESSOR; and therefore, if about the time of Edward II. a disseisor had been in possession, by a year and a day, he was not to be put out, without a recovery by assize. Again, if the disseisor had made a feoffment, they did not countenance an entry upon the feoffee, because thereby he might lose his warranty, which he might save, if he were impleaded in an assize or writ of entry. By this means, real actions were frequent, and also assizes. Secondly, they were willing to quiet men's possessions. And therefore after a recovery, or bar, in an assize or real action, the party was driven to an action of a higher nature.

Thirdly, because there was then no known action, wherein a person could recover his possession, other than by an assize or a real action. For till the end of Edward IV. the possession was not recovered in an ejectionæ firma; but ONLY DAMAGES.

Fourthly, because an assize was a speedy and effectual remedy to recover a possession; the jury being ready impanelled and at the bar, the first day of the return. And although by disusage, the practicers of law, are not so ready in it, yet the course thereof, in those times, was as ready and as well known to all professors of the law, as the course of ejectiona firma is now (B).

(B) "All the law concerning disseisins existed and was in practice prior to the assize of novel disseisin. The assize was introduced, probably from the usage of Normandy, for the Grand Coutumier treats of assizes in or before the reign of Henry the second. Glanville, who wrote in that reign, calls the great

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