IV The Treatise and the Law
It is possible from Glanville’s treatise to get a rather complete picture of the common law at the end of the reign of Henry II. In the lord’s courts were regularly brought not only the suits of the villein tenants, but all suits concerning land held of the lord. Suits of the latter sort, however, must be begun by the King’s writ; if the lord refused justice, resort might be had to the county court in all suits involving freehold land; and the lord might on his own motion adjourn a question of difficulty into the King’s court. The county court had original jurisdiction of questions of villeinage and of customary service, and of any question sent to it by the King’s writ; and it had jurisdiction over writs of right removed from the lord’s court. It apparently, also, had jurisdiction of disputes as to title or possession of personal property. The ecclesiastical courts had jurisdiction of questions of marriage and legitimacy, of wills, and of disputes involving ecclesiastical questions only; the King’s court would prohibit them by writ from interfering in other matters.
The procedure in the King’s court did not differ greatly from the present procedure. A suit was begun by writ, served by the sheriff, and enforced by the distraint of the defendant’s land. The most important feature of the procedure was the elaborate system of rules governing essoins or continuances. By a skilful use of essoins the defendant or tenant could prolong proceedings on a writ of right for years; the fact that in the new possessory assises few essoins were allowed, and the proceedings were therefore much prompter, contributed greatly to the favor with which they were received. Final judgment in the King’s court was by this time enrolled; and the method of conveying land by levying a fine was in full operation.
The law of real property in its essential features was fully formed. The whole law of tenures and incidents had been finally settled; but the rules of inheritance and of transfer by will were still uncertain. The doctrines of warranty (now obsolete), according to which the grantor of a party could be called into a suit, or in the technical phrase vouched to warranty, and thus substituted for the original party, were still of the highest importance in practice. The modern mortgage, i.e. the grant on condition, was as yet unknown: Glanville’s mortgage of land, like the pledge of personalty in his time, is a mere grant of custody by way of security.
The law of personal property was little developed. Doctrines as to pledge and bailment, derived from the old Germanic law, were applied in the county courts; there, for instance, the absolute responsibility of the bailee was still enforced. Through the writ of detinue and the action on the case, the King’s courts were soon to take control of these subjects, and to establish the modern law of bailments and carriers.
Certain formal contracts were enforced by the King’s court. The writ of debt would lie as a result of a loan, a sale, or an obligation created by charter. Redress for breach of ordinary contracts could be obtained only in the ecclesiastical courts, which might deal with the sin of deceit. Not for three centuries did the King’s court work out a doctrine by which a party might be held to perform his simple contract.
No action of damages for tort would lie. There is as yet no trace of the process by which (working from appeals of felony to writ of trespass against the King’s peace and actions on the case) the King’s court would eventually work out the modern law of tort. So far as there was any remedy for torts it was in the inferior courts.
The King’s court could at this time punish all felonies except theft, jurisdiction over which it obtained by Magna Carta. It was a long time before it obtained exclusive jurisdiction over felony, or took control, as “custos morum,” of misdemeanors.
Such law, it may be admitted, was rude and unsatisfactory; but it was a long advance over what had gone before, and it had within itself the germ of the modern Common Law.
Joseph H. Beale, Jr.
Harvard University,
October, 1900.