Richard II: The Peasants’ Revolt
We now come to a period of steady growth in the common law covering just over a century and a quarter (1272-1399). The reign of Edward I is marked by one of the greatest outbursts of reforming legislation in English history until the nineteenth century.1 The first Statute of Westminster (1275) made numerous changes in procedure, many of them designed to protect the subject against the King’s officers, for the evidence collected by the commission of inquiry set up in the previous year had revealed a good deal of oppression.2 The statute may be regarded in some ways as being a sort of supplement to the Great Charter, which was now fifty years old. The Statute of Gloucester (1278) made important amendments to the law of land, especially on the subjects of waste, curtesy and dower. The next year the great Statute of Mortmain did something to check the feudal losses which resulted when land was given to churches, monasteries and corporate bodies, by completely forbidding all amortisation.3 In 1284 we have a remarkable statute re-stating the fundamentals of the common law for the information of sheriffs who were engaged in applying English law to the newly conquered land of Wales. This statute is so long that it almost amounts to a short treatise on the state of the law in 1284; its practical interest to historians is therefore considerable, for it contains information which is difficult to find elsewhere.
WESTMINSTER THE SECOND
The next year (1285) saw an astonishing series of epoch-making statutes. Of these the first was the second Statute of Westminster, which leaves hardly a single department of the law untouched. Of its fifty chapters, the first is the famous De Donis of which we shall have much to say later on, for it lies at the foundation of the idea of legal estates in land. Among many others are the following important provisions. The common mode of fraudulently conveying land by allowing judgment to go by default in a collusive action brought for the purpose was checked (c. 4).1 The rights of joint-tenants and reversioners were given more prompt protection in such cases, and it was enacted that this device should not bar a widow’s claim to dower. By chapter 11 a very stringent process was created for the action of account. In its origin it dealt with the relationship of the lord of a manor to his bailiff or estate manager, but as history proceeds it becomes a commercial as well as a feudal action, and the regular remedy lying between partners. The statute imposes imprisonment as soon as an accountant is found in default, and this penalty can be inflicted by the lord’s auditors without the intervention of a court. Equally drastic is the penalty upon the sheriff or gaoler if such a prisoner escapes, for in such a case the gaoler shall be liable to the lord in the same sum as the accountant was. This perhaps is a reflection of the insecurity of mediaeval prisons, which were by no means so massive as is sometimes thought. Chapter 18 established the writ of elegit whereby a judgment creditor could, as an alternative to the old fieri facias, elect to take all the debtor’s chattels and to hold half of his lands until the debt be levied out of the chattels and the rent.
THE STATUTE AND SIMILAR CASES
Chapter 24 contains the famous provision that—
“whensoever from henceforth it shall happen in the Chancery that there is to be found a writ in one case, but not in another case although involving the same law and requiring the same remedy, the clerks of the Chancery shall agree in framing a writ, or else they shall adjourn the plaintiffs to the next Parliament, or else they shall write down the points upon which they cannot agree and refer them to the next Parliament, and so a writ shall be framed by the consent of the learned in the law; to the end that the court from henceforth shall no longer fail those who seek justice.”
Here indeed is laid down a regular procedure for the steady expansion of the law by the enlargement of the available writs in certain narrowly defined circumstances. Its primary object was to authorise the extension of remedies which already existed between parties, so that they would become available between the heirs (or successors in office) of those who would primarily have been entitled to use them. It is clear that the Chancery clerks did not regard this statute as giving them wide powers of creating new forms of action, for where we find the chapter invoked at all (and it is not very often) it is used with great caution. The only serious extension of the law as a result of the statute was the creation of the writ of entry in consimili casu.1 In fact, the large part assigned to Parliament in the chapter shows that it was the general feeling that matters of legislative importance ought to be handled there. In the fourteenth century, moreover, parliamentary proceedings were often extremely informal, and are by no means always recorded on the rolls; consequently it is most likely that these statutory powers were exercised, if at all, by the little group of administrators and lawyers who formed the kernel of the fourteenth-century Parliaments. Very soon, however, the statute rolls seem regularly to contain express declarations in legislative form as to the extension of old writs to new cases, and it may well be that the form of a statute was chosen because the publicity attaching to it made the reform more quickly effective.2
BILLS OF EXCEPTIONS
Chapter 31 relates that it sometimes happens that parties who allege an exception which the court overrules have difficulty when they attempt to test the lawfulness of the decision by a writ of error, because the court may not have enrolled the unsuccessful exception. The higher court is therefore unable to pass upon the matter because it is not on the record before them. To remedy this, the statute allows such exceptions to be written down in a “bill” to which the trial judge must affix his seal. If the exception is not enrolled, then the “bill of exceptions” is to be sufficient record for proceedings in error. The chapter shows that the roll is still under the absolute control of the court, which can include or exclude matters in its discretion; it is not surprising that judges said many hard things against the new “bill of exceptions” and more than once flatly refused to seal them.3
THE NISI PRIUS SYSTEM
Chapter 30 regulated the new system of nisi prius justices, who become more important in practice as a result of many succeeding statutes amending the system in details. In this way it became less necessary for juries from remote parts of the country to undertake the slow and costly journey to Westminster.
In the same year the Statute of Winchester established a system of police by compelling citizens to possess armour according to their means for the defence of the peace. Then the Statute of Merchants (also of 1285) established a system of recording debts and of making land liable to execution, which lasted down to the eighteenth century with some modifications.1 In 1290 we find the great Statute Quia Emptores which has been rightly called one of the pillars of real property law.
The burden of foreign war and the Crown’s growing need for money provoked a good deal of unrest, and finally, as the price of a heavy grant of taxes, the King had to confirm the Charters. It was on this occasion (1297) that the Great Charter was first enrolled among the public archives.
EDWARD I AND FEUDALISM
There is one general aspect of Edward I’s legislation which has especial interest. This is the belief of many historians, expressed in several different forms, that there was something anti-feudal in his policies.2 We have already mentioned the fact that the Statute of Marlborough was passed under his influence and is historically part of the great mass of legislation passed in Edward I’s reign, and so we shall consider it together with the statutes of Westminster the first and second, and especially the statute of Quia Emptores. Of the Statute of Marlborough Maitland wrote that “in many respects it marks the end of feudalism”,3 and of Edward’s legislation as a whole Stubbs wrote that it endeavoured to eliminate the doctrine of tenure from political life.4 These two statements, sometimes repeated in less guarded language by other historians,
