The History of the Common Law of England [53]
Glanville's Book with that of Bracton, we shall see a very great Advance of the Law in Writings of the latter, over what they are in Glanville. It will be needless to instance Particulars; some of the Writs and Process do indeed in Substance agree, but the Proceedings are much more regular and settled, as they are in Bracton, above what they are in Glanville. The Book itself in the Beginning seems to borrow its Method from the Civil Law; but the greatest Part of the Substance is either of the Course of Proceedings in the Law known to the Author, or of Resolutions and Decisions in the Courts of King's-Bench and Common-Bench, and before Justices Itinerant, for now the inferior Courts began to be of little Use or Esteem. As to the Judicial Records of the Time of this King, they were grown to a much greater Degree of Perfection, and the Pleadings more orderly, many of which are extant: But the great Troubles, and the Civil Wars, that happen'd in his Time, gave a great Interruption to the legal Proceedings of Courts; they had a particular Commission and Judicatory for Matters happening in Time of War, stiled, Placita de Tempore Turbationis, wherein are many excellent Things: They were made principally about the Battle of Evesham, and after it; and for settling of the Differences of this Kingdom, was the Dictum, or Edictum de Kenelworth made, which is printed in the old Magna Charta. We have little extant of Resolutions in this King's Time, but what are either remember'd by Bracton, or some few broken and scatter'd Reports collected by Fitzherbet in his Abridgment. There are also some few Sums or Constitutions relative to the Law, which tho' possibly not Acts of Parliament, yet have obtain'd in Use as such; as De districtione Scaccarii, Statiutum Panis & Cervisiae Dies Communes in Banco Statutum Hiberniae, Stat. de Scaccario, Judicium Collistrigii, and others. We come now to the Time of Edw. I, who is well stiled our English Justinian; for in his Time the Law, quasi Per Saltum, obtained a very great Perfection. The Pleadings are short indeed, but excellently good and perspicuous: And altho' for some Time some of those Imperfections and ancient inconvenient Rules obtain'd; as for Instance, in Point of Descents, where the middle Brother held of the eldest, and dying without Issue, the Lands descended to the youngest, upon that old Rule in the Time of Hen. 2. Nemo Potest esse Dominius & Haeres, mention'd in Glanville, at least if he had once receiv'd Homage, 13 E. I. Fitz Avowry 235. Yet the Laws did never in any one Age receive so great and sudden an Advancement, nay, I think I may safely say, all the Ages since his Time have not done so much in Reference to the orderly settling and establishing of the distributive justice of this Kingdom, as he did within a short Compass of the thirty-five Years of his Reign, especially about the first thirteen Years thereof. Indeed many Penal Statutes and Provisions, in Relation to the Peace and good Government of the Kingdom, have been since made. But as touching the Common Administration of Justice between Party and Party, and accommodating of the Rules, and of the Methods and Orders of Proceding, he did the most, at least of any King since William I and left the same as a fix'd and stable Rule and Order of Proceeding, very little differing from that which we now hold and practice, especially as to the Substance and principal Contexture thereof. It would be the Business of a Volume to set down all the Particulars, and therefore I shall only give some short Observations touching the same. First, He perfectly settled the Great Charter, and Charta de Foresta, not only by a Practice consonant to them in the Distribution of Law and Right, but also by that solemn Act passed 25 E. I. and stiled Confirmationes Cartarum. Secondly, He established and distributed the several Jurisdictions of Courts within their proper Bounds. And because this Head has several Branches, I shall subdivide the same, viz.