The History of the Common Law of England [57]
and 30th and 33d Years of his Reign; but those Omitted Years are extant in many Hands in old Manuscripts. The Book of Assizes is a Collection of the Assizes that happened in the Time of Edw. 3, being from the Beginning to the End extracted out of the Books and Assizes of those that attended the Assizes in the Country. The justices Itinerant continued by intermitting Vicissitudes till about the 4th of Edw. 3, and some till the 10th of Edw. 3. 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 Edw. I, Edw. 2, and Edw. 3, full of excellent Learning. Some few broken Reports of those Eyres, especially of Cornwal, Nottingham, Northampton, and Derby, are collected by Fitzherbert in his Abridgment. After the 10th of Edw. 3, I do not find any Justices Errant ad Communia Placita, but only ad Placita forestae; other Things that concerned those Justices Itinerant were supplied and transacted in the Common Bench for Communia Placita, in the King's-Bench and Exchequer for Placita de Libertatibus, and hefore 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 Edw. 3. Richard 2 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, seem'd somewhat to decline, as may appear by comparing the Twelve last Years of Edw. 3, commonly called Quadragesms, with the Reports of King Richard 2, 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 Edw. 3, back to the Beginning of Edw. I, the Learning of the Common Law consisted principally in Assizes and Real Actions; and 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 Edw. 2, 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; and 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 Edw. 4, the Possession was not recovered in an Ejectione firmae, but only Damages. Fourthly, Because an Assize was a speedy and effectual Remedy to recover a Possession, the Jury being ready Impannell'd and at the Bar the first Day of the Return. And altho' by Disusage, the Practisers 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 Ejectione firmae is now. Touching the Reports of the Years and Terms of Hen. 4, and Hen. 5, I can only say, They do not arrive either in the Nature of the Learning contained in them, or in the Judiciousness and Knowledge of the Judges and Pleaders, nor in any other Respect arise to the Perfection of the last Twelve