lected out of the plea rolls of the King's Court." Some of these decisions may have been grounded in the first instance on principles of the Roman law, but as they existed when Bracton took them in hand they were the gradual results of the judicial enunciations of the King's Court during the preceding periods. We must be careful, however, to guard ourselves against supposing that the modern system prevailed by which certain cases formed precedents which are binding authorities on the Court. Decisions in this medieval age were illustrations of the custom of the King's Court, which "is the custom of England and becomes the common law." They constitute a body of recognised law, but they do not individually govern and conclude judges in regard to certain states of facts, nor were they known to all the judges or to all their clerks. They formulate the opinions of those who had had to administer the law upon all manner of subjects; these had been regarded from an essentially English point of view (g). So far as Bracton was concerned, he only used his intimacy with canon and Roman law to enunciate opinions, gathered with exceptional industry from these decisions, in an orderly and ample form and with keen point. He produced a treatise, and not a mere collection of notes and cases. His work focussed with amplitude and clearness the national law which had been growing up since the Conquest, and it enables us to realise with some distinctness the real beginnings of the English common law, and to define it in this particular age. The

(g) In the exceedingly important case raising the question whether a palatinate can be partitioned, the magnates reject foreign precedents, nec voluerunt judicare per exempla usitata in partibus transmarinis." (History of English Law, Vol. I. p. 162, note 3.)

term

common law" is a vague one: it has, even in the minds of lawyers, a considerable indefiniteness, it is regarded as something opposed both to statute and to case law, whereas this work of Bracton shows us that its elements are largely composed of judicial decisions. The book was a basis also for the works of future writers and for many judicial decisions in later years, as the subjectmatter of English law expanded with the advance of population and civilisation. It is, in fact, a kind of legal vantage-ground, dividing two periods, from which we can look into the past and the future.

Bracton's career is illustrative of that characteristically hybrid personality of the time, the ecclesiastic who is half a lawyer, and who is the product of the combination of two ages. He can be described in a few words. His name was Henry of Bratton; he was a Devonshire man, and probably began his career as clerk to William Raleigh, a justice of the Common Bench and later Bishop of Norwich. From a justice in eyre he became a justice of the King's Court, from which position he appears to have retired about the year 1257, though to the day of his death, in 1267, he continued to act as justice of assize in the West. If this were all that could be said of him, he would be regarded simply and solely as a lawyer; but soon after he ceased to be judge of the central court he became rector of Combe, near Teignhead, and subsequently rector of Bideford, archdeacon of Barnstaple, and chancellor of Exeter Cathedral. Thus he was both a lawyer and an ecclesiastic. He reached a judicial position, after the manner of the French judges of to-day, by subordinate official work. The best portion of his life he seems to have

R.

C

passed as a purely legal judge, and he ended it while acting as a judge of assize and as a Church dignitary of some importance. He is typical of an age of transition, in which, though nominally an ecclesiastic, he was, while performing legal duties, practically wholly a lawyer. He took up clerical functions as the easy occupation of the later days of life, not as the work of his youth and prime. Both Bracton and his predecessor Glanville are remarkable figures in the history of English law, and while the works associated with their names enable us to understand the state of English law at the time when they were composed they cannot be regarded as books which influenced it in substance or in form, and they are indicative rather than formative.

In reviewing the growth of the legal tribunals we are almost insensibly led to a consideration not only of the forms by which their assistance was obtained and of the means by which their judgements were enforced, but of the substantive law which formed the subject-matter of their decisions. Such a study of details would, however, plunge the reader into too large a mass of legal technicalities; but one feature in relation to this growth is obvious above all technicalities that is, the native character of both English law and procedure. No doubt here and there Continental influences may be traceable, due to the learning of some ecclesiastics; but such features are isolated, and the progress of both law and procedure is marked by an individuality which has made the English common law a system of its own, not adopted from the codes or decisions. of the Continent, but bearing on every part of it the impress of the national movements among which it arose

and of the ruling men among whom it had its growth. Of this native character there is to be found a noticeable instance in the forms of actions-that is to say, that the nature of the relief to be given to a person who was aggrieved was shown by the writ which he obtained from the royal Chancery. This was essentially a practical proceeding; the writ was issued not in consequence of any juristic theory, but to meet an everyday want: it was the act of the sovereign, essentially the fountain of justice, standing above all his nobles and willing a right to his subjects. The system was one characteristic of a period of legal growth, during which time the writs must have embraced most of the ordinary causes of action and would thus tend to become fossilised.

"The age of rapid growth is that which lies between 1154 and 1272. During that age the Chancery was doling out actions one by one. There is no solemn actionem dabo proclaimed to the world, but it becomes understood that a new writ is to be had, or that an old writ which hitherto might be had as a favour is now a writ of course. It was an empirical process, for the supply came in response to a demand: it was not dictated by an abstract jurisprudence; it was conditioned and perturbed by fiscal and political motives; it advanced along the old Roman road which leads from experiment to experiment” (h).

It took nothing essential from the highly organised legal procedure of Rome; it went on its own way, administering to the needs of the people as they arose. 'Tot erunt formula brevium quot sunt genera actionum,"

(h) History of English Law, Vol. II. p. 557.

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writes Bracton-that is to say, in other words, there was a distinct remedy, clear in its form, for every wrong. The modern lawyer is familiar with some writs, but the comprehensive character of this formulary system is scarcely to be appreciated without a reference to the table of writs printed in Pollock and Maitland's "History of English Law." It shows the forms of actions brought before the justices who in the years 1256, 1269, and 1279 made an eyre in Northumberland, and also the actions on the roll of the Common Bench for Easter Term in 1271. They number sixty-one different forms in all and comprehend a list of remedies for the ordinary wrongs of everyday life. They include such writs as those of De Nativo habendo and De Libertate probanda-that is, writs for affirming villenage and negatory of it. Thus in the so-called age of Bracton there existed a legal system very special in its character, but conducive to the wellfare of the people, since it gave them a recognised series of remedies which no kind of judicial discretion could alter. It was a system, however, which, beneficial during its growth and early period of maturity, was certain to degenerate into one of undue technicality when society became more complex. In later ages it conduced sometimes to a denial of justice and required adaptation to the needs of modern times by the administration of what is termed equity. But the same power which in the twelfth and thirteenth centuries sent forth writs in various forms was that which later was to soften the rigour of the common law by a species of judicial discretion and

common sense.

A class of professional lawyers is now also becoming