第40章 VII. (6)

The Nobility were quick and earnest, notwithstanding his Minority, to have the Liberties and Laws of the Kingdom confirm'd; and Preparatory thereto, in the Year 1223, Writs issued to the several Counties to enquire, by twelve good and lawful Knights, Que fuerunt Libertates in Anglia tempore Regni Henrici avi sui, returnable quindena Paschae. What Success those Inquisitions had, or what Returns were made thereof, appears not:

But in the next Year following, the young King standing in Need of a Supply of Money from the Clergy and Laity, none would be granted, unless the Liberties of the Kingdom were confirm'd, as they were express'd and contain'd in the two Charters of King John; which the King accordingly granted in his Parliament at Westminster, and they were accordingly proclaim'd, Ita quod Chartae utrorumque Regum in nulla inveniatur dissimiles. Mat.

Paris. Anno 1224.

In the Year 1227, The King holding his Parliament at Oxford, and being now of full Age; by ill Advice, causes the two Charters he had formerly granted to be cancell'd, "Hanc occasionem praetendens, quod Chartae illae concessae fuerunt & Libertates scriptae & signatae dum ipse erat sub Custodia, nec sui Corporis aut sigilli aliquam potestatem habuit, unde viribus carere debuit," &c. Which Fact occasion'd a great disturbance in the Kingdom: And this Inconstancy in the King, was in Truth the Foundation of all his future Troubles, and yet was ineffectual to his End and Purpose; for those Charters were not avoidable for the King's Nonage, and if there could have been any such Pretence, that alone would not avoid them, for they were Laws confirm'd in Parliament.

But the Great Charter, and the Charter of the Forest, did not expire so; for in 1253, they were again, seal'd and publish'd:

And because after the Battle of Evesham, the King had wholly subdued the Barons, and thereby a Jealousy might grow, that he again meant to infringe it; in the Parliament at Marlbridge, cap.

5. they are again confirm'd. And thus we have the great Settlement of the Laws and Liberties of the Kingdom establish'd in this King's Time: The Charters themselves are not every Word the same with those of King John, but they differ very little in Substance.

This Great Charter, and Charta de Foresta, was the great Basis upon which this Settlement of the English Laws stood in the Time of this King and his Son; there were also some additional Laws of this King yet extant, which much polish' d the Common Law, viz. The Statutes of Merton and Marlbridge, and some others.

We have likewise two other principal Monuments of the great Advance and Perfection that the English Laws attain'd to under this King, viz. The Tractate of Bracton, and those Records of Plea, as well in both Benches, as before the Justices Itinerant, the Records whereof are still extant.

Touching the former, viz. Bracton's Tractate, it yields us a great Evidence of the Growth of the Laws between the Times of Henry 2, and Hen. 3. If we do but compare 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.