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    The National Law Library

    Volume One

    Common Law

    by

    Roscoe PoundUniversity Professor at HarvardFormerly, Dean of The Law School

    Originally published in 1939, byP. F. Collier & Son Corporation

    Republished InThe United States Of America

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    Itdoesnotrequireamajoritytoprevail,but

    ratheranirate,tirelessminoritykeento

    setbrushfiresinpeoplesminds.

    SamuelAdams

    General Introduction

    Blackstones Commentaries werethe result of his lectures at Oxford, in-tended for a general student body, notmerely for students preparing for thelegal profession. In his inaugural lec-ture, afterwards published as the Intro-duction to his Commentaries, he setsforth his purpose to methodize and ex-plain the laws and constitution of En-gland, adding that this was a speciesof knowledge in which the gentlemenof England have been more remarkablydeficient than those of all Europe be-sides. This Introduction, taking upthirty-seven pages of the original text,is devoted to demonstrating the impor-tance of a wide knowledge of the

    method, system, and general principlesof the law on the part of those who liveunder the English polity. Blackstonesidea was taken up eagerly in Americaafter the Revolution. Wythes lecturesat William and Mary (1779), Wilsons lec-tures at the College of Philadelphia(1791), Kents lectures at Columbia(1794) and Parkers at Harvard (1816)were meant for general audiences, notmerely for law students. President andMrs. Washington were among thosewho listened to James Wilson. The lec-

    tures were said to be addressed togentlemen of all professions, and therewas an announced aim of informingthe legislator and the magistrate aswell as the lawyer. Kent stated at theoutset that he would set forth nothingbut what may be usefully known by ev-ery gentleman of polite education. Aslate as 1838, the catalogue of HarvardUniversity stated, as one of the aims ofthe Law School, to afford elementaryinstruction in law for gentlemen notdestined for the bar but desirous of

    qualifying themselves either for publiclife or for commercial business.

    Blackstones Commentaries on theLaws of England, and to a less extentKents Commentaries on American Law,were meant for general readers as wellas for lawyers and law students. But therise of the apprentice law school at theend of the eighteenth and early in thenineteenth century led to a discontinu-

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    ance of the academic lectures onlaw for general audiences, andBlackstone and Kent have had nosuccessors. The multiplication of

    jurisdictions and enormous in-crease in detail of laws have pre-cluded books and courses with

    the double purpose of instruct-ing law student and layman. Wehave come to have, on the onehand, books for the lawyer andfor the student training to be-come a lawyer, and, on the otherhand, books of the Everyman HisOwn Lawyer typebooks, at theleast, of very doubtful utility.

    Yet the need of some suchthing as Blackstone and Kent and

    James Wilson had in mind, andof what Story wrote in the an-

    nouncement of the Harvard LawSchool, is quite as great as intheir time. Our American polityis characteristically legal. Wemake political questions legaland legal questions political. Agovernment of laws and not ofmen calls for men who knowsomething of the system andmethod and principles of law noless in the role of governed thanin that of governors. It is only inan autocracy or a dictatorship

    that widespread knowledge ofthe system and principles of thelaw is superfluous.

    In Continental Europe therehas long been a type of bookwhich meets this demand.Encyclopaedic surveys of the lawbegin in the eighteenth century,in the era of enlightenment inwhich men sought for the wid-est possible diffusion of knowl-edge. They aim at a systematicreview of the law as a whole, froman analytical, a historical, and aphilosophical standpoint. Theyare not at all complete dogmaticexpositions, such as the practi-tioner of law requires. They donot aim to give a book in whichany man may find the applicablerule of law in any jurisdiction onany state of facts. Even thecyclopaedic digests, run-fling to

    scores of volumes, can but par-tially do that for the trained andexperienced lawyer. It cannot bedone with any real assurance forthe layman in the complex socialand legal order of today. Whatcan be done is to set forth in asystematic survey the main lines

    of the law of the time, as it ex-ists in English-speaking landswith a common legal inheritance,setting forth the significant fea-tures of the history, both of thesystem as a whole and of its lead-ing principles, and pointing outthe philosophical presupposi-tions both of the system and ofits rules, principles, and doc-trines.

    One would make a great mis-take if he sought to use such abook as giving him the preciserules attaching definite detailedlegal consequences to definitedetailed states of fact, whichobtain in any one of the forty-eight states of the Union, or inCanada or Australia, at the mo-ment of its publication. But thisdoes not mean that one cannotwith such a book come to knowmuch of the history, the philo-sophical basis, and the system

    of the law which obtains in thoseseveral jurisdictions, and of theprinciples on which its detailedrules proceed and the authorita-tive grounds of decision and ofadvice to those who seek coun-sel as to their rights and duties,which that system affords.

    A distinction must be madebetween law and laws. Law issomething more than an aggre-gate of laws. It is somethingwhich gives vitality to rules of law

    and makes it possible to usethem as instruments of justice.Law develops laws to meet situa-tions which the lawmaker forgotor did not appreciate. It limitsthem to their reason and spiritwhen the lawmaker fails to pur-sue his end with exactness. Itsupplies gaps in the legislatorsscheme when he fails to pursuehis end with completeness. Law

    has a continuity, while rules oflaw are set up, decay and areabrogated. Law has a vitality andtenacity that survives repeal oflaws. One may know where tofind every rule of law which ob-tains in the time and place andyet not know what to do with one

    of them unless he knows law.Law is something complex, in-volving a regime, a body of pre-cepts, with rules, principles, con-ceptions and standards, a tech-nique and received ideals, and a

    judicial and an administrativeprocess; not merely an aggregateof rules. If one cannot use anencyclopaedic survey as an indexof laws, he can use it as an intro-duction to law. He can find in itthe different fields of the legalorder laid out systematically, themain problems with which itmust deal set forth and ex-plained, and the historicallygiven materials, from which rulesof law are made or in which theyare found, indicated in their gen-eral forms and with respect totheir underlying principles.

    Law is experience devel-oped by reason and reasontested by experience. Experience

    and reason have co-operated inthe history of civilization in find-ing or establishing certain modesof adjusting human relations andcertain precepts for ordering hu-man conduct which have had uni-versal recognition since the clas-sical Roman law. They have co-operated in finding many morewhich obtain and have long ob-tained throughout the English-speaking world. They have co-op-erated in discovering many more

    which have proved themselveseffective instruments of justicein five generations of Americanlife. It is a chief function of anencyclopaedic survey to set forthand explain these universal orpervading precepts.

    Roscoe Pound

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    Note On Citations,Abbreviation & TechnicalLanguage

    A lawyers library consists oftwo kinds of books: first, collec-tions of cases, statutes and con-stitutions, which are his onlybooks of authority; and, sec-ondly, index books, includingtextbooks, encyclopaedias, di-gests, citators, annotations, and

    handbooks of all kinds. Skill inthe use of these indexes, bywhich the lawyer is enabled withdue diligence to find every au-thority pro or con on any pointthat comes before him, is one ofthe principal objects of legaltraining. The layman cannot ex-pect to vie with the lawyer in suchan undertaking. To him, thesebooks are repositories of law,history, business fact, humanexperimentation, but he must be

    guided through them. Citationsin the work before us are limitedto this function of guidance.Some parts of the work call formore of this guidance than oth-ers, and some authors have agreater predilection for it thanothers. No attempt has beenmade to enforce uniformity inthis regard.

    In a few places rather elabo-rate bibliographical data havebeen included. These, however,

    refer to social, economic andpolitical discussions rather thanto lawyers books.

    Most of the references,though written in the traditionallawyers form, will be clear to theintelligent lay reader. He needonly remember that the initialletters referring to the UnitedStates or to any of the states in-dicate the series of official re-ports of the highest court of the

    jurisdiction in question. The fig-ures preceding the initials rep-resent the volume; those follow-

    ing represent the page. Some-times a section of the country isreferred to in the abbreviationsN. E., N. W., S. E., S. W., Pac., So.These refer to the reprints ofcases for groups of states cover-ing in the aggregate the entireUnited States, in the West Pub-lishing Companys series. Otherabbreviations, referring to thethousands of scattered volumesof English and American Reportsor to law journals, will be found

    fully explained in the several dic-tionaries and encyclopaedias oflaw. In fact, the most importantof them will be found in the or-dinary large dictionaries.

    It has, of course, not beenpossible, nor would it have beendesirable, to avoid altogether theuse of technical legal terms. Theauthors have generally donesomething towards definingsuch terms in their contexts.Further assistance in clarifying

    them will often be found by ref-erence to the general index atthe end of this series.

    Nathan Isaacs

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    Contents22222 General Introduction

    44444 Citations, Abbreviation & Technical Lan-

    guage

    77777 I. FUNDAMENTAL CONCEPTIONS1. The Nature of Law

    (1) Legal Order(2) Aggregate of Laws(3) Judicial ProcessAdministrative Process

    2. The Elements of a Body of Law(1) Precept Element(2)Authoritative Technique(3) Ideal Element

    3. Relation of Law and Morals

    (I) Analytical(2) Historical(3) Philosophical

    1414141414 II. HISTORY OF THE COMMON LAW1. The Common Law As a System

    (1) Civil Law(2) Equity(3) Statute Law(4)Common Law As a System

    (a) Modern Roman Law(b)Common Law

    2. English Law before the Norman Conquest(1) End of Primitive Law. . .(2)Means of Attainment of End(3)Characteristics of Primitive Law(4)Anglo-Saxon Tribunals

    3. The Development of the Common Law.(1) The Kings Peace

    1. Extension of the Kings Jurisdiction2. Truce or Peace in Anglo-Saxon Law

    (1) Church Peace(2) House Peace(3)Peace of Public Places & Assemblies(4) Kings Peace

    3. Absorption of Other Formsby the Kings Peace

    (2)The Kings Writ(3) State Law and Church Law(4)The Kings Courts(5)The Legal Profession(6)The Custom of the Realm(7)Precedents and Case Law(8) The Jury(9)The Supremacy of the Law

    4. The Development of Equity5. The Law Merchant6. The Legislative Reform Movement .7. The Future of the Common Law

    3535353535 III. SOURCES & FORMS OF LAW1. In General2. Legislation3. Judicial Decisions4. Books of Authority

    4040404040 IV. THE COMMON LAW IN AMERICA1. Reception2. Forms of the Common Law in America.(1) Judicial Decisions of the Old English Courts.(2)American Decisions since the Revolution.

    (3) Judicial Decisions in England and the OtherCommon-Law Jurisdictions since the Revolution(4) The Law Merchant(5) The Canon Law(6) International Law(7)English Statutes before the Revolution.

    4444444444 V. COURTS THEIR ORGANIZATION AND JURISDICTION1. Self-help

    (1)Self-defense(2)Recaption of Chattels

    (3) Entry on Land in Case of Disseisin.(4)Abatement of Nuisances(5) Distress(6) Seizure of Heriots

    2. Courts in General(1) English Courts at the Revolution .(2) Formative Period of American Law(3)American Judicial Organization

    (a) Supreme Tribunal(b) Superior Courts(c) Probate Courts(d)Magistrates Courts

    (4)Unification of the Judicial Department(5)Bar of the Court

    3. Jurisdiction

    5151515151 VI. THE COMMON-LAW ACTIONS1. Writs for Recovery of Property or Perfor-mance of a Duty2. Writs for Recovery of Damages3. Common-Law Actions in America

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    5555555555 VII. PROCEDURE1. At Law

    (1)Beginning of Action(2) Pleadings(3) Jury Trial(4) After Verdict(5) Judgment(6) Costs(7) Appeal for Review

    2. In Equity(1) English Bill (Petition)(2)Demurrer, Plea or Answer(3)Testimony(4) Hearing(5) Decrees

    6262626262 VIII. RIGHTS1. InterestsClassification of Interests

    (1) Individual Interests(2)Public Interests(3) Social Interests

    2. Means of Securing Interests3. Scheme of Legal Rights at Common Law

    6868686868 IX. PERSONS1. In GeneralPersonality and Capacity

    (1)Personality(2) Capacity

    2. Infancy3. Coverture

    4. Insanity and Idiocy5. Conviction of Felony6. Alienage7. Juristic Persons (Corporation)

    7474747474 X. ACTS1. Nature and Consequences2. Representation of Acts3. Legal Transactions

    (1)Form of Legal Transactions(2)Grounds of Avoiding Legal Transactions

    (a) Force (Duress)

    (b) Fraud(c) Mistake

    (3)Qualifications of Legal Transactions4. Torts

    Jural Postulate ICorollary of Jural Postulate IThe Named Torts

    Jural Postulate IINegligence

    Jural Postulate IIILiability without Fault

    8585858585 XI. OBLIGATIONS1. Nature and Classification

    Jural Postulate IV2. Obligations Arising from Legal Transactions

    (1) Contracts(a) Formal Contracts(b) Real Contracts(c) Simple Contracts

    (2) Express Trusts3. Obligations Arising from an Office or Calling4. Obligations Arising from Fiduciary Relations5. Obligations Arising from Unjust Enrichment6. Accessory Obligations7. Transfer of ObligationsAssignment8. Extinction of Obligations

    9797979797 XII. PROPERTY1. Nature of Property and Possession .

    Jural Postulate V

    2. Things Not Capable of Ownership .3. Legal and Equitable Ownership4. Kinds of Property

    (1) Real Property(2)Personal Property

    5. Tenure6. Estates

    (1) Freehold Estate(2)Estates Less Than Freehold

    7. Co-ownership8. Incidents of Ownership9. Rights in the Property of Others

    (1) Servitudes(2) Securities10. Acquisition of Property

    (1)Modes of Original Acquisition(a) Title by Occupancy(b) Alluvion(c) Sale of Property for Taxes(d)Sale under a Judgment in Rem.(e) Adverse Possession(f) Prescription(g) Confusion(h) Accession

    (2) Derivative Acquisition

    (a) By Judgment(b) By Marriage(c) By Bankruptcy(d) By Succession(e) By Gift(f) By Sale(g) By Conveyance

    112112112112112 BIBLIOGRAPHY

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    Chapter I

    FundamentalConceptions

    We may take for our startingpoint in the study or expositionof law the idea of civilizationthe raising of human powers totheir highest unfolding, that is,the maximum of subjection ofexternal nature and the maxi-mum of subjection of internal orhuman nature to the purposes ofhuman existence. Put in biologi-cal terms, it means the maximumadjustment to an environmentwhich is twofold, both physical

    and human. If mans progress inthe subjection of physical natureis the more conspicuous in re-cent times, yet we must remem-ber that it is the control of inter-nal, of human nature that makesany extensive conquest of exter-nal nature possible. Men must befree from the necessity of con-tinually defending themselvesagainst attack by their fellowmen if they are to conduct thepatient, detailed, scientific inves-

    tigations which are behind inven-tions. Maintaining, furtheringand transmitting the accu-mulated experience of this con-trol is nothing less than a condi-tion of life in a crowded world.Without it, the great populationswhich civilized society makespossible could not exist. It isbehind the division of laborwhich is at the bottom of the eco-

    nomic order. This maintainingand furthering of civilization isbrought about through socialcontrolthe adjustment of therelations of men to other men,the ordering of the conduct ofeach man 50 as to comport withthe activities of other men, andthe adjustment of the relationsof individual men and groups ofmen to the organized socialgroup, through the applicationto each man of the pressure of

    his fellow men.As an illustration, considerthe queue before the ticket win-dow at a theater when, perhaps,more are seeking to get in thancan be accommodated. If thoseseeking admission did not lineup, or were not lined up in thisway, it might not be possible inthe scramble for any one to getm. Compare the rush to get outfrom a burning building; few es-cape and many are trampled. By

    ordering the buying of tickets, orthe exit from the burning build-ing, as many are served as pos-sible, with the least friction andwaste. This ordering may resultfrom customary recognition thatlining up and taking ones turnis the thing to do, or it may beconstrained by a policeman. Ineither event, social controlmakes it possible to do the most

    for the most people. As the say-ing is, we all want the earth.There are many of us, but thereis only one earth. So there is, asit were, a great task of socialengineering, of making thegoods of existence, if they can-not go round, go round as far aspossible. This is what we meanby saying that the end of law isjustice. We do not mean justiceas an individual virtue, we mean

    justice as a regime. We mean

    such an adjustment of relationsand ordering of conduct as willmake the goods of existence goround as far as possible with theleast friction and waste.

    Law is not the whole of so-cial control. Social control maybe exercised by a kin organiza-tion, or by a religious organiza-tion, or by a political organiza-tion of society, or by all of theseconcurrently. Since the sixteenthcentury, politically organized

    society has become paramount.Kin organization, for any groupslarger than the family, has bro-ken down, and as to the family,where the law of a generationago conceded large powers toparents, and that of a centuryago recognized large powers inthe head of the household, to-day truancy and incorrigibilityare matters for juvenile courts,

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    and those courts and domesticrelations courts may interferealmost, if not to the verge of,superseding parental authority.Also since the Reformation, reli-gious organizations havesteadily given way as agencies ofsocial control In recent times,

    voluntary associations of all sortshave taken on much importancefor this task. Professional andtrade associations, labor unions,and social clubs, with their codesof ethics or standards of what isdone and what is not done, andtheir internal discipline, are sig-nificant agencies. But they allcarry on in subordination to thelaw. Courts may and do reviewexpulsions, the only means bywhich such organizations maymake their disciplinary codes ortraditions effective. The law hasa monopoly of force. Wheneveremployed by other agencies ofsocial control, force is held by lawwithin defined limits and its ex-ercise is reviewed.

    1. The Nature of LawIn current usage the term

    law is used in three senseswhich it is important to distin-

    guish:(1) One sense is the LEGALORDER, which has been spokenof above, the regime of orderinghuman activities and adjustinghuman relations through the sys-tematic application of the forceof politically organized society.The force of a politically orga-nized society may be exercisedarbitrarily and unsystematically,as for instance, in the case ofHarun al Raschid walking the

    streets of Baghdad in disguise atnight and relieving the tedium ofroyal existence by making use ofhis authority to judge delin-quents. If one rogue made aclever jest, or told a good story,he might go free, while an-othermuch less dangerous malefactor,who added to a trivial offense theheinous crime of boring the Com-mander of the Faithful, might be

    given the extreme penalty. Thisis the antithesis of the legal or-der, which implies a systematicordering, seeking uniformity andequality of operation.

    We use the term law in thesense of the legal order when wespeak of respect for law or of

    the end (or purpose) of law, orof law and order. Respect forlaw means respect for the legalorder. One may respect the re-gime of social control ordered bylaw and yet detest some particu-lar item of the body of legal pre-cepts. For example, many law-abiding persons, who respectedand upheld the legal order, re-sisted the fugitive-slave laws,and recently many such personsat least gave no more than a lit-eral and passive support to theNational Prohibition Act.

    (2) The oldest and longestcontinued use of the term lawis to mean the AGGREGATE OFLAWS- the whole body of legalprecepts which obtain in a givenpolitically organized society; thebody of authoritative grounds ofor guides to judicial and admin-istrative action, and so of predict-ing such action, established or

    recognized in such a society. Inthis sense, we speak of systemsof law, of justice according tolaw, of the common law. Wemean the body of received orestablished materials on which

    judicial and administrative deter-minations are expected to and,on the whole, do proceed.

    (3) In a third sense law isused to mean what we may bet-ter term, with Mr. JusticeCardozo, the JUDICIAL PROCESS

    the process of determining con-troversies, as it actually takesplace in the courts, and also aswe conceive it ought to takeplace. To this today we must addthe ADMINISTRATIVE PROCESS -that of administrative determina-tion by boards and commissionsand administrative officers,whether as it actually takes place,or as it is conceived it ought to

    take place. Many recent writersare using law in this sense, forexample, to mean whatever isdone officially. But in the olderand stricter sense we may saythat some things are done offi-cially which are not done accord-ing to law. Law is not what is

    done, but a guide to how it is tobe done. It would be more trueto say, with a recent Russian ju-rist, that in an absolute regimethere is no law, or rather only onerule of law, namely, that there areno laws but only administrativeordinances and orders.

    When we speak of the Historyand System of the Common Law,or of Anglo-American law, we uselaw in the second sense.

    But, it may be asked, why dowe need law in the second sense?Cannot the legal order be carriedon by a judicial and an adminis-trative process, or even by anadministrative process only,without law in the sense of anelaborate body of authoritativeguides to decision? The answermust be that conceivably it can.But in any complex social order,in any highly developed eco-nomic order, the judicial and ad-

    ministrative processes cannotoperate uniformly, equally andpredictably except in accordancewith authoritative norms (pat-terns or models) of determina-tion and an authoritative tech-nique of developing from themthe grounds of decision.

    An example of the part whichthese authoritative materialsplay in guiding thejudicial pro-cessmay be seen in a case whichoccurred in an oriental country

    subject to the common law. A lawprescribed penalties for passingwithin a certain distance in frontof a religious procession, or mak-ing noises along the line of sucha procession. Another provisionin the law gave the right of wayto the fire brigade responding toan alarm of fire. It happened thatsuch a religious procession wasmoving on a street, and at the

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    same time the fire brigade, re-sponding to an alarm, was pro-ceeding on a cross street towardthe intersection. The fire brigade,clanging bells and blowing si-rens, sought to cross immedi-ately ahead of the procession,and, as the neighborhood was

    one in which religious animosi-ties ran high, outraged partisansof the procession sought to over-turn a hose wagon. They wereprosecuted at the instance ofadherents of a rival sect, whilethe firemen were prosecuted atthe instance of adherents of thesect whose procession was inter-fered with. Each relied upon asection of the law. For the firebrigade, it was argued that thepublic safety was the highest law,and hence that the section giv-ing it the right of way shouldprevail. For those who hadsought to vindicate the rights ofthe procession, it was arguedthat duty to God was the su-preme concern to which all elseshould give way. Happily, therewas a rule in the English commonlaw that where there are incon-sistent provisions in a statute,the one last in order shall be

    taken as the last expression ofthe legislative will and shall gov-ern, and on this basis the fire-men prevailed. Here it was nec-essary to have an authoritativeground of decision which bothparties could accept withoutderogation from their dignity.Reason tested by experience,and experience developed byreason give us solutions of suchcases where otherwise the wis-dom of Solomon would scarcely

    suffice.Taking the term in the sec-

    ond sense, what is the nature oflaw? This question has been abattleground of jurisprudence,partly because law may be lookedat from a number of points ofview, partly because more thanone element goes to make up thebody of authoritative guides todetermination and grounds of

    decision, and partly becausemore than one kind of legal pre-cept goes to make up the ele-ment which has been chieflylooked at in discussion of thesubject.

    Law is often said to be anAGGREGATE OF LAWS, and from

    that standpoint it is defined bydefining a law. But a law may beconsidered from the standpointof the citizen subject to it, fromthe standpoint of the judge oradministrative official called onto apply it, or from the stand-point of the counselor called onto advise as to the probable ac-tion of courts or of administra-tive officials on a given state offacts. Accordingly, there are noless than four theories as to thenature of a law. One is the com-mand or rule of conduct theory.It holds that a law is a commandof the sovereign, that is, of thelaw-making authority of a politi-cally organized society, enjoiningsome particular course of con-duct or prohibiting some particu-lar item of conduct. In otherwords, a law is a rule of conductestablished or recognized by thestate. This is from the standpoint

    of the citizen at the crisis of ac-tion. Historically, it is the oldesttheory.

    Another is the threat theory.This also is from the standpointof the citizen. But whereas thecommand theory thinks of thecitizen as wishing to do right andseeking guidance in a commandof the sovereign prescribingwhat is right conduct, the threattheory thinks of him as wishingto do something and consider-

    ing what may happen if he doesit. It conceives of a law as athreat of state force, prescribingwhat action on the part of stateofficials, wielding the force of po-litically organized society, islikely to follow upon certainstates or situations of fact.

    A third is the norm ofdeci-sion theory. This is from thestandpoint of the judge or ad-

    ministrative official at the. crisisof decision. It holds that a law isan imperative or authoritativenorm or model or pattern of de-termination of controversies orof determining the course of ad-ministrative action. It considersthat laws may be regarded as

    rules of conduct only becausethey are rules which tribunals willapply to conduct.

    A fourth is the predictiontheory. This is from the stand-point of the counselor at law,called on to advise clients as towhat they may do and what theymay not do with assurance ofbeing backed up or at least notinterfered with by those whowield the force of politically or-ganized society. It regards a lawas a basis of prediction as to howcourts and administrative offi-cials will act on a given situationor state of facts.

    One of these points of viewis as valid as another. But thebasic idea seems to be that of anorm or pattern of determinationwhich, as it is generally followedand applied by courts and admin-istrative officialsas they find init an authoritative ground of de-

    cisioncan be looked at as a ruleof conduct or as a threat of stateforce or as a basis of prediction.

    2. Elements of a Body of LawBut there is more in law than

    an aggregate of laws. Three ele-ments must be recognized: aprecept element, a technique el-ement, and an ideal element.

    (1) The PRECEPT ELEMENT isthe body of laws already con-sidered. This element, however,

    is by no means as simple as hasbeen supposed. It is made up ofrules, principles, precepts defin-ing conceptions, and preceptsestablishing standards.

    Rules of law are legal pre-cepts attaching a definite, de-tailed legal consequence to adefinite detailed state of facts orsituation of fact. This is the ear-liest form of legal precept. In-

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    deed, such rules are the stapleof primitive law. For example: Inthe Laws of Hammurabi (King ofBabylon, 20672025 B.C.), it isprovided: If a man has openedthe waters and flooded theplanted field of his neighbor, heshall measure back ten gurof

    corn for each gan. In the RomanXII Tables (450 B.C.): If the fa-ther sell the son three times letthe son be free from the father.In the Salic Law (between 486and 507 A.D.): If any one havecalled another fox, he shall beadjudged liable in three shil-lings. In the Laws of Ethelbert(King of Kent, about 600 A.D.):Let him who stabs anotherthrough an arm, make bot[repa-ration] with six shillings. In mod-ern law, penal codes, the law ofproperty, and the law of commer-cial transactions are full of suchrules. For example: If .. . myhorse is taken away and I findhim in a common, a fair, or apublic inn, I may lawfully seizehim to my own use 3 Blackstone,Commentaries on the Laws ofEngland, 5). Rules may be legis-lative in origin or may be custom-ary, originating in our law in ju-

    dicial decision.Principles are historically thework of lawyers and law writerswho come to distinguish onecase from another and to find ageneral proposition logically pre-supposed by the distinction.They are traditionally receivedand thus are authoritative start-ing points for legal reasoning. Alegal principle does not attachany definite consequence to anydefinite state of facts. It gives a

    starting point for judicial reason-ing where a rule is to be foundfor a new situation of fact orchoice is to be made betweencompeting rules of equal author-ity, or a rule is to be interpreted.Thus it is a principle of the Ro-man law, adopted by the com-mon law, that one man is not tobe enriched unjustly at the ex-pense of another. Hence if one

    who owes another forty dollarspays fifty by mistake, or if onepays for a horse and it appearsthat at the time of the agreementthe horse was dead, unknown tothe parties, or if money is loanedto a company in a transaction inwhich its charter does not per-

    mit it to engage, such cases be-ing within the principle, recoveryof the money not intended as agift but held without equivalenton a mistake or on failure of theintended purpose is allowed asif the recipient had agreed to re-store it.

    Certain precepts define con-ceptions, that is, generalized cat-egories into which we may putparticular situations of fact,whereupon certain rules, prin-ciples and standards becomeapplicable. These are worked outby law teachers and law writersand become traditionally re-ceived. Examples are: Trust, aholding of title to property forthe benefit of another or for acharitable purpose; Sale, a trans-fer of property in a thing for aprice in money; Bailment, a de-livery of possession of a chattelfor a specific purpose; Public Util-

    ity, an enterprise, individual orincorporated, which renders apublic service and devotes prop-erty thereto.

    Also certain other preceptsestablish standards, that is, cer-tain limits of conduct from whichone subject to the standard de-parts at peril of liability or of theinvalidity of what he does, to beapplied according to the circum-stances of each case. They arethe chief reliance of modern law

    for individualization of applica-tion and are coming to be appliedto conduct and conduct of enter-prises over a wide domain. Suchstandards are: Due care, thestandard exacted of one pursu-ing a course of conduct in whichhe may reasonably anticipateothers may receive injury; fairconduct, exacted of a fiduciary;reasonable service and reason-

    able facilities, exacted of a pub-lic utility; fair competition, ex-acted of those engaged in com-petitive acquisition. Here due,fair, and reasonable are notdefined precisely. They involve acertain measure of judgment inthe light of experience, and of-

    ten a certain moral element. Nodefinite, detailed consequence isattached to any definite, detailedstate of facts, nor is there a start-ing point for legal reasoning.There is a precept requiring ac-tion to keep within certain limitswith a liability if it does not. Dueprocess of law, in American con-stitutional law, is such a stan-dard. Lawmaking and adminis-trative action must not be arbi-trary and unreasonable. Difficul-ties have arisen from treatingthese standards as if they wererules analogous to rules of thelaw of property.

    It may be asked, why shouldthere be such a complex machin-ery of legal precepts? Why needthere be anything more thanrules, precepts affixing definite,detailed consequences to defi-nite detailed states of fact, sothat every one could know with

    absolute assurance exactly whathis rights and his duties werewhat he could do lawfully andwhat notand judges would dono more than find the exactlyappointed rule for each case?Why have, in addition, principles,conceptions, and standards?There are two reasons, one ap-plicable to principles and concep-tions, the other applicable tostandards.

    It is a wholly mistaken notion

    that there can be a complete andself-sufficient body of rules of lawproviding for every possible case.Men have often had this notion.Those who drew Frederick theGreats Code (1749) had it andprovided that the judges werenot to have the power of inter-pretation but were to be confinedto a mechanical logical applica-tion of the prescribed rule to the

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    case for which it was meant.American legislators have some-times tried to act upon this no-tion. Experience has alwaysshown its futility. The possibili-ties of controversies are infinite;bodies of rules are finite. No law-maker, even dealing with the

    simplest subject, has ever beenable to anticipate all the ques-tions which arose on the subjectof his legislation. The only wayto insure certainty and predict-ability for new cases, not gov-erned by any rule, which con-stantly arise, is to work out prin-ciples behind rulesthe prin-ciples they logically pre-supposeand draw more rulesfrom those principles, or to workout conceptions, i.e., categoriesinto which cases may be put, andattach rules and principles andstandards to those conceptions.The rapid development of everysort of new instrumentality ofcommunication in the last cen-tury and the multiplying of dis-coveries and inventions calledexceptionally for a process ofthis sort. Stage coach, canal, rail-way, trolley, motor vehicle, air-plane, succeeded each other

    faster than detailed rules couldbe worked out. The Middle Ageshad established that the inn-keeper and the carrier exercisedpublic callings. The conceptionof a common carrier was ex-tended from the carter and thestage coach to the railway,thence to the trolley line, thenceto motor bus and air line. Butalong with these came gas light-ing, telegraph, telephone, elec-tric light, and recently electric

    power. The conception was atfirst extended to these until thewider conception of a public util-ity was worked out from the re-sult. It was only in this way thatthe law could keep pace with thechanges in the past hundredyears.

    Principles and conceptionslead to rules, but some things arenot adapted to treatment by rule

    and must be dealt within anotherway. Bergson teaches us thatthings in space repeat them-selves while things in time donot. Conduct, which is in time,never exactly repeats itself. Eachitem is to some extent unique.The legal order must find a rea-

    sonable, workable balance be-tween the general security, whichcalls for rules, and the individuallife, where, as life is a continualadjustment to change, rules can-not be made detailed enough norenacted fast enough to do thework demanded of them. Wherethe law has to do with interestsof substancethe economic or-derrules in great detail arepossible. Where it has to do withinterests of personality, it is oth-erwise. It is possible and conve-nient to have blank deeds, blankbills of sale, blank promissorynotes. Nothing more is called forthan to fill in the blank spaceswith dates, descriptions andamounts. It is not possible toprovide a blank automobile acci-dent. Courts and writers tried invain in the last century to reducenegligence and contributory neg-ligence to rules analogous to

    those of the law of property. Suchattempts have always proved fu-tile.

    (2) A second element is anAUTHORITATIVE TECHNIQUE offinding the grounds of decisionof particular cases in the authori-tative body of precepts and of de-veloping and applying them. Thisis the most characteristic andenduring element of a legal sys-tem. By way of illustration, twoexamples of difference of tech-

    nique between the common lawand the modern Roman or civillaw will suffice. The common-law

    judge or lawyer reasons by anal-ogy from judicial decisions butnot from statutes. He thinks of

    judicial decisions as not only giv-ing rules, where there are nonein legislation, but as yieldingprinciples to be found by com-parison and analysis of cases and

    by analogical reasoning. Hethinks of statutes as yieldingonly rules for the cases whichthey cover. He does not look inthem for principles or analogiesfor the cases they do not cover.On the other hand, the civil-law

    judge and lawyer and law writer

    look to legislation not only forrules, but also for principles andanalogies. They habitually rea-son from legislation by analogyto new cases not covered by leg-islation, but never from judicialdecision. To them the course of

    judicial decision may yield a rulefor a definite single. situation offact, but not a principle nor ananalogy. Again, in the commonlaw a single decision in the courtof ultimate review in a given ju-risdiction establishes a rule inthat jurisdiction for the situationof fact involved in the decision,and may be the basis of findinga principle for analogous cases.In the civil law, a single decisionhas no authority beyond the caseand the parties thereto. Only acourse of decision of the samequestion in the same way canestablish a rule. It will be seenthat these items of technique

    differ from the legal precepts towhich they are applied. They donot attach any definite, detailedconsequences to any definite,detailed states of fact, nor arethey starting points for legal rea-soning. They are modes of find-ing rules and of conducting le-gal reasoning. They are mentalhabitstraditional habits gov-erning judicial and juristic crafts-manship.

    (3) Third, there is an IDEAL

    ELEMENT: a body of received,authoritative ideals as to whatsocial control is about, as to theend or ends of the legal order,and so as to the purpose of lawand what laws should be and howthey should be interpreted andapplied. Professional and judicialideals of the social and legal or-der are a decisive factor in legaldevelopment, since men tend to

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    do what they think they are do-ing, and judges to do what theyfeel they ought to do. Such ide-als may be and many such areso generally established, with theweight of authoritative traditionbehind them, as to be a form oflaw in the strictest analytical

    sense. An example of such re-ceived and established ideals isthe ideal of a universal law mer-chant, leading courts to reasonas to what such a universal lawought to be instead of giving ef-fect to customs of local business,leading the Supreme Court of theUnited States formerly to distin-guish between rules of property,where it followed local decisions,and questions of commercial lawwhere it laid down one rule forthe whole land, and leading morethan one court to insist that lo-cal decisions on questions ofcommercial law were not to havethe same weight as precedentsand decisions on questions ofproperty law. Other examples arethe ideal of American institu-tions or free institutions so fre-quently applied by Americancourts in the fore part of the lastcentury, and the traditional com-

    mon-law antipathy to monopo-lies. Such ideals are decisive inchoosing starting points for le-gal reasoning, in choosing fromamong competing analogies ofequal authority, in interpretation,and in application of standards.

    3. Relation of Lawand Morals

    In connection with the idealelement of law we are broughtto one of the difficult fundamen-

    tal questions of the science oflaw, namely, the relation of lawand morals. One difficulty in thisquestion is that both terms areused in more than one sense. Wehave already seen three uses ofthe term law. The term mor-als is used in two senses, oneto mean an actual body of ethi-cal custom in some time andplacea body of received pre-

    cepts as to what is done andwhat is not done, and, second, abody of speculative or taughtpropositions, organized on philo-sophical principles, as to whatconduct ought to be. The firstmight be called morality, thesecond, morals. So the question

    comes to this: what is the rela-tion of the legal order, of thebody of precepts in which are tobe found the grounds of judicialdecision and administrative de-termination, and of the judicialand administrative processes, orof all three, to the morality of thetime and place and to systemsof morals.

    There are three ways of look-ing at this matter: analytical, his-torical, and philosophical.

    From the ANALYTICAL stand-point a sharp line is drawn be-tween the legal precept, recog-nized and established as an au-thoritative ground of decidingcases and determining ad-ministrative action, and a preceptof morality (ethical custom) or aprinciple of morals, not receivedor established as a ground ofdecision, but received as a canonof good or upright conduct in the

    ethical custom of the public orin systems of morals. For ex-ample, it used to be held dis-honorable and unworthy of anupright man to plead the statuteof limitations, or to plead that adebt was contracted while thedebtor was under age. It is per-fectly true that where there is alegal precept definitely coveringa case, questions of morals areexcluded. But this assumes thatthere is a legal precept definitely

    covering the case. If there is not,the moral precept is very likelyto find itself presently incorpo-rated in the law.

    From the HISTORICAL stand-point, ethical custom precedeslaw. Experience of life developsinto ethical customs; men cometo recognize certain norms ofupright conduct. These are for-mulated first as moral laws or

    rules of morals. Then legislatorstake them up and put them inthe form of statutes, or juristswork them into legal principles,or courts put them in the formof authoritative grounds of de-ciding cases. Many examples ofthis process of development

    could be cited from legal history.The most striking example inAmerican law is the developmentof mining law out of the customsof miners on the public domainin the Pacific and Rocky Moun-tain States at a time when therewas no effective legal orderthere. But this process is not ascommon, nor as universal, as his-torical jurists have assumed. Forthe most part, jurists and courtshave worked not so much byturning customs of popular ac-tion into legal precepts as by rea-soning by analogy, and thus de-veloping customs of judicial ac-tion and juristic thinking. Thereis a tendency to understand, ortry to understand, the unknownor little known by the known orbetter known. Much of legal rea-soning is a choice between com-peting analogies of equal author-ity, determined by applying the

    authoritative technique in thelight of authoritative ideals. Butto a certain extent, greater atsome times than at others, cus-tom is formative law.

    From a PHILOSOPHICALstandpoint, we start from theproposition that the end of thelegal order, and so of law, is jus-tice.

    Courts seek to make the au-thoritative precepts achieve jus-tice and so, from that point of

    view, the ultimate criterion of thebinding force of a legal preceptis whether it is a just precept

    just in its content and just in itsapplication. If precepts are notin accord with the ideals of jus-tice which prevail in the time andplace, they tend to disappear orto be reshaped to those ideals.From the time of the contact ofRoman lawyers with Greek phi-

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    losophers, there has been atheory of natural law, i.e., of anideal law, to which positive lawought to conform. This idea, de-veloped by medieval jurist theo-logians, and later by philosophi-cal jurists, has been a great cre-ative force in legal history. Along

    with it, there came into our lawan idea of the Germanic law inthe Middle Ages that there wasa fundamental law above the rul-ing power in society. The kingruled under God and the law.The English courts used this ideain the seventeenth-century con-tests between the courts and thecrown, and it came into Ameri-can legal and political thinking.But the most that can be said forit today is that it expresses a tra-ditional ideal which affectschoice of starting points for le-gal reasoning, interpretation ofprecepts, and application of stan-dards.

    4. Points of Contactbetween Law and Morals

    A solution may be foundin recognizing four points of con-tact between law and morals.One such point of contact lies in

    JUDICIAL DISCRETION, in thingsleft to the personal judgment ofjudge or tribunal rather than re-ferred to a legal precept. The law,however, fixes the categories ofcases which are left to discretion.A court has no power to exerciseit except in cases where it is soprovided by law. Also discretionmust be exercised as such. If,when something is left to thediscretion of court or judge, the

    tribunal acts arbitrarily insteadof using discretion, this is calledabuse of discretion, and a review-ing court will set its action aside.For example, where a trial judge,having discretion to limit thetime for argument to the jury,limited one side in a difficult and

    important case to five minutes,a new trial was granted. But ex-cept for such abuse of discretion,where a matter is left to the dis-cretion of the tribunal, its actionwill not be reviewed.

    A second point of contact isin JUDICIAL FINDING of the lawwhen no precept is at hand di-rectly governing a case to bedecided. In certain circum-stances, courts have to make, orcreatively find, a rule to governa new case. They cannot make arule out of whole cloth as the leg-islature can. They must apply theauthoritative technique to theauthoritative materials. But, ashas been said, there are oftentwo or more possible analogiesof equal authority, from whichthe court must choose the mostsatisfactory for the starting pointof its reasoning. But in what re-spect satisfactory? In a great

    number of cases the answermust be, morally satisfactory.A third point of contact

    of law and morals is in INTERPRE-TATION, that is, genuine inter-pretation, namely, finding outwhat those who formulated a le-gal precept meant by it as tosome case or state of facts thatthey had in mind. Here we mustlook primarily to the literal mean-ing of the words used. But they

    may be ambiguous or, if notambiguous, may not give a sat-isfactory result. Here, again,satisfactory frequently meansmorally satisfactory, and a courtmust fall back on the intrinsicmerit of the possible interpreta-tions in the light of morals. This

    is especially true in a type of in-terpretation which requires acourt to determine what the law-maker must be taken to havemeant with respect to a questionwhich was not present to hismind; what he would have meantif he had thought of the particu-lar question, as he did not. It maybe that the statute is meant tocover the whole subject withwhich it deals, excluding the tra-ditional law. In that case, if thelawmaker does not think of andprovide for some case, yet thecourts must decide by the stat-ute. In such cases, the most thatcan be done is to consider theintrinsic merit of the possibleinterpretations as instruments of

    justice.Finally, there is a point of

    contact of law and morals in theAPPLICATION OF LEGAL STAN-DARDS. As has been said, such

    terms as due care, reasonableaction, fair conduct, fair com-petition, involve a certain moral

    judgment in their application.This often makes applicationvery difficult, and it is here ratherthan in cases involving rules orprinciples, that judges are likelyto divide in opinion. Standardsmust be applied by a moral judg-ment guided by reason in thelight of experience.

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    Chapter II

    History

    of Common Law

    1. The Common LawAs a System

    We use the term common lawin four senses:

    (1) As distinguished fromthe CIVIL LAW or modem Ro-

    man law, it is used to mean thesystem of law, i.e., the system ofauthoritative materials for theguidance of judicial and admin-istrative action, which obtainsgenerally in the English-speakingworld.

    (2) As distinguished fromEQUITY, it is used to mean thatpart of the system of the com-mon law which grew up in thekings courts at Westminster

    from the thirteenth to the sev-enteenth century, in distinctionfrom that part which grew up inthe Court of Chancery.

    (3) As distinguished fromSTATUTE LAW, it is used to meanthe traditional element in the lawof any common-law jurisdictionin contrast with its legislation.Thus the principle that one who

    acts must act with due care un-der the circumstances is a prin-ciple of the common law; the leg-islative provision that in case ofcontributory negligence in inju-ries to employees of railways ininterstate commerce, the negli-

    gence of the plaintiff and that ofthe defendant shall be comparedand the recovery shall be abatedin proportion, is statute law.

    (4) Sometimes, distinguish-ing the doctrines or precepts ofseventeenth-century English lawfrom those of nineteenth-centuryAmerican law, it is used to referto the old historical elementwhich came over (in legal theory,at least) in the colonial regime.

    Thus, in some states legislationprovides that the common law ofEngland as it stood in the firstyear of James I shall be the ruleof decision. Where the commonlaw is made the rule of decisionwithout any such limitation, itmeans the COMMON LAW AS ASYSTEM.

    In the following pages, un-less otherwise specified, the term

    will be used to mean the systemof law which is behind the legalinstitutions and the laws of En-glish-speaking lands.

    There are two great systemsor traditions of law in the mod-ern world: the modern Roman or

    civil law and English or commonlaw. (a) The modern Roman law,as its name indicates, is built onthe law of Rome. Roman law,beginning as the law of the cityof Rome, became the law of theRoman empire, and so of theancient world. It began to bestudied in the Italian universitiesin the twelfth century, and in theform it got in the universitiesbecame the modern Roman law,and eventually by absorption or

    reception, from the twelfth to theeighteenth century, became thelaw of continental Europe. It isnow the foundation or a princi-pal ingredient of the law in con-tinental Europe, including Tur-key, in Scotland, in Central andSouth America, in Quebec andLouisiana, in South Africa, inCeylon, and in all Spanish, Por-tuguese or Dutch colonies or

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    lands settled by these peoples.(b) The common law, Germanic(i.e., non-Roman) in origin, wasdeveloped by the English courtsfrom the thirteenth to the nine-teenth century, and has spreadover the world with the Englishrace. It now prevails in England,

    Ireland, the United States exceptLouisiana, Canada except Que-bec, Australasia, India except asto Hindus and Mohammedanswith respect to inheritance andfamily law, and the principal Brit-ish colonies except Ceylon anda few which had been colonizedby the French. In general it maybe said that the civil law is a lawof the universities; its oracles arelaw teachers and commentators.The common law is a law of thecourts; its oracles are judges.

    2. English Lawbefore the Norman Conquest

    One of the elements thatwent into the making of the com-mon law was a substratum ofGermanic lawthe law of theGermanic peoples who invadedthe Roman empire in the earlierMiddle Ages. Much is knownabout this Germanic law, but it

    need not be gone into here. Thesignificant history of the com-mon law as a system begins inthe thirteenth century with theestablishment of the common-law courts in the form they keptfor centuries. A brief survey ofEnglish law before the Conquest(or Anglo-Saxon law, as it iscalled) and of the developmentof royal justice down to the thir-teenth century will suffice.

    (1) END OF PRIMITIVE LAW.Anglo-Saxon law was of the typewe call primitive law. Primitivelaw and modem or developed lawdiffer fundamentally with respectto the object they seek to attain.Modern law seeks for its imme-diate end the administration of

    justice. Primitive law seeks for itsimmediate end the preservationof the peace. Modern law seeks

    to satisfy the desire for justice.Primitive law seeks to satisfy thedesire for revenge. Hence primi-tive law aims only at restrainingprivate war and preserving order.Modern law suppresses revenge.Primitive law buys off revenge.

    In primitive law, the help of

    politically organized society, ingeneral, is extended at first onlyto prevent the wrongdoer frominterfering with self-redress bythe injured party. Later, as thestate becomes stronger (asagainst kin groups or religiousorganization of society or both),it begins to take a more activepart in order to prevent a gen-eral disturbance of the peace ofthe community by the blood feudand to keep self-help withinbounds. Other tasks of socialcontrol are left to other agen-ciesto religion and kin disci-pline or the public opinion ofones kinsmen or of his brethrenin some guild or in some primi-tive brotherhood. Very generallyin Western Europe in the earlierMiddle Ages, matters other thankeeping the peace were taken inhand by the bishop in what be-came the courts of the church.

    But the church was not well or-ganized as yet in Anglo-SaxonEngland, and the area of legalaction was very narrow.

    (2) MEANS OF ATTAINMENTOF END. A primitive legal orderseeks to attain its end in threeways:

    (a) By regulating private war.For example, the decree of theDiet of the Empire at Nurnberg

    (1187) required three days no-tice before one prosecuted a feudagainst a wrongdoer. The Anglo-Saxon laws contain many pro-visions against proceeding bydistress (i.e., by seizing thegoods of the wrongdoer to putpressure on him to makeamends) or by other forms ofself-redress without demanding

    justice of the wrongdoer or ob-

    taining the leave of the gemot(i.e., the assembly of the freemenof the county, or of the hundred,as the case might be). Again, thedecree of the Truce of God of theEmperor Henry IV (1085) ordainsthat there shall be peace fromThursday to the end of Sunday

    and also on holy days. On suchdays no feud could be pros-ecuted; all feuds were sus-pended. Even a siege of a houseor castle must be suspended tothe extent that there could onlybe a blockade on those days. Inthe same way, in Alfreds Laws(892-3 A.D.) there is a provisionas to the man who is home-sit-ting. Where ones adversary, i.e.,one who has wronged him andwill not do justice, keeps to hishome, one must give him noticeand blockade him seven days inorder to starve him out beforemaking an assault on the house.The Germanic law was largelybuilt around this institution ofthe peace, this regulation of pri-vate war. As we shall see in an-other connection, it had a largedevelopment in Anglo-Saxon law.The common law grew by ex-tending the idea of the kings

    peace, the idea that certainpeaces were under the protectionof the king, who was affronted ifhis peace was violated. In thatway the kings courts got a gen-eral jurisdiction over wrongs.

    (b) A second means bywhich a primitive legal order at-tains its end of keeping the peaceis by satisfying or endeavoringto satisfy the desire of the in-

    jured party for vengeance. The

    desire for vengeance is primitiveand deep-rooted. The blood feudis a staple phenomenon of primi-tive society. As a legal order de-velops, the injured party is re-quired to accept a compositionfor his vengeance, and is pre-vented from helping himself. Thenext step is to enable him tocompel payment of the compo-sitionto compel the wrongdoer

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    to buy off his vengeance. Theendeavor to satisfy the individualdesire for vengeance is the firststep toward a wider conceptionof the end of the legal order. It isthe first step toward recognitionof an end beyond mere keepingof the peace. It is a step toward

    thinking of the peaceable order-ing of men as but a means to-ward some end, the achievementof which involves the securing ofpeace and order.

    (c) The third means bywhich a primitive legal order at-tains its end of keeping the peaceis by affording some purely me-chanical mode of trial which willobviate all disputes. A rationalmode of trial, a debate, wouldvery likely end in blows and re-sult in exactly what the law wastrying to prevent. Kipling putsinto the mouth of a Punjabifarmer the difficulty as a primi-tive society sees it:

    A good stick is a good argu-ment. It was necessary to resortto some absolutely mechanicalmode of trial which could giverise to no disputes and could notbe suspected of partiality.

    (3) CHARACTERISTICS OFPRIMITIVE LAW. There are sixgeneral characteristics of primi-tive law which we may observein Anglo-Saxon law:

    (a) It was customary in origin(i.e., not legislative), and whenwritten was a compilation of cus-tom, with amendments in thelater compilations only where, bythe union of kingdoms, conflict-

    ing or differing customs of differ-ent groups or localities had to bereconciled. Thus in the Prologueto Alfreds Laws (his kingdom wasa merger of older kingdoms), af-ter explaining that he had foundsome such situations which hadcompelled him to make a choice,he adds: I durst not set downmuch of my own.

    (b) It is formal to a high de-gree. This is the most strikingand universal characteristic ofprimitive law.

    (c) It had but feebly devel-oped sanction or executivepower. The idea of sanction is

    wider than that of punishment.Punishment is an early and crudeform of sanction, proceedingfrom a deep-seated human be-havior tendency to hurt someone when something goeswrong. Gradually men learnedbetter methods for civil wrongs:substituted redress, a moneyequivalent to get for a party whathe ought to have or to repair thewrong, and specific redress,making the wrongdoer do whathe ought to do or undo what hedid wrongfully. Anglo-Saxon lawhad no effective apparatus forsuch things. It had no way ofcompelling a wrongdoer to comebefore a tribunal. The injuredparty had to bring pressure uponhim by seizing his cattle or otherproperty, and holding it till he did

    justice or came into court. Theinjured party had to get leave todo this, and the law sought to

    prevent the wrongdoer from in-terfering with his doing it.But there was no official coerc-ing him to come in. So with the

    judgment of the tribunal. No of-ficials executed it. The party hadto enforce it himself, and the

    judgment was his warrant forself-help. All that the law did wasto try to prevent the judgmentdefendant from hindering him.There are remnants of this in ourlaw to this day. In executing a

    judgment the sheriff is the agentof the judgment plaintiff. Thelatter must employ the sheriff toenforce the judgment. But thesheriff does it as his agent.

    (d) It is limited in scope,dealing mostly with violentwrongs to person and property.The Anglo-Saxon laws are madeup of four types of provisions: (a)

    detailed regulations as to self-help; (b) exact provisions for thespecial cases in which one mayappeal for justice to the assem-bly of free men or to the king; (c)a tariff of compositions which theinjured party must take for thewrongs specified and which he

    can compel the wrongdoer topaygoing into the most minutedetail; and (d) often another tar-iff of penalties which the kingmay exact in order to buy off thekings vengeance for the affrontto his dignity involved in certainwrongs. There is a remnant ofthis today in the fine imposed ina prosecution for a misde-meanor. The old books call itransom. It was a compromisewith a king; a buying off of thekings vengeance. So the fine ishistorically a compromise withthe state, a buying off of thestates vengeance, a makingpeace with the government for amisdemeanor by paying a sumof money.

    (e) The measure of what aninjured party may recover is notthe extent of the injury done him,but the extent of the desire for

    vengeance awakened by the in-jury. The idea is not reparationbut composition. Hence the Lawsof Ethelbert (about 600 A.D.) pro-vide for 50 per cent more com-position where a bruise, even ifmuch less severe, is not coveredby the clothes than where one,even much more severe, is cov-ered and so not visible to giverise to embarrassing questionsderogatory to the victims dig-nity.

    (f) Largely the kindred is theunit rather than the individualman as in modern times. Thusthe Laws of Ethelred (about 1000A.D.) provide that if murder iscommitted in a walled town theburghers are to go and get themurderers or their nearest kins-men, head for head.

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    (4) ANGLO-SAXON TRIBU-NALS. In the Anglo-Saxon politythe tribunals combined all thepowers of government with littledifferentiation. There were nolawyers and no judges in anymodern sense. The courts wereopen air assemblies of freemen.

    There were no records. The pro-ceedings were preserved in thememory of the freemen, whowere bound to attend. But a suc-cessful litigant might get leaveof the tribunal to record the pro-ceedings- i.e., a story of themand the judgment in a churchbook, that is, in the chronicle ofsome monastery. The tribunalswere: (1) The hundred moot(gemot)- an assembly of the free-men of the hundred, heldmonthly; (2) the county courtan assembly of the freemen ofthe county, held twice yearly andpresided over by the earl and thebishop. In addition, the kinggranted franchises to landlordsto hold private courts or hallmoots and exercise jurisdictionover their tenants in competitionwith the hundred moots. Butsmall landlords also held pettycourts on their estates. it is not

    known how this jurisdiction grewup. However, the Middle Agesconfused dominium with impe-rium, ownership with jurisdic-tion.

    3. Developmentof the Common Law

    (1) THE KINGS PEACE. Agreat change came with theNorman Conquest, which madepossible the development of anEnglish law in the kings courts,

    whereas in the rest of Europe theGermanic law was not able todevelop to the exigencies of so-cial and economic progress, andso the modern Roman law, as de-veloped in the universities fromthe twelfth century, was receivedand supplanted it. The kings be-fore the Conquest had only beenable to maintain a relativelyfeeble government. The Anglo-

    Saxon laws are full of exhorta-tions to the people, as goodChristians, to keep the peacebetter than they were wont. Theyare full of complaints that thepeace is not kept and that mas-terful and stiff-necked kindredare wont to stand up in defense

    of a thief- i.e., to fight for himwhen it is sought to proceedagainst him. Only occasionallydocs the king cease to exhort,and instead make a threat ofpersonal intervention to dealwith the thief or put down disor-der.

    For nearly twenty years be-fore the Conquest, William, Dukeof Normandy, had been at workimposing a measure of disciplineupon the barons who held ofhim, developing a good centralfinancial organization, and work-ing out an efficient governmentfor his duchy. As king of England,he had the experience and thestrength of character and the willto perform the greater task oforganizing a strong central gov-ernment in his realm. He system-atized administration andbrought in orderly governmentand a vigorous insistence on the

    rights of the crown. Through thegreat survey known asDomesday Book, he establishedthe crown as the ultimate land-lord. All land was held mediatelyor immediately of the crown.Thus he made England themost perfectly organized feudalstate in Europe. The land lawcould develop on a sure foun-dation and grow into a greatbody of common law. Yet he con-tinued the old English laws and

    customs except as to the rightsof the crown, and simply pro-vided efficient administration.Under the strong central govern-ment of the Norman kings, theroyal administration of justicegrew strong. Out of this grewthe kings courts of justice, andin them developed the commonlaw.

    1. Extension of the Kings Ju-risdiction. A chief agency by whichthe kings tribunals got the juris-diction which had been exercisedby the county and hundred courtsand prevailed over the localcourts of landlords (aside frombetter judges and better modes

    of trial) was extension of thekings peace. This extension hadgone a long way already in Anglo-Saxon times. There were threeways in which the developingpolitical organization of societyextended its authority. One wasby restricting the sphere of self-redress, as has been seen. An-other was by differentiatingclasses of wrongs. In some casesit was required that compositionbe accepted. In some cases thesanction of outlawry was added.The wrongdoer was proclaimed tobe outside the protection of thelaw. In other cases, the law tookthe whole matter in hand. A thirdwas by the truce or peaceexemp-tion of certain places or times orpersons from the feud so that nei-ther the individual nor his kindredmight do any violence there, then,or to them, without affront to theauthority whose peace was in-

    fringed.

    II. Truce or Peace in Anglo-Saxon Law. A bare outline of thetruce or peace in Anglo-Saxonlaw must suffice:

    (1) One form is the churchpeace. There was to be no vio-lence and no prosecution of afeud in the church or in its pre-cinct.

    (2) Another is the house

    peace. Every one was to be se-cure against force and violenceand against prosecution of a feudin his house; he and his house-hold. This sanctity of the dwell-ing has continued in the commonlaw. The saying is that anEnglishmans house is his castle.The common law will not allowbreaking in even by officers ofthe law to serve writs in civil

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    cases, and only after warning incase of felony or misdemeanoramounting to breach of thepeace in criminal cases, and itsafeguards against search of thehouse by officers of the law byrequiring warrants issued bymagistrates upon showing of

    probable cause under oath. Thisprotection goes far beyond whatis accorded outside the common-law world.

    (3) Another is the peace ofpublic places and assemblies,what the writers on the Germaniclaw used to call conveniently thefolk peace (but the term is not inthe sources) because this groupof peaces was under the protec-tion of the assembly of freemen.There are many forms.

    (a) One form was the peaceof the gemot. Every one was tobe free from molestation goingto, coming from, and while at thegemot.

    (b) Another was the gather-ing of the army. When the kingcalled the people to turn out inarms for defense of the realm, all

    feuds were suspended.

    (c) Another was the peace ofthe market. The market was heldin a stated place at stated timesand every one was to be free togo to and come from it withoutmolestation.

    (d) Still another was thepeace of the forest, where menwere free to hunt and to gatherwood. The feud was not to be

    prosecuted there, nor were vio-lent wrongs to be done there.

    (e) Another form was thepeace of the great festivals. Verylikely in pagan times there was apeace of such festivals. Every onewas to be free to perform his dutyto the gods on these occasions.In Christian times this became apeace of the great festivals of the

    church. There was to be no vio-lence at Christmas, Easter, orWhitsunday.

    (f) Also there was the peaceof the walled town where the folktook refuge in case of armed in-vasion. At such times every onethere was to be free from moles-

    tation.

    (4) Historically, the mostimportant was the kings peace.This took many forms. (a) In itsoldest and simplest form thiswas the peace of the kings per-son and his presence. No vio-lence was to be offered to himand none was to be done in hispresence. (b) Also it extended tohis house, (c) to the time of hiscoronation, and (d) to his ser-vants, or as we should say, hisministers. Violence to them wasan affront to the king. This wasextended to persons speciallytaken under his protection. Theking publicly took a person bythe hand and declared the per-son to be under his protection.In the same way, a whole classof persons might be taken un-der the kings protection. Forexample, during the Danish rule

    all Danes were put under thepeace of the king. If any onekilled or wronged a Dane it wasan affront to the king. (e) Also itwas extended to the roads. Therewere four great roads which hadcome down from Roman timesand along with the rivers werethe avenues of trade and of mov-ing the army for defense of therealm. The king took these oldRoman roads under his specialprotection. The feud was not to

    be prosecuted on them, and theywere to be free from violence.From these the kings peace wasgradually extended to roadsfrom the kings city or borough,from the walled town where hissubjects took refuge, to all mili-tary roads, the roads by whichthe king moved his army, and atlength to all highways. Any vio-lence on any highway was an af-

    front to the king. There is a re-minder of this in the phrasekings highway, which has re-mained in use. (f) Also the kingspeace was extended over thechief waterways.

    III. Absorption of Other

    Forms of the Kings Peace. Fi-nally, as it is said, the otherpeaces were absorbed in thekings peace, i.e., he took themover, so that his peace was overthe whole kingdom, and every-one but the outlaw was said tobe in the kings peace. There isa reminder of this today in theconclusion of an indictment: inEngland, against the peace ofour sovereign Lord the King, hiscrown and dignity; in the UnitedStates, against the peace anddignity of the State of , or what-ever style of describing the statethe local constitution prescribes.There is a remnant also in thecommon law as to jurisdictionover crimes. Only that state has

    jurisdiction whose peace hasbeen broken by the criminal acttaking effect within its domain.It has taken legislation in recenttimes to bring in ideas of per-

    sonal jurisdiction of the stateover its citizens wherever theyact, and jurisdiction in the courtsof an injured state no matterwhere the act working the injurywas done.

    Whenever there had been abreach of the kings peace, it wasfor the king to vindicate his dig-nity and so later his courts had

    jurisdiction. This came to meanthat they had jurisdiction over allviolent wrongs, and this meant

    all cases where the cause of ac-tion could plausibly be put assuch a wrong. Thus, until theforms of action were abolished,the plaintiff in ejectment set upan eviction with swords, knives,and staves, and in trespassaverred that the invasion of hisperson or property had takenplace with force and arms.

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    (2) THE KINGS WRIT. As wego back in legal history, there iscontinually less differentiation offunction. It has been said of theRoman king of the period beforethe republic that he combinedthe functions of priest, captainof the host, enforcing discipline

    in time of war and order in timeof peace, president of the assem-bly of the citizens, arbitrator ofdisputes between the citizens,and leader in the common exer-tions to put out fires. It was muchthe same with the Anglo-Saxonking and his successor, theAnglo-Norman king. Executiveand judicial functions were notdistinguished and creative legis-lation was not understood andwas largely in the future. Indeed,although the genius of Aristotleperceived as a matter of logic thethreefold distribution of powerswith which we are familiar today,it was not till relatively moderntimes that the differentiationbecame at all thoroughgoing.

    When the king was appliedto for justice, or when he soughtto vindicate his authority, orwhen he required some action tobe taken, he sent his writ, i.e.,

    formal letter, to the sheriff, or tosome other suitable person, di-recting what was to be done. Thekings writ was used for all pur-poses connected with the busi-ness of government. There wasno distinction between the writsin what we should now call judi-cial proceedings and those usedin purely administrative affairs.

    There is little difference be-tween the Anglo-Saxon writs andthe Anglo-Norman writs. The lat-

    ter were often the former put intoLatin. But the Norman kingsmade much more use of them.There was a gradual differentia-tion of the judicial writ, but as aresult of its origin as an execu-tive order, it took the form at firstof a command to the person ad-dressed to give up somethingtaken from the complainingparty, or to pay the sum claimed

    as owed. What made the causecognizable in the kings courtwas the affront to the king in notdoing justice, and so defying thekings command. Only if the com-mand was not obeyed was thereto be anything in the nature of alegal proceeding. As applications

    to the king became more fre-quent, a regular set of writs for

    judicial proceedings grew up,which were no longer, except inform, executive orders. Theywere no longer thought of ascommands to be obeyed; butrather as the appointed modesof bringing an action in thekings court. The court came tobe thought of as having jurisdic-tion of the case itself, not simplyof the affront to the king in notregarding his order. WhenGlanvill wrote his treatise On theLaws and Customs of the Realmof England (between 1187 and1189) he was able to systematizehis account of the law by orga-nizing it about the writs. He usedwrits as the basis of his exposi-tion as a writer of today woulduse the decisions of the courts.The writs became fixed in form,and there came to be a fixed set

    of them, determining the causeswhich the courts could deal with,and the scope and course of re-lief.

    Already in Glanvill we can seea distinction growing up betweenthe original writ, which is thefoundation of the litigation, themesne process (to get the partycomplained of into court), andthe writs to govern the procedurepending the cause, and the finalwrit of execution after judgment.

    In proceedings in the countycourt (which went on after theConquest, but in time found itsbusiness more and more takenaway by the kings courts till ithad only a petty jurisdiction left),and in the courts of the locallandlords, the action was begunby a complaint tendered to thetribunal wherein the complainingparty set forth his cause of ac-

    tion. In the kings courts, on theother hand, because of the wayin which their jurisdiction arose,only the original writ could sus-tain a legal proceeding, not, asBlack-stone tells us, because the

    judges were only the substitutesof the king, and as such could

    only take cognizance of what wasexpressly referred to them, butbecause affront to the king in notregarding his order was the verybasis of the kings jurisdiction.

    One obtained a writ by apply-ing to the kings chancellor, whowas the kings secretary. Laterwrits were had by applying to theclerks in chancery. Issuing thesewrits was a source of royal rev-enue. Magna Carta made themdemandable as of right on pay-ment of the customary fees,since the king promised that hewould not sell or deny to any onenor would he delay justice andright.

    By the seventeenth centuryan elaborate system of writs hadgrown up, corresponding to theactions and proceedings whichcould be brought in the common-law courts. The requirement ofan original writ came to America

    with the common law and ob-tained in more than one statedown to the present century. Buta simpler system of beginning bya summons to appear and an-swer the statement of the com-plaining partys case has sub-stantially, if not quite universally,succeeded to it.

    (3) STATE LAW ANDCHURCH LAW. In establishingthe jurisdiction of the kings

    court, out of which the kingscourts at Westminster arose, itwas necessary to contend notonly with the older tribunalswhich had come down from be-fore the Conquest, but also withanother type of tribunal whichwas growing strong while thekings court and its jurisdictionwere formative. The Christianswere taught not to go to law with

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    each other. In the beginning,they avoided the courts of thestate and had recourse to thebishop or overseer of the localflock. Their societies or con-gregations gradually developedwhat was to become a system oflaw depending for its enforce-

    ment on excommunication. Intime, in the West, the Bishop ofRome obtained pre-eminenceover a thoroughly organized uni-versal church. About 500 A.D., abook collecting the canons (orrules of church law promulgatedby the councils of the church)included also letters of the Popesfrom the year 398, after the man-ner of the letters of the Romanemperors in their capacity of ul-timate judges, which at leasthelped establish a doctrine thatthe Popes had power to declarethe law for the tribunals of thechurch throughout Christendom.There was another such collec-tion in the seventh century. In theninth century there was a collec-tion which we now know as thefalse decretals, in which, build-ing on the seventh-century col-lection, there were added somesixty decretals purporting to

    come from the very earliest of thePopes and thus seeming to showthat they had been legislatingfrom the beginning. It lookedlike, and was accepted as, a com-pilation of an old establishedbody of universal law postulat-ing the primacy of ecclesiasticalpower, and the supremacy of theBishop of Rome. The time wasripe for this. There was no organof legislation for politically orga-nized society. Local feudal juris-

    dictions were administering alocal customary law. The churchwas all that made for universal-ity, and so for the uniformity andpredictability demanded by astable economic order. In thetenth century, there began to bemanuals of church law, and in thetwelfth century about the timewhen the study of Roman lawfrom the compilations of Justin-

    ian had been revived in the Ital-ian universities, Gratian pub-lished the Decretum which be-came the foundation of the Bodyof the Canon Law (Corpus JurisCanonici). It was studied andcommented on in the universitiesand was followed by collections

    of decisions and legislation ofthe later Popes, making an elabo-rate body of law, not completetill the beginning of the four-teenth century. The academictheory of the time presupposeda universal church and a univer-sal empire, the one with jurisdic-tion over things spiritual, and theother with jurisdiction overthings temporal, and a funda-mental distribution of poweraccordingly. In the one domainthere were the decretals of thePopes, in the other there was thelegislation of the Emperor Justin-ian, compiling the constitutions(i.e., enactments) and rescripts(letters of direction to judges andadministrative officials) of theemperors before him, and givinglegislative authority to a compi-lation of extracts from the writ-ings of the classical Roman ju-rists. The two were studied and

    commented on side by side in theuniversities.Before the Conquest, the

    church was not thoroughly orga-nized in England. The Normansbrought in, along with a strongroyal administrative organiza-tion, a strong church organiza-tion. William I put an end to thebishops or the archdeacons sit-ting in the hundred court to hearcases under the church law, andalso provided for giving legal ef-

    fect to the sentence of excom-munication pronounced in theecclesiastical tribunal. Thebishop seems to have continuedto administer the canon law inthe county courts down to thetime of Henry I. But the univer-sal system of church courts be-came established in England par-allel with the growth of the kingscourt.

    Struggles between churchand state began in the reign ofHenry I (11001135) and be-came acute in the reign of HenryII (11541189). In the reign ofHenry I there was a strong cen-tral administrative machinery,but the sheriffs administered

    what was substantially Anglo-Saxon law locally according tothe old custom. There was noreal common law. Nothing coulddevelop during the anarchy ofStephens reign, but in the mean-time the separation of the eccle-siastical courts from the localcustomary courts brought aboutby William I had greatly strength-ened the church courts since thechurch now had a well system-atized body of developed law andclaimed a broad jurisdiction. Twochief difficulties were involved.Often the same persons wereamenable to each jurisdiction,and many subjects were withinthe scope of each. Where a per-son amenable to each had beentried by one, it was obviously in-tolerable that he should be triedagain for the same thing beforethe other. The church very prop-erly insisted there should be but

    one trial and, perhaps naturally,insisted that the one trial shouldbe had in the church courts. Theconcurrent jurisdiction over thesame subjects could only giverise to clashes. Henry II, a strongruler, insisted upon the su-premacy of the lay law in suchcases, at least in matters of con-duct and lay relations, and in theConstitutions of Clarendon(1164) declared the claims of theking as against the church in

    what was put as the basis of acompromise. Except as to thepunishment of convicted clergy-men, the compromise prevailedand questions of property, ofdebt, and of crime were set offdefinitely for the courts of thestate rather than for those of thechurch, leaving to the churchcourts ultimately for the chiefsubjects of their jurisdiction,

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    aside from the internal conductof the church, matrimonialcauses, testamentary causes,and administration of estates.But the probated will could notdetermine the title to real prop-erty (indeed, disposition of landby will was not allowed until a

    statute of Henry VIII) and admin-istration of estates had to do withpersonal property only. A resultof this bit of history is to be seenin the separate probate courtswhich are common in the UnitedStates. In England, the civil juris-diction of the ecclesiasticalcourts continued down to 1857when it was taken away fromthem by Act of Parliament andconferred on two royal courts,the Court of Probate and theCourt for Matrimonial and Di-vorce Causes. In 1873, thesecourts were merged in the HighCourt of Justice established bythe Judicature Act, and they arenow represented by the Probate,Divorce and Admiralty Division ofthat court.

    As a result of this limitationof ecclesiastical jurisdiction andof the strong royal administra-tion of justice set up by Henry II,

    development of a body of lawadequate to the needs of thekingdom became possible, andwith the rise of a system of courtsin the next century the historyof the common law as such defi-nitely begins.

    (4) THE KINGS COURTS.Originally, court means thecourtyard of a house. It was inthis courtyard that the head ofthe house met and advised his

    dependents and transacted thebusiness of the household. Thecourtyard of the kings housewas the place where he receivedcomplaints, where those whohad need of royal assistance ap-pealed to him, and where a greatvariety of his daily business wasdone. Hence the kings courtmeant at first the place where theking lived, attended by his chief

    officials and his household. Itcame to mean the center of ad-ministration where the govern-ment was carried on in all itsbranches, whether the king wasactually there or not. From this anumber of derivative meaningsarose. The whole body of officials

    and great personages in atten-dance on the king came to becalled the court. The MiddleAges spoke of the High Courtof Parliament and in Massachu-setts today the legislature iscalled the General Court. Again,diplomatic representatives aresaid to be received at the Courtof St. Jamess (of St. Jamess Pal-ace), and persons entering intosociety are said to be presentedat court, court meaning theplace where the king meets hiscouncilors, or the legislators, orthe ambassadors, or conductssocial functions. As a chief partof the kings work came to be

    judicial, and came to be done inhis name by justices appointedfor that purpose, the term cameto mean a place where justice isadministered judicially andthence to mean the body of

    judges who administer justice in

    such a place. This became themost important meaning.Finance is the basic activity

    of governmental administration.Naturally, the financial adminis-tration first developed. The firstrecords are fiscal, and the firstlaw book, the Dialogue on the Ex-chequer, is somewhat older thanGlanvills Treatise on the Lawsand Customs of the Realm ofEngland (De legibus etconsuetudinibus regni Angliae),

    and shows a more developed or-ganization. Judicial records fol-lowed and got their idea from fis-cal records, and the common-lawcourts, as they came to be in thethirteenth century, developed inpart from the judicial side of thekings court where all his busi-ness was done, and in part fromthe financial side of that court.

    One feature of administra-

    tion was the chancery, a greatsecretarial bureau headed bythe chancellor, who was thekings secretary of state for alldepartments. But it is not tilllong afterwards that chancerybecomes a court. On its legalside, it is the bureau from which

    litigants obtain the writs bywhich causes