The reign of Edward I was the second great period of change, with the most dramatic alterations in the law since the beginnings of the common law about a century earlier. Government around 1300 was highly reflective about the law, statutory change of the law was an expected part of what the king would do. The justices themselves also extended the common law dramatically into the realms of ordinary wrongs and commercial matters, further subordinating local courts. The law became sufficiently bureaucratic that people could manipulate it for their own purposes. The legal system was thus capable of constantly recreating the assumptions of predictability, stability and the manipulability of wealth upon which a commercialized, complex civilization depended.
The common law was already national in 1275, but by 1305 it had extended both the scope of its concerns and the scale of activity. In Trinity term 1275 more cases came from Northumberland, Cumberland, Westmorland and Cornwall each than from the counties of Huntingdonshire or Berkshire. Yorkshire, Lincolnshire and Norfolk were far more litigious at common law than were Kent, Essex, Middlesex, Hertfordshire or Surrey: proximity to Westminster did not dictate involvement with the law. The common law operated on all areas of the country; only in the fifteenth century did the southeastern counties begin to dominate the attention of the court of common pleas, and even then not dramatically (see table 13.1). The number of enrolments in the plea rolls tripled from 1275 to 1305. Enrolments related to real property and feudal incidents increased by 44 per cent; those related to wrongs done, by 71 per cent; those related broadly to debt and other obligations, by 1,800 per cent (thus increasing from 5 per cent to almost a third of the enrolments) (see figure 13.1).
The explosion in court involvement with commercial matters came partly from governmentally planned initiatives, partly from court efforts to resolve problems of bias in local courts. Edward I made available a new process for merchants that allowed land to be used as security for loans with expeditious procedure for repayment: the statute merchant.10 Problematic statutes merchant, as when substantial time elapsed before the repayment process was requested, found their way into the court of common pleas.11 Most of the increase in litigation, however, came from the attempt early in the reign to resolve problems of official bias in local courts. In 1274-5 Edward I remedied such problems by allowing litigants in lower courts to remove cases into the court of common pleas before bias resulted in a false judgement. By 1300 the court had backed itself into a situation in which plaintiffs in debt and related
I I T1200
¦ T1275 I I T1305
¦ T1386
¦ T1465
8,000
7.000
6.000
5.000
4.000
3.000
2.000 1,000
0
Total entries Real property
Figure 13.1 Distribution of litigation: court of common pleas.
Misc./unknown
Trespass
I
Debt, etc.
Actions would have been foolish to sue for significant sums in any local court except protected cities and boroughs. Such litigation thus focused in the king’s court, and county and hundred courts became suitable only for suits claiming less than ?2. Even in everyday affairs, Westminster had become central to local mentality and daily life and had diminished the importance of local institutions.12
Land was still the primary source of wealth in England around 1300, and Edward I intervened decisively in land usage. The statute Quia Emptores in 1290 prohibited subinfeudation, and thus the formation of personal dependencies by grants of land in exchange for obligations of loyalty and continuing service.13 Such ties thereafter had to be established by patronage or money fees, likewise enforceable by common law:14 the statute completed the work that the courts had effectively initiated in the 1190s by eliminating seigniorial disciplinary jurisdiction. The statute De Donis in 1285 sought to enforce the donor’s intention on traditional grants meant to endow a person and his blood descendants. By the early fourteenth century that intervention had produced the fee tail. Entails enabled a blood aristocracy by making a family endowment that could only be dissipated by the current tenant with difficulty. The family line could well continue wealthy and thus powerful for as long as it continued to generate heirs.15 The development of a House of Lords was preceded by legal devices that allowed the formation of a relatively stable blood aristocracy. The rules surrounding real property were well known, but also complicated. People parcelled out combinations of life estates, fees tail, remainders and reversions to exercise familial power and patronage. They arranged their affairs to coincide with the rules and to take advantage of the writ structures, but often also fell short of meeting the legal requirements. Law had grown more useful, but also less in accord with the way in which ordinary people instinctively thought. The successful adapted to take advantage of the new possibilities to exercise power in this life and likewise to determine the use of their wealth after death.
Women’s rights in property, established along with the origins of property around 1200, continued to be a primary focus of court activity. In a quarter of a year, Trinity term 1275, the court of common pleas handled 351 women claiming their dower rights, 319 of them still as unmarried widows. They constituted a sixth of the total number of plaintiffs in that court, and they sued a total of 1,081 tenants, more than a fifth of all defendants. In Trinity term 1305, 474 women were claiming dower rights against 1,363 tenants: substantially more dower claims, but, because of the increase in the court’s jurisdiction, a smaller portion of all litigation. The presence of women in litigation still expanded numerically, but was declining in comparison to that of males. In 1275, moreover, women had constituted nearly a quarter of all plaintiffs, but not even a tenth of the defendants. The latter figure is a more likely indicator of their economic power; the former figure indicates that they had to pursue their rights at law more frequently than males precisely because of the social complications of dower.16
By 1300 fully professional lawyers served the common law and its users. Lordship was at the heart of this development of a legal profession. Magnates had representatives (seneschals or bailiffs) to protect their own interests and their men in the various county and local courts. Speaking on behalf of a man was a duty of lordship and a function of patronage; speaking precisely as the client was a convenience function when it was difficult for the client himself to be present. Speaking on behalf of the litigant became the duty of the serjeant or, later, the barrister. Speaking as the client and binding him was the function of the attorney or, later, the solicitor. Professional lawyers, exercising diverse functions but possessed of arcane knowledge and valuable skills, emerged in the course of the thirteenth century working in manor, hundred, county and king’s court as necessity led them. By 1300 a much smaller group of professional lawyers had become professional serjeants and professional attorneys, but that larger group of professionals exercising diverse functions survived. Statutory regulation had supplemented traditional loyalty expectations, and even a rudimentary instructional regime had developed that would soon turn into the inns of court.17
English law had become bureaucratic and rule-bound. The use of standard writs to establish king’s court jurisdiction in each case, specialist justices and professional lawyers, and statutory action combined to make the law so predictable (although not immune from influence or bribery) that it could be usefully manipulated. The advantages to a creditor of a bond for a debt, for instance, were so great that people would bind themselves to an agreement by submitting such bonds to a trusted third party, to hold in escrow. If one side defaulted, the other party received both bonds and could enforce a debt that was designed to exceed the value of performance of the agreement.18 In that way, legal rules operated to structure conduct outside the court, with less frequent resort to actual suits. This court-sponsored manipulation of the writs and rules to serve social needs helped construct social relationships more serviceable to society and individuals. At the same time, such beneficial uses of the law made individuals more dependent on the state and its institutions. Statutes, judicial changes in the law and the development of professional serjeants and attorneys established a mature legal system that in fact focused the attention of England on the workings of Westminster.
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