Page images
PDF
EPUB

he would at all times during the said term keep the outside of the demised premises in good and substantial repair'? No! said Warrington J., a lessee would not-it would be unreasonablethen neither should a lessor. There is no difference in principle. 'If the lessee is not bound to give back to the lessor at the end of the term a different thing from that which was demised to him, neither in my judgment is the lessor bound, by a similar covenant, to give to the lessee during the term a different thing from that which the lessee took from him at the beginning of his tenancy.' But is this view of the analogy quite sound? The covenant is construed in favour of a lessee because of the hardship which rebuilding would entail on him if nine-tenths of his expenditure went, as it would do, to benefit his lessor. In the case of a covenant by a lessor, it is all the other way, nine-tenths of the expenditure goes to benefit the lessor himself.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

THE YEAR BOOKS.

II.

THE

HE objection has often been urged, and justly urged, against a system of case law, that the true bearings of the decision cannot be understood without some knowledge of the system of procedure and pleading which prevailed when the case was decided. This objection applies with the greater force as we go further back in our legal history; and therefore it applies most forcibly to the Year Books. It would not perhaps be too much to say that to lawyers who know only our modern reports the Year Books are hardly intelligible. The reports therein contained appear in many cases to be merely reports of desultory conversations between judge and counsel, which often terminate without reaching a distinct issue ' either of fact or law. Even when a distinct issue of fact or law is reached they often tell us nothing of the final result. Much of their inconclusive character is due, no doubt, to their informal shape. Notes taken by apprentices during the hearing of the facts of cases at which they happened to be present will naturally possess such characteristics; and when these notes are copied, and perhaps freely edited, such characteristics will be emphasized. But it is our want of knowledge of the legal environment in which they were produced which is the chief cause of their obscurity. There are vast differences between the mediaeval and the modern conception of a trial and all the ideas involved in the notion of a trial. Differences upon matters so fundamental will explain why familiar rules of law appear in the Year Books in unfamiliar guise. They appear there bound up with the intricate manoeuvres made possible to a learned profession by an intricate procedure. We who live in a state of society far remote from that of the thirteenth century miss much of the reason which such intricacies may have had to the society in which they grew up; and reports intelligible to men living in that society and practising that system are not intelligible to us. The earlier Year Books, too, are, as we have seen, often only the notebooks of the apprentice, and, as every student knows, nobody else's notes can be as valuable as they are to the maker. At the same time it is only by the help of these notes, which grow fuller as time goes on, that we can accustom ourselves to the atmosphere of the mediaeval law-court, and to the mind of the mediaeval lawyer. Unless we can do this we shall never attain to any

real knowledge of the spirit of the mediaeval common law; and a knowledge of the mediaeval common law is essential if we are to attempt a critical estimate of the work of the lawyers of the sixteenth and seventeenth centuries, who adapted its rules to the new needs and ideas of the modern state. Let us see, then, how far a consideration of certain differences between the mediaeval and the modern in such vital matters as the rules of process and the rules of pleading will place us at the right point of view from which to look at the Year Books.

1. We must remember that when the Year Books begin the law is only just emerging from that primitive stage in which the securing of the appearance of the defendant is a difficult problem; and that it is still in that stage in which the difficulties of travel make process slow1. Rules based upon primitive legal ideas, and upon physical necessities of an older age, became the permanent basis of an elaborate superstructure of technical rules. The rules of law upon this subject had become fixed before they had had time to become rational. It followed that with every increase in the complexity of the law these fixed rules became less rational and a greater hindrance to justice. Every action possessed its special machinery and its special formulae for working that machinery 2. A lawyer who wished to do his duty by his client must be at home with all the capacities of that machinery, in order that he might know at each stage of the case what chances were open 3. Many a good case might be lost, or a bad case won, or, at least a decision upon it delayed, if the right step was taken at the right time, or if prompt advantage were taken of an unskilful moye or a verbal error. It would be both tedious and useless to go into details about the process used to get a defendant before the court, and the various forms of process which might issue in the course of a case, or after it had been decided. In a real action the process to get the defendant before the court consisted, when reduced to its lowest terms,' of summons, seizure of the land into the king's hand, and finally judgment, that the land be handed over to the demandant. Even then it was open to the tenant to reopen the whole dispute by means of a writ of right. It would be in very few cases that process could thus be reduced to its lowest terms.

1 P. & M. ii. 589, 590.

2 Articuli ad Novas Narrationes (Tottel's ed. 1561), ff. 77b, 78: 'Igitur in omni casu primo opus est videre ac intellegere casum. Casuque bene notato et intellecto, tunc impetrare breve iuxta casum, et deinde super breve bene narrare secundum naturam actionis in forma superius recitata. Quia ubi non habetur bonum et certum breve, quod est omnium actionum fundamentum et originale, impossibile est manutenere bonum placitum, neque facere narrationem congruam, iuxta naturam brevis super quo narraturus est.' P. & M. ii. 590, 591.

3 Below, p. 371, n. 6.

The validity of the summons might be questioned 1. Both the tenant and the demandant might cast many essoins-how many depended upon the kind of action brought. If there were several tenants they might at one time have delayed the proceedings almost indefinitely by essoining themselves alternately 2. In many cases the hearing of the case might be hung up by claiming a view of the premises; and we find much litigation upon the right to have a view. Then there might be vouching to warranty or aid prayer, and the person vouched or prayed in aid might wish to essoin himself. Protections must be reckoned with which would put the case without a day 5. Infants might intervene and claim their age; and this would mean that the proceedings would be stayed till the infant had attained his majority". All these various processes involved many writs and orders to the sheriff; and if the sheriff had taken the wrong steps to carry out the process, or if he had made any verbal fault in his returns, there was fresh material for disputes which delayed the hearing of the case 7. Booth tells us that the proceeding by the Grand Assize is very dilatory, and may become 'vexatious to the Tenant by the Practice of the Demandant by not prosecuting and suing out Process as he ought, and many other Delays for want of Knights, there not appearing, or the like.' Process in the case of personal actions was almost if not quite as lengthy; but there were not all the opportunities for delay in the course of the case which were afforded by some of the real actions. The number of essoins allowed were not so numerous 9. There could be no vouching to warranty. But in the older personal actions the process was lengthy and ineffectual enough. There might be protections; and it was always possible to question the acts of the sheriff. One of the reasons for the spread of trespass was that, being a penal action, the process was comparatively speedy and effective. It was possible to arrest the defendant, and in the last resort to outlaw him. The plaintiff was not left, as in

a

1 e. g. Y. B. 1, 2 Ed. II (S. S.), 19.

2 3 Ed. I, c. 43; 6 Ed. I, st. 1, c. 10; Reeves, H. E. L. ii. 36, 37.

e. g. Y. B. 2, 3 Ed. II (S. S.), 141; early Roman civil procedure seems to have recognized something like the view, Greenidge, Civil Procedure in Cicero's Time, 56.

551

5

Reeves, H. E. L. ii. 632.

e. g. Y. B. 12, 13 Ed. ÌII (R. S.) 316—a case which shows that this was so even when there were several defendants, and the protection was cast for one only; Reeves, H. E. L. ii. 615.

For a hard case of this kind, see Y. B. 1, 2 Ed. II (S. S.), 150.

7 See e. g. Rot. Parl. iii. 594 (7, 8 Hy. IV, no. 112), justice was delayed because the judges were 'en divers opinions et ambiguities' owing to the fact that on the panel a juror's name was Congrove, while in the writs of Habeas Corpus and Distringas he was called Gongrove.

8 Real Actions 115, and the case there cited; cp. ibid. 157 for similar remarks as to process upon the writ of Formedon.

Reeves, H. E. L. ii. 93.

[ocr errors]
[ocr errors]

some of the older personal actions, without any other remedy than to keep distraining a contumacious defendant, who very likely had nothing by which he could be distrained1. We must not forget that the ingenious means by which the three Common Law Courts encroached upon one another's jurisdiction were merely perversions of their ordinary process which added to the technicalities of an already complicated system 2. Even in Edward I's reign it was possible for the judges themselves to make mistakes. How is it,' said Berewick to the sheriff, 'that you have attached these people without warrant; for every suit is commenced by finding pledges, and you have attached although he did not find pledges?' &c. Sir,' said the sheriff, 'it was by your own orders.' If it had not been so,' notes the reporter, 'the sheriff would have been grievously amerced, et ideo cave 3.' In Henry VI's reign Fortescue C. J. was being pressed by the absurdity of a distinction which he was laying down as to when a writ of Scire facias would, and when it would not, issue against a person who has possession of the goods of one attainted. All he could reply was, 'Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason 1.' When a judge of Fortescue's eminence is obliged to confess that he cannot explain the reason for a given procedural rule, and is reduced to infer its reasonableness from a priori views as to the inherent reasonableness of the law, we may be sure that the rule is coming to be an antique incumbrance. In fact the rules as to process were the least reasonable part of the mediaeval common law. It is upon them that we must place a large share of the blame which attaches to the common law of the fifteenth century for its failure to keep the peace, and to punish wrongdoing. Their intricacy served the purpose of the unscrupulous 5. It is not until much of this complicated process has gone out of use, with the decay of the real actions, that the common law will be able to take new life. But in the period of the Year Books the land law and the law of the real actions were the principal part of the common law. Therefore there are necessarily many cases in the Year Books taken up solely with elucidating the difficulties of process in

1 P. & M. ii. 591-3; Reeves, H. E. L. i. 452–6. 2 Holdsworth, H. E. L. i. 87-9, 105, 106.

3 Y. B. 30, 31 Ed. I (R. S.), 258.

Y. B. 36 Hy. VI, pl. 21 (pp. 25, 26): 'Sir la Ley est come j'ay dit et ad este tout dits puis la Ley fuit commence, et nous avons plusors courses et forms qui sont tenus pour Ley, et ont este tenus et uses per cause de reason, nient obstant que modo le reson ne soit prest en memory.'

5 The law servyth of nought ellys in these days,' ran Cade's proclamation in 1450, 'but for to do wrong, for nothyng is sped almost but false maters by colour of the law for mede drede and favour.'-Three Fifteenth Century Chronicles (C. S.), 96.

« PreviousContinue »