It is the glory of English Law, that its roots are sunk deep into the soil of national history; that it is the slow product of the age long growth of the national life.

Edward Jenks

Categorized in : Long Law Roots

The popularity of the famous device of the use of lands into England is said to be largely due to the mendicant friars of the then new Orders of St. Dominic and St. Francis, who, arriving in this country, in the first half of the thirteenth century, found themselves hampered by their own vows of poverty, no less than by the growing feeling against Mortmain in acquiring the provision of land absolutely necessary for their rapidly developing work.

land order country

The process of specialization tends, almost inevitably, to narrow the sources from which the rules of any science are drawn; and English law is no exception from this rule.

source process law

But then a daring evasion by a leading conveyancer, known as the Lease and Release, received judicial sanction; and commenced a successful career of more than 200 years. The Lease and Release, attributed to Serjeant Moore, was based on the fact that the Statute of Inrolments did not apply to terms of years.

careers successful years

First in point of time and interest comes the mortgage debt, i.e. the claim for the return of money lent on the security of some tangible object. Such claims are among the earliest fruits of a commercial civilization, and are nearly always affected the same way, viz. by the deposit or pledge of the security with the creditor, to be redeemed or returned on the payment of the debt.

debt tangible civilization

We regard an action of Contract as an action to prevent or compensate for a breach of a promise; an action of Tort as an action to to punish or compensate for a wrong, such as assault or defamation, which has not any necessary connection with a promise.

connections action promise

The 'Little' or 'Barebones' Parliament, summoned by Oliver Cromwell to meet at Westminster on 4th July, 1653, after the dissolution of the remains of the Long Parliament, may have been an unpractical body, so far as the task of administration in troublous times was concerned. But it seems quite possible that the wealth of contumely and scorn which has been poured upon it was, originally, due quite as much to the fierce anger of vested interests against outspoken criticism, as to any real vagueness or want of practical wisdom in the plans of the House itself.

4th-of-july real long

It was natural that the direct wielders of the royal prerogative, men who sat in the Star Chamber and the Privy Council, who knew the secrets of the State and the necessity for prompt action, should despise the merely declaratory character of a good deal of Common Law process. To them we doubtless owe those four great pillars of Chancery jurisdiction, the injunction, the decree, the sequestration, and the commission of rebellion.

stars character men

Is it surprising that modern English land law should resemble a c... by Edward Jenks

Is it surprising that modern English land law should resemble a chaos rather than a system?

chaos land law

It may be that the requirement of a preliminary approval by the Grand Jury, of all accusations of a serious nature, justified the boast that a man was presumed to be innocent until he was 'found' guilty; but that presumption certainly ceased to have practical application, so soon as the Grand Jury had returned a 'true bill'.

bills may men

Perhaps the best testimony to the effectiveness of the reforms of 1852 is the fact, that men of a slightly later generation, familiar with the working of the courts half a century after, find it difficult to believe that such abuses as are plainly described by the legislation of that year, should really have existed in the middle of the nineteenth century.

men believe years

But we remember that it was just precisely in the reign of Richard II that the Peasants' War, following upon the changes wrought by the visitations of the Great Plague, virtually destroyed serfdom as a personal status.

reign remember war

It was not long before English Law took the one step needed to produce the modern scheme of legal remedies. And when it did, it used the Writ of Trespass as the starting point.

law steps long

It is true, that a Law of Contract based on causae will always be an arbitrary and inelastic law; but it is a kind of law with which some great nations are satisfied at the present day.

arbitrary kind law

Only when a disputed point has long caused bloodshed and disturbance, or when a successful invader (military or theological) insists on a change, is it necessary to draw up a code.

military successful long

The thegn who deems an unjust doom is to lose his thegnship. It is a principle which can be widely applied

doom unjust principles

The man who has been wounded by a chance arrow must not shoot at sight the first man he happens to meet.

arrows sight men

But the fact that the word "chattel" has survived as the inclusive legal term for all movable goods, points, not merely to the great importance of cattle in primitive times, but to the importance of the notion of sale or barter in generating the institution of property.

institutions importance facts

Whatever else the Norman Conquest may or may not have done, it made the old haphazard state of legal affairs forever impossible.

done forever may

Legal business has, from the beginning of time, been profitable - to those who have conducted it; because it is concerned with things that touch men's passions very deeply, and because men are willing to pay, and pay highly, for wisdom and skill in the conduct of it. The real merits of the Norman lawyers were, not altruism, but ability, energy, and enthusiasm for their work.

passion real men

The invention of writs was really the making of the English Common Law; and the credit of this momentous achievement, which took place chiefly between 1150 and 1250, must be shared between the officials of the royal Chancery, who framed new forms, and the royal judges, who either allowed them or quashed them.

achievement judging law