A Brief Continuation of the Progress of the Laws, from the Time of King Edward 2 inclusive, down to these Times Having in the former Chapter been somewhat large in Discoursing of the Progress of the Laws, and the incidental Additions they received in the several Reigns of King William 2, King Hen. I, King Stephen, King Hen. 2, King Richard I, King John, King Hen. 3 and King Edw. I. I shall now proceed to give a brief Account of the Progress thereof in the Time of Edw. 2 and the succeeding Reigns, down to these Times.
Edward 2 succeeding his Father, tho' he was an unfortunate Prince, and by reason of the Troubles and Unevenness of his Reign, the very Law itself had many Interruptions, yet it held its Current in a great Measure according to that Frame and State that his Father had left it in.
Besides the Records of judicial Proceedings in his Time, many whereof are still extant, there were some other Things that occur'd in his Reign which gave us some kind of Indication of the State and Condition of the Law during that Reign: As, First, The Statutes made in his Time and especially that of 17 E. 2. stiled De Prerogativa Regis, which tho' it be called a Statute, yet for the most part is but a Sum or Collection of certain of the King's Prerogatives that were known Law long before; as for Instance, The King's Wardship of Lands in Capite attracting the Wardship of Lands held of others; The King's Grant of a Manor not carrying an Advowson Appendant unless named; The King's Title to the Escheat of the Lands of the Normans, which was in Use from the first Defection of Normandy under King John;The King's Title to Wreck, Royal Fish, Treasure Trove and many others, which were ancient Prerogatives to the Crown.
Secondly, The Reports of the Years and Terms of this King's Reign; these are not printed in any one entire Volume, or in any Series or Order of Time, only some broken Cases thereof in Fitzherbert's Abridgment, and in some other Books dispersedly;yet there are many entire Copies thereof abroad very excellently reported, wherein are many Resolutions agreeing with those of Edw. 1st's Time. The best Copy of these Reports that I know now extant, is that in Lincoln's-Inn Library, which gives a fair Specimen of the Learning of the Pleaders and Judges of that Time.
King Edw. 3, succeeded his Father; his Reign was long, and under it the Law was improved to the greatest Height. The Judges and Pleaders were very learned: The Pleadings are somewhat more polished than those in the Time of Edw. I, yet they have neither Uncertainty, Prolixity, nor Obscurity. They were plain and skilful, and in the Rules of Law, especially in relation to Real Actions, and Titles of Inheritance, very learned and excellently polished, and exceeded those of the Time of Edw. I. So that at the latter End of this King's Reign the Law seemed to be near its Meridian.
The Reports of this King's Time run from the Beginning to the End of his Reign, excepting some few Years between the 10th and 17th, and 30th and 33d Years of his Reign; but those Omitted Years are extant in many Hands in old Manuscripts.
The Book of Assizes is a Collection of the Assizes that happened in the Time of Edw. 3, being from the Beginning to the End extracted out of the Books and Assizes of those that attended the Assizes in the Country.
The justices Itinerant continued by intermitting Vicissitudes till about the 4th of Edw. 3, and some till the 10th of Edw. 3.
Their Jurisdiction extended to pleas of the Crown or Criminal Causes, Civil Suits and Pleas of Liberties, and Quo Warranto's;the Reports thereof are not printed, but are in many Hands in Manuscript, both of the Times of Edw. I, Edw. 2, and Edw. 3, full of excellent Learning. Some few broken Reports of those Eyres, especially of Cornwal, Nottingham, Northampton, and Derby, are collected by Fitzherbert in his Abridgment.
After the 10th of Edw. 3, I do not find any Justices Errant ad Communia Placita, but only ad Placita forestae; other Things that concerned those Justices Itinerant were supplied and transacted in the Common Bench for Communia Placita, in the King's-Bench and Exchequer for Placita de Libertatibus, and hefore Justices of Assize, Nisi Prius, Oyer and Terminer, and Gaol Delivery for Assizes and pleas of the Crown.
And thus much for the Law in the Time of Edw. 3.
Richard 2 succeeding his Grandfather, the Dignity of the Law, together with the Honour of the Kingdom, by reason of the Weakness of this Prince, and the Difficulties occurring in his Government, seem'd somewhat to decline, as may appear by comparing the Twelve last Years of Edw. 3, commonly called Quadragesms, with the Reports of King Richard 2, wherein appears a visible Declination of the Learning and Depth of the judges and Pleaders.
It is true, we have no printed continued Report of this King's Reign; but I have seen the entire Years and Terms thereof in a Manuscript, out of which, or some other Copy thereof, Isuppose Fitzherbert abstracted those broken Cases of this Reign in his Abridgment.
In all those former Times, especially from the End of Edw. 3, back to the Beginning of Edw. I, the Learning of the Common Law consisted principally in Assizes and Real Actions; and rarely was any Title determined in any Personal Action, unless in Cases of Titles to Rents, or Services by Replevin; and the Reasons thereof were principally these, viz.
First, Because these ancient Times were great Favourers of the Possessor, and therefore if about the Time of Edw. 2, a Disseisor had been in Possession by a Year and a Day, he was not to be put out without a Recovery by Assize. Again, if the Disseisor had made a Feoffment, they did not countenance an Entry upon the Feoffee, because thereby he might lose his Warranty, which he might save if he were Impleaded in an Assize or Writ of Entry; and by this Means Real Actions were frequent, and also assizes.
Secondly, They were willing to quiet Men's Possessions, and therefore after a Recovery or Bar in an Assize or Real Action, the Party was driven to an Action of a higher Nature.
