The distinction is properly made by American and English jurists between °writ ten° and °unwritten° law. Even before the time of Lord Chief Justice Coke the term °written° was applied almost exclusively to statutory law; but there was a written law in England before Parliament came into exist ence, as the collections of laws going under the names of Alfred, Canute and other kings of the pre-Norman period indicate. William the Conqueror in the fourth year of his reign (1070) promulgated the so-called °Laws of Edward the Confessor,° his immediate pred ecessor and the last of the Saxon kings. These laws were collected by a grand committee of °wise and noble English (not Normans) learned in their laws and customs,° whom William had caused to be summoned from all parts of the country. The method adopted in this case bears a distant resemblance to the enactment of laws by a legislative body; but the legislation of the Norman monarchs, who governed without parliaments, usually took the form of a carta or charter. The °Great Charter,° or Magna Carta, is a glorified ex ample. The °Laws of Edward the Confessor* are little more, however, than a collation of the laws of liability and compensation, whereof several examples are given in the foregoing paragraph. More instructive, though less authentic, than the collection just mentioned, is one bearing the name of the °Laws of Henry I,° a son of the Conqueror, who reigned from 1100 A.D. The work is a com pilation, made by an unknown hand, of many things to be found in the earlier enactments, though some parts are extracted from the civil and canon law and there are several express references to the laws of the Salic as well as of the Ripuarian Franks. Notwithstanding its defects it provides better means of forming an opinion of the nature of law among the early English than does any other extant document. The impression given is, that there was a body of laws and customs sufficiently well ascertained for practical purposes, but that when anything in the nature of a legal principle or definition was required they were at the mercy of any person whom they re spected as a learned man, and who was pre pared to lay down a rule on his own or any other authority or no authority at all. Roman law must have been the source of many such legal principles, for none other was then in existence. The extent to which the civil law was drawn upon, probably, will never be clearly ascertained. The compilation of the °Laws and customs of England," which bears the name of Glanville, Chief Justiciar in the reign of Henry II (1154-89), does not anywhere cite or refer to the Roman law as authority. It did not need to. For men to buy and sell, borrow and lend, hire and let, is in the nature of things and, in an even indifferently well ordered community, customs and usages, whereby men will regulate the conduct of their affairs, are bound to spring up. Glanville's commentary on these transactions of ordinary life is in complete accord, however, with the Roman law. The principle of the /us civilis respecting °real contracts,° that the delivery of the object of an agreement created an obliga tion on the part of the receiver to complete the contract, had taken firm root in England before Bracton's time. The Roman principle as to the liability of the master for the default of his servant was first adopted in a case decided in the time of Edward III (reigned 1327-77) but the authority relied upon is the law of Oleron. The original English rule, as stated in the °Laws of Henry I,* was, that °the lord has to pay unless he can clear him self of complicity"; the Roman law held the master responsible even though himself guilt less of wrong. The Roman origin of the exist ing English rule on the subject appears clearly from the fact that for more than 400 years past every English court and every English law writer has repeated the shallow arguments whereby the Roman jurists have defended the principle of liability without default. While it seems rather illogical to call °unwritten" a body of laws recorded in thousands of volumes of printed reports and treatises, the distinction between this and the °written° law incor porated in statutes is completely justified. A statute law takes effect only from the time of its enactment and, generally speaking, affects only legal rights subsequently created or ac quired. An °unwritten° law is presumed to have been always in effect, and to be applicable to rights acquired, or existing, in the remotest time past. When a court renders a decision in accord with an immemorial custom or usage it does not make a law; it merely records the fact of its existence, though the legal rule thus established may never before have been written down. The qualification °unwritten° is, there fore, quite properly given to such law. In their origin, indeed, legislative enactments and are indistinguishable. The sovereign himself, in theory and often in fact, dispensed justice in his court, and judicial pronouncements the same as royal ordinances or carte emanated from the king. The in vestiture of distinct officials with judicial func tions, however, took place at an early date, and forms of action and rules of procedure, apparently, had been invented by the time of Henry I. Glanville in the succeeding reign speaks of the °Action of Debt° as ancient, and the °Action on Covenant° was probably estab lished contemporaneously. A writ of °Debt° was a very primitive device, being a bare state ment that so and so owed the plaintiff so much. It was employed in actions to enforce all legal obligations whether arising out of contracts (covenants accepted) or out of torts. A gen eral denial by the defendant sufficed to defeat the action. It was for this reason that other writs of action (in assumpsit and in trespass, for instance) were invented. Special pleading became a fine art, giving opportunities for the exercise of refined legal ingenuity— the pur pose being to narrow down the issue in a case to a single question of fact and a single point of law—and on this basis the structure of the common law has been mainly erected. Brae ton, whose °Leges Angliw° were written about 1258, drew the first four chapters of his work from the Roman law, but nine-tenths of his treatise is taken from the plea rolls of the courts. His extant °Note Book' contains a record of more than 2,000 cases, of which over 500 are cited in his work, and 350 folios of the latter, out of a -total of 444 folios, are devoted to the law of °Actions." From this time forth the law reports, the issue of which increases in volume from year to year, became the repositories of the judicially declared un written law. In the "Year Books') the report of a case generally consists of a statement of the form of action, the plea, a summary of the facts and the judgment of the court, whether for the plaintiff or the defendant; the rule oi law involved must usually be inferred.
From the time of Coke judicial opinions be came more and more elaborate and, nowadays, they are frequently of inordinate length even in cases involving no point of particular novelty or importance, while the reporters fol low no discoverable principle of selection in making up their volumes. The Roman system of laws begins and ends with a code. The theoretical descent of this body of law front the Twelve Tables and the theoretical ascrip tion of the common law to immemorial un written tradition were the chief reasons for the difference in the development of the two systems.
The early Teutonic law scarcely recognized individual property. A man might own his spear, his sword, his shield and other weapons of offcnse or defense; but the allod, or domain of each household, was incapable of being dis posed of by sale or testament, being strictly reserved to the kindred. Even chattels were regarded as common possessions, the family partaking somewhat of the character of a cor poration, of which the was the trustee, and the members of which were clothed with certain inalienable rights. Under the feudal system a new viewpoint was taken with regard to property in land. The Gothic, Frank ish and Saxon chieftains, who conquered the domain of the decadent Roman Empire, par celed out their conquests among their retainers in fiefs. But the land thus distributed was not owned by the person in possession. It was merely held in tenure by way of reward for prospective, as well as past, military service. When the holder of a tenure died or failed in his loyalty the property, which had theoreti cally remained vested in the sovereign, reverted absolutely- to the latter. The succession to land was in the disposition of the overlord, who could demand homage and fealty from the successor as conditions of investiture, and who would also sce to it that the latter was a person capable of fulfilling his military obliga tions. The preference of males in the line of descent and the practical disinheritance of all but the first-born were natural outgrowths of feudal institutions. The privilege of con veying land without regard to these limita tions and the view of a will, which regards it as conferring power to divert property as the fancy of the testator may dictate, are not older than the later portion of the Middle Ages. The modification of the strict feudal rules of inheritance in England was an achievement of the courts and lawyers, which was not obtained without conflict with the landed interests represented in Parliament For instance, where a conveyance or devise of land was made to a person "and his heirs," the courts held this condition to be satisfied when a.n heir was born to the grantee or devisee; though the heir might subsequently die, the right to dispose of the land by sale or will was complete. The statute (De Donis) reversed this rule of the lawyers and declared that in the event of the non-existence of an heir on the demise of the holder of a fee in land the title reverted to the grantor. The feudal law recognized entails, but the lawyers invented the process of "fine and recovery%) whereby an entail could be defeated, Finally, by the rule in Shelley's case, the word "heirs* in a conveyance of land was held not to be a word of limitation curtailing the grantee's right of disposition, unless so qualified that anothcr interpretation would necessarily have to be given to it. Another legal fiction, whereby the alienation of estates in land was facilitated, was introduced by the equity juris diction The holder of a fee simple was per mitted to create a "use" by conveying the legal titk to another, with the understanding that the grantor was to retain an equitable estate therein. The court of chancery would enforce this understanding ag-ainst the grantee, who held the legal title, and a "use" was capable of testamentary disposition. In the event of intestacy the "use" descended to the heir. Finally Parliament made a statute declaring the beneficiary of a "use" to be the real owner and permitting the disposal of estates in land by will. In this roundabout manner were "ten ures" converted into absolute rights of owner ship. In theory the holder of a tenure con tinued to owe homage to his immediate land lord, though by Coke's titne the obligation to perform military service as a condition of holding had become in the main a legal fiction. A tenancy in fee was tantamount to ownership, and there were lesser estates, as copyholds, the creation of which the possibility of the tenant trailing a pike in the service of his liege was never thought of. A copyholder was simply a lessee who paid rent, and a tease had become simply a contract. The provision made by law for the widow was attributable to the exertions of the Church, which achieved one of its greatest triumphs when the express promise exacted from the husband at marriage to endow his wife was con verted into a legal right and the principle of "dower" was grafted on the customary law of all western Europe. A milestone in the history of the common law was placed when Thomas Littleton's famous treatise on 'Ten ures) was published (about 1481). This work, written in Norman French, was the first really systematic exposition of the English law of real property. It contained not merely a clear and accurate account of the great variety of tenures then known in England, but of the rules with respect to the alienation and inheritance of land, including the law of primogeniture and entailment, as well as the rights incidental to land holding, as easements, or the right to the usuf ruct Also the property rights growing out of personal relations between the parties, for instance, a husband's estates by curtesy and a wife's right of dower. Also the absence of rights resulting from a low position in the social order, as, for example, villeinage. Also the law of actions on 'Covenant' and of 'Fine and Recovery.' In fact, for a community which was just emerging from the feudal stage of organization, and in which land alone was, literally spealcing, considered real property, the law of tenures contained a practically complete system of rules for the gOvernance of society in its ordinary civil relations. It was this that moved Camden, in his 'Britannica) to speak of Littleton as "the famous lawyer, to whose 'Treatise on Tenures' the students of common law are no less beholden than are the civilians to Justinian's Institutes.° Coke called the book "the ornament of the common law, the most absolute and perfect work that ever was written in any human science"— and when he had drowned the original rivulet of text in an inky flood of commentary, he put forth the product (in 1628) as the 'First Institute of the Law of England) In this form the work for nearly two centuries remained an authoritative textbook on the common law and, though now almost wholly obsolete, it still has undeniable historic value.