This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
While the king's courts from the outset never attempted to proceed upon the broad theory that no one should be sent away from their courts without a remedy, they allowed new writs freely in their formative period. They were very willing to extend their jurisdiction. What were the causes which led to the petrifaction of the common law procedure between the reign of Henry II and the enactment of the statute In Consimili Casu in 1284 A. D., so that its register of writs practically became a closed book to which additions could not be made, it is difficult to say. The jealousy of those who possessed local jurisdiction may in part have been the cause. The natural tendency toward conservatism was undoubtedly another cause. It frequently proves easier to establish a new court to develop a new jurisprudence than to induce an existing court to extend its principles to take in new cases. Whatever the reason, the common law finally adopted the theory which is the exact opposite of the modern theory. The chief characteristic of the English common law in its final development was that rights, which we now term substantive, were grouped in accordance with the form of action by which a violation of such right might be redressed. The modern theory of law is that, the substantive rights being stated fully and exhaustively, it at once appears whether on the facts of the case there has been any invasion of such substantive right; and that in case there is an invasion, the law gives a remedy by an appropriate proceeding as a matter of course. The common law view from the middle of the thirteenth century was exactly opposed to this. A certain number of writs were allowed by the law. Each of these writs could be given in certain specified cases. If the particular case in question did not present such a state of facts as would justify the issuing of one of the known writs, no remedy could be given. This tendency of the common law is in part a characteristic which, as we have seen,1 belongs to every system of primitive law. It was -further strengthened and intensified by the method in which the common law was built up. The reasons for the peculiar force of this idea in English law are therefore, in part, historical. The common law, as we know it, is the law recognized and applied in England by the royal courts. The law generally in force in England in the local or baronial courts in the reign of Henry II, is of great importance since it furnished by far the greater part of the materials from which the royal courts built up their new jurisprudence; but it is as a source of material and not as a rival jurisprudence that it is of marked interest to the student of modern law.2 The triumph of the law of the king's courts makes that law the ancestor of modern Anglo-American law; and the law of the local or manorial courts is of importance to us only as far as it was absorbed by the king's courts and handed on to us.
The permanent establishing of the royal courts by Henry II, is therefore one of the great crises in the development of our law, and marks the nearest approach to a break in the continuity of its development. The reforming influence in medieval law was likely to proceed from the king. The nobility were satisfied with the existing order of things: the lower classes had no means of expressing their grievances except by occasional rebellions. The middle class was just beginning to exist. Henry II, whatever his personal faults, was
1 See Sec. 2.
2 Thus according to the sub-title Glanville purports to treat of "those laws and customs only, according to which pleas are determined in the King's Court, the Exchequer and before the Justices, wheresoever they may be." a great legal reformer. He found justice in England local or feudal. By establishing royal courts and giving to them jurisdiction over certain classes of cases, he took the first steps which were to make justice in English-speaking countries first royal, and eventually national. In determining what jurisdiction his court should have, Henry II was probably not controlled by philosophical theories. He seems to have asserted for his court as wide a jurisdiction as he dared. The limits thus set were probably determined by his power rather than by consistent legal theories. In any event the royal court was one of a limited jurisdiction. Prom the first, it could only hear cases which were brought before it by certain specified forms of writs. The natural tendency of early law to formalism was thus intensified in Engand by the fact that in the court which was really making the common law, these forms were jurisdictional in character. The development of the common law, including the law of contracts, is therefore intimately associated with the development of the writs and the various forms of action on contract. These must, therefore, be considered separately.