The History of English Law before the Time of Edward I - Volumes I and II -

specific precedents (exempla) may have been alleged in court 1; in Edward I.'s day the pleaders are already citing and 'distinguishing' previous cases 3; but as a general rule the judges, [p. 163] assisted by clerks, who were on their way to become judges, would regard themselves as having an implicit knowledge of the consuetudo curiae and would not feel bound to argue about past cases. The justices of the bench would often be fully justified in behaving thus; many of them were experienced men who had worked their way upwards through all the ranks of the king's court and chancery. And so even the knights who were employed to take assizes in their shires, though they had read no law, would believe that they knew the law and custom applicable to the cases that came before them. Every man who does his duty knows a great deal of law and custom: the difficulty is to persuade him that he does not know everything2. The custom of the king's court is the custom of England, and becomes the common law. As to local customs, the king's justices will in general phrases express their respect for them4. We see no signs of any consciously conceived desire to root them out5. None the less, if they are not being destroyed, their further growth is checked. Especially in all matters of procedure, the king's court, which is now obtaining a thorough control over all other courts, is apt to treat its own as the only just rules2. A heavy burden of proof is cast upon those 1 Note Book, pi. 1213: the Earl of Chester appeals to cases concerning other palatine earls. Ibid. pi. 1227: in the exceedingly important case raising the qnestion whether a palatinate can be partitioned, the magnates reject foreign precedents; 'nec voluerunt iudicare per exempla usitata in partibua transmarinis.' In 1291 the Earl of Glouces...