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before us. Where were the new cases to go for which
the "dammed-up*' common law and Its courts did not
provide ?
It cannot be denied that, as time passed, a good many
small leaks began to show in the dam. While fearfully
afraid of avowed innovation in the law, the common-law
judges were not unmindful of changed conditions or of the
value of gaining new kinds of cases. But they must be
gained through such juggling with the old law as would
make it appear that there was nothing new.1 There
was much, however, for which the common law did not
provide, or for which it provided inadequately; cases of
fraud and seizures at sea were of this sort. Plaintiffs be-
gan to seek relief, in such matters, at the higher and more
ancient tribunal from which the common-law courts them-
selves had sprung, the king in his Council. There might
be grounds for this action other than the inadequacy of
the common law to cover their cases: they were poor and
unable to bear the expense of ordinary litigation, or their
poverty rendered the law's delay disastrous; they were
labouring under some local prejudice and distrusted jury
trial, or they were contending with a wealthy lord who
circumvent the circumventors of a statute. But in general it left the ordi-
nary law of the land to the judges and the lawyers. In its eyes the com-
mon law was complete or very nearly complete. And then as we read the
statute-roll of the fifteenth century we seem for a while to be watching the
decline and fall of a mighty institution. Parliament seems to have no-
thing better to do than to regulate the manufacture of cloth."—Maitland
and Montague, Sketch of English Legal History, p. 106. But despite the
legislation of Edward L's reign and the wording of some fourteenth-cen-
tury parliamentary assertions, one must conclude, on the basis of what
actually happened, that the idea of making new law by Parliament or any
other authority was but slightly developed in the middle ages. See also be-
low, pp. 298, 418-420, for the effect upon statutory legislation of the
separation in the fourteenth century of Parliament and Council.
*"In the fifteenth century there were great judges who performed
what may seem to us some daring feats in the accommodation of law to
new times. Out of unpromising elements they developed a comprehen-
sive law of contract; they loosened the bonds of those family settlements
by which land had been tied up; they converted the precarious villein
tenure of the middle ages into the secure copyhold tenure of modem times.
But all this had to be done evasively and by means of circumventive fic-
tions. Novel principles could not be admitted until they were disguised
in some antique garb."—Maitland and Montague, Sketch of English Legal
History, pp. ill, I?2.