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 A history of Enalish >egal„instituti^onf 
 
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A 
 HISTORY OF ENGLISH 
 LEGAL INSTITUTIONS 
 
 BY 
 
 A. T. CARTER, M.A. 
 
 OF THE nrHER TEMPLE, BARHISTER-AT-LAW 
 
 ONE OF THE HEADERS TO THE INNS OF COURT 
 
 D.C.L., STUDENT OF CHRIST CHURCH 
 
 LONDON 
 
 BUTTERWORTH & CO., 12 Bell Yaed, Temple Bae. 
 
 3Law ipublisbcrs 
 
 1902 
 
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OXPORD 
 
 HORACE HAET, PBINTEE TO THE UNIVEHSITY 
 
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PREFACE 
 
 This book is based on a volume published nearly 
 four years ago, which was little more than a course 
 of lectures on EngHsh Legal History that I de- 
 livered in the Inns of Court. 
 
 Time has brought fuUer information, and has 
 modified some of the views then expressed, with 
 the result, I hope, that a more accurate and com- 
 plete view of our legal history is now presented to 
 the reader. 
 
 Accurate historical knowledge is of itself a good 
 and desirable thing, but here it has I think a special 
 value of its own. In England we have a legal 
 system which we can trace from its small begin- 
 nings; a system which, I wiU venture to say, is 
 more interesting and not less perfect than that 
 of Rome ; a system which displays in the history 
 of its development aU those features which the 
 student of Jurisprudence is invited to study. The 
 nature of Law, and its relation to Custom, the 
 relation of Law to Sovereignty, the foundation of 
 jurisdiction in consent, the value and position 
 of Legal Fictions, Equity, and Legislation, the 
 existence of Royal residuary jurisdiction, all are 
 topics which are illuminated by a knowledge of 
 our own legal history. 
 
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PREFACE 
 
 And here surely we find the true view of the 
 relation of Historical and Analytical Jiu-isprudence. 
 No system of Analytical •Jurisprudence can be at 
 the same time scientifically true and historically 
 false. ' After all,' said the late Lord Coleridge in 
 court one day, ' things are what they are, and not 
 other things,' and one negative instance properly 
 established is the death of the most flourishing 
 generalization. 
 
 Armed with a knowledge Of the legal history 
 of his own country, and, if possible, of other 
 countries also, the student will be in a position to 
 consider for himself the value of the Austinian and 
 Neo-Austinian canons in Jurisprudence. 
 
 To all those authors whom I quote I offer my 
 grateful acknowledgements, especially to Professor 
 Maitland and the other editors of the volumes of 
 the Selden Society, from some of whom I have 
 received personally great kindness. I desire to 
 thank Sir Frederick Pollock for generous encour- 
 agement, and for permitting me to use two articles 
 originally written for the Law Quarterly Review. 
 
 Lastly, I am much indebted to my brother, 
 Mr. R. C. Carter, of the Inner Temple, for revising 
 the Text, arranging the matter, and seeing the 
 book .through the press, things which sudden illness 
 forbids me doing for myself. 
 
 A. T. C. 
 
 Oxford, 
 Sept. 1902. 
 
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CONTENTS 
 
 Chapter 
 
 I. Early Law and Custom 
 
 II. The King and Early Justice . 
 
 III. Before the Normans ..... 
 
 IV. The Norman Conquest. English and Conti- 
 
 nental Feudalism ...... 
 
 V. The King and Procedure. The Inquest . 
 
 VI. The Norman Courts of Justice. Royal and 
 Local ........ 
 
 VII. The Decline of the Local Courts. The Royal 
 Writ Process. ...... 
 
 VIII. The Decline of the Local Courts (continued). 
 The Grand and Petty Assizes 
 
 IX. The Circuit System and the Central Court . 
 
 X. The English Justinian 
 
 XI. The Courts of Common Law . . . . 
 
 XII. The High Court of Parliament^ the House 
 of Lords, and the Court of the Lord 
 High Steward 
 
 XIII. The King's Council . 
 
 XIV. The Star Chamber . 
 XV. The Court of Chancery 
 
 XVI. The Court of Requests 
 XVII. The Court of Admiralty 
 XVIII. The Judicature Acts 
 
 page 
 1 
 
 10 
 
 16 
 
 22 
 30 
 
 35 
 
 46 
 
 55 
 63 
 71 
 84 
 
 96 
 110 
 130 
 150 
 162 
 167 
 177 
 
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CONTENTS 
 
 Chapter page 
 
 XIX. The Courts of the Counties Palatine and of 
 
 Wales . 185 
 
 XX. The Coroner 188 
 
 XXI. The Justices of the Peace . . . .194 
 
 XXII. Criminal Trials and the Criminal Jury . .199 
 
 XXIII. Civil ProcTess and the Civil Jury . . .213 
 
 XXIV. The Clerk 222 
 
 XXV. The Clerk (continued) 242 
 
 XXVI. The Early History of the Law Merchant . 250 
 
 XXVII. The Jew 271 
 
 APPENDIX. 
 
 I. The Writ in Consimili Casu .... 277 
 
 II. The Halifax Gibbet-Law and the Court of 
 
 the Savoy 284 
 
 III. The Little Red Book of Bristol . . . 289 
 INDEX 299 
 
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CHAPTER I 
 
 EARLY LAW AND CUSTOM 
 
 We are told by those whose authority we should neither Types 
 wish nor venture to impugn that human society displays 
 three great types. The first of these types is associated 
 with a minimum of culture, it does not seek or care to iden- 
 tify either parent, and it is illustrated by the Totemic group. 
 The second type exhibits the so-called Matriarchal system, 
 which seizes on the one fact in family relationship that is 
 capable of proof, and traces descent through the mother. 
 In the third and highest type we find what is well known to 
 us as the Patriarchal Family system, where descent is counted 
 through the father, who is the head of the Family. The 
 Patriarchal idea finally acquires such force as to cause the 
 want of natural children to be artificially supplied by adop- 
 tion. This Family, it has been widely held, eventually 
 expanded into the Clan or Tribe; blood relationship, real 
 or fictitious, being at the bottom of both organizations. 
 But here we wander in the pleasant fields of speculation. 
 We know of the three types, but we do not know what if 
 any relationship exists between any two of them, and 
 whether there is any constant relation between Family 
 and Clan. 
 
 We are so accustomed to regard the Family as the unit The 
 of society, that we are in danger of forgetting that there 
 were and are places where this unit is unknown. It is a 
 perplexing problem to find the source of the Family idea. 
 
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2 ENGLISH LEGAL INSTITUTIONS 
 
 That it was part of the original equipment of our animal 
 nature we can hardly assert in presence of the behaviour of 
 the young of birds and beasts, who, on learning to fly and 
 run, leave the home, and know their parents no more. 
 There is also plenty of evidence in the old writers, and 
 modern investigation confirms them, of a social condition 
 in which the family idea is barely discernible. Both in 
 Herodotus and Strabo accounts are given of societies where 
 the family is either non-existent or is beginning to emerge 
 from a larger group ^, 
 
 Anthropologists may some day agree in fixing the true 
 relation of the Family to the Tribe, and they may aUot an 
 undisputed place in this scheme to the Cave man. Lurking 
 like a Cyclops in his lair, with his squaw and his litter 
 around him, did he lead a life which Hobbes describes as 
 'solitary, poor, nasty, brutish, and short,' or did he — and 
 this view has evidence to support it — form part of some 
 larger kind of association within the cave ? It may be that 
 some day we may be told whether the swarm crystallized out 
 into the Family or into the Tribe or into both Family and 
 Tribe ^. Sufficient for the purposes of our inquiries, which 
 
 ^ Cf. the account of the Gindanes who enjoy a system of free love 
 (Herod, iv. 176), and of the Massagetae, who seem to have a mixture 
 of individual and joint ownership in women (ih. i. 216). So in Straho 
 783 there is mention of a system in Arahia of common ownership 
 vnthin the tribe, fiiyvvvrai 8e koI fijfrpaai' liOix<S he ^rjiiia ddvaros, /lotvor 
 8' ianv i e| aXXov yevovs. They have these institutions, says Straho, 
 in order that they may all be brothers. Herodotus gives precisely the 
 same explanation of the similar practice of the Agathyrsi, who thus 
 anticipated Plato's sketch of a society made stronger by the absence 
 of the family tie (iJep. bk. v). Symptoms of a change are perhaps 
 discernible in the case of the Auseans (Herod, iv. 180) who have con- 
 nexion KTrjvrfiov, but when the chUd is three months old all the men 
 collect, and he is said to he the father whom the child resembles : see 
 also Herodotus's account of the Nasamones (ib. iv. 172), whose bridal 
 night custom of promiscuous intercourse with the guests may be re- 
 garded as a compromise between joint and several ownership. 
 
 '^ I am indebted to my friend and colleague Mr. J. L. Myres for 
 
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for we may suggest that one of the marks of a Nation is 
 that it has a notion of ' legality,' that is, that it is inclined to/ 
 obey similar or identical rules of conduct, and we explain this 
 inclination by the fact that the Nation is composed of men 
 who have either inherited or acquired a similar character. 
 
 It is good for us, the cultivated product of the rigorous 
 training of past ages, to realize the condition of the Primi- 
 tive man, who did what was right in his own eyes, whose 
 notions of law were those of a Cyclops, and whose morality 
 was to be found, if anjrwhere, in what Mr. Bagehot has 
 called wild spasms of wild justice, half punishment, half 
 outrage, vague and intermittent. 
 
 My thesis is that the Law grows as the Nation grows, that 
 the one cannot be checked without the other being blighted, 
 that, in short, the phenomena of them both are but two 
 aspects of the same great process. 
 
 When our race was young, the good and efficacious rule of 
 Nature was, that the weakest went to the wall, and that 
 only those won who were fit to win. Those communities 
 which had the aptitude for cohesion killed or enslaved those 
 who had not. Any form of polity — and the worst of them 
 implies a subordination of more or less value — is better and 
 
 pointing out that it is possible that when private property was recog- 
 nized in domesticated animals, property in children became valuable, 
 inasmuch as children were useful in keeping the animals from stray- 
 ing, and that whereas for this reason pastoral people desiring children 
 would naturally be polygamous, the fighting peoples on the march 
 do not wish superfluous womenkind. They make the laager too big. 
 Such people are monogamous. 
 
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4 ENGLISH LEGAL INSTITUTIONS 
 
 stronger than none. This notion of political subordination, 
 of willing and rational obedience, is natural to us who are 
 the children of the past, but there must have been a time 
 when such submission was a strange and temporary expedient. 
 
 Modern Laws are laws with us because we wish them to be so, ' we 
 
 Ancient count heads to save the trouble of breaking them,' we obey 
 Custom, laws because we ourselves have made them. How far this 
 condition of things satisfies the Austinian canons may 
 perhaps be open to discussion, but there can be no doubt 
 that they have no application to early states of society. In 
 those rude times there was no law in the Austinian sense. 
 Custom there was, declared and, if we remember the history 
 of our own common and judge-made law, we may probably 
 add, moulded by the kings in 'dooms' or Beixiares, i. e. judge- 
 ments on particular occasions. Such law was 'half an 
 invincible prescription and half a Divine revelation.' The 
 worship, so widely prevalent, of the Ancestor, who was 
 either originally a God, or who at his death was gathered to 
 the Gods, and still watched over the fortunes of his descend- 
 ants, and expected customary honour from them, tended to 
 give the utterances .of the chief who was himself ' about to 
 become a God' a special and religious value. 
 
 Power of Breaches of customary observance — and in those times, 
 religion, morals, ceremonies, and sanitary ordinances were all 
 one, nor must we forget that in some places they are so 
 still — exposed the offender to serious penalties as one who 
 had risked bringing iU fortime on his community. The 
 savage is like a child, he is afraid lest he has made somebody 
 angry, like a child he is imitative, and like some children of 
 an older growth he is the slave of precedent. To do some- 
 thing which no one has done before is to do something, or 
 to run the risk of doing something, wicked or, what is just 
 as bad, unlucky. Not however unlucky to the sinner only. 
 As Mr. Bagehot has happily said, 'Guilt with us is an 
 
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EARLY LAW AND CUSTOM 5 
 
 individual taint consequent on choice, and clinging to the 
 chooser. The early tribe or nation is a religious partnership 
 on which a rash member by a sudden impiety may bring 
 utter ruin. There is no " limited liability " in the political 
 notions of that time,' If this is the accepted view, tolera- 
 tion, as he observes, is not only wicked but silly. Church 
 and State are identical, and custom enforced often enough 
 with savage sanctions binds the community together. Those 
 communities that submitted most quickly have vanquished 
 those who were less tractable. Those that have stooped to 
 discipline have stooped to conquer — ^the meek have inherited 
 the earth. 
 
 This, says Mr. Bagehot, is the first step towards civili- 
 zation, and a great part of the human race has never taken 
 a second, for 'tyrant custom' has killed out all those 
 propensities to variation which are the root of progress. If 
 we look for the reason why some stood still while others 
 went on, we are struck by the fact that the progressive 
 peoples consisted of fighting communities on the march, 
 whose system was Patriarchal and monogamous, and whose 
 family life contained a military despotism ' writ small.' But 
 this is not all. The Aryan groups agree in exhibiting a uni- Tjrpe of 
 form type of polity. We always find them ruled by a chief, so.gj^g4 
 a ring of wise men, and a general assembly. Whether or 'Aryan' 
 no this form of government was a polity inherited by these 
 groups from some common source, it is one which we are 
 not surprised to find in an armed host of free men always 
 on the march. Doubtless for the purposes of a battle or a 
 campaign, a temporary despotism was accepted by men whose 
 military sense told them what Macaulay told a later race, 
 that no army ever prospered under a debating society. In 
 struggles which were affairs of victory or extinction, there 
 could be no systematic evasion of responsibility. The con- 
 scious employment and endowment of incompetence mark 
 
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6 ENGLISH LEGAL INSTITUTIONS 
 
 a more complex and less virile organization. Experience 
 taught those rude and simple people that when something 
 has to be done the wisest policy is to select the best man, 
 and confer on him some kind of dictatorship. But that in 
 matters of general policy the sense of the free men was 
 taken, ancient and mediaeval history agree. One cannot 
 help feeling that Mr. Bagehot's acute discernment led him 
 aright when he said that ' discussion ' was the great solvent 
 of custom, for if a subject may be discussed it is an admis- 
 sion that men are free to choose. Add to this the fact, to 
 which too much weight can hardly be given, that those men 
 were on the march through new scenes, climates, necessities, 
 and dangers, in the midst also of new populations with whom 
 they intermarried, and it is not hard to see that adaptability 
 to new conditions was essential to their existence. 
 
 Fate ordained that Western Europe should be the great 
 arena in which the travelling swarms should fight their 
 battle out, and this circumstance gave a position of perma- 
 The King, nent prominence to the host-leader or king. When the long 
 march is finished the conquering host settles down and 
 becomes a territorial unit, rules of conduct are evolved by 
 a process of comparison and selection, and the king stands 
 forth as guardian and declarer of the customs. 
 
 The Probably he was not much more than this. The deposi- 
 
 taries of custom and old usage are naturally those members 
 of the community who possess the longest experience. These 
 'Ancients ' or yepovres remember, or, what is much the same 
 thing, say that they remember, precedents exactly in point, 
 and are not unwilling to give advice. We may note that in 
 our own history the king has always been in theory advised 
 by wise men, whether they be called Witan, Council, or 
 Parliament. 
 
 From these coimcillors the king gets his law, but he must 
 depend on his own wit or sagacity to arrive at a right 
 
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EARLY LAW AND CUSTOM 7 
 
 judgement on the facts, and should he succeed he will be 
 hkened to Solomon. He is not expected to legislate or 
 make new law, his duty — ^which he must not exceed— being 
 to maintain old customs. And although now half of our 
 countrymen would probably say that the important work of 
 Parliaments is to make new laws, the great number of 
 eaxly declaratory statutes bear testimony to the fact that 
 society then regarded change with apprehension and dis- 
 like. 
 
 If the nature of custom be borne in mind, much that was Relation 
 obscure becomes plain. We find various customs existing P^^'^stom 
 in various parts of England, and we particularly notice the land to 
 three great systems of Custom called, respectively, the Dane Law. 
 Law, the Mercian Law, and the Wessex Law, which at one 
 time portioned out and prevailed over the greater part of 
 this country. But, under the centralizing influence of the 
 Norman Kings, the only custom that survived was the 
 custom of the King's Court, that is, custom formed by 
 a process of comparing, selecting, and rejecting local cus- 
 toms. In this process we can hardly doubt that ' generality,' 
 in the sense of wide acceptance, was a determining charac- 
 teristic, for such acceptance is the best evidence of suit- 
 ability. TQig custom of the King's Court was what we know 
 now as the Common Law. It is hot needful to descant here 
 on its merits. Coke declared it the ' perfection of reason,' 
 and that is perhaps high enough praise. But it is proper 
 to suggest why this praise may not have been undeserved. 
 The CoAimon Law was a careful selection from those usages 
 which from time to time the common sense and experience 
 of our countrymen pronounced to be valuable. It was set 
 forth in no Code, but was said to be ' in gremio iudicum,' 
 and in this way much of our law is 'judge-made,' an origin 
 which some philosophers consider a reproach, though in 
 reality it should be a title to regard, for the judges give 
 
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8 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Composi- 
 tion of 
 English 
 Law. 
 
 General 
 and Par- 
 ticular 
 
 Customs. 
 
 articulate expression to the common legal consciousness, so 
 that the law makes a healthy and continuous growth, ' crescit 
 occulto velut arbor aevo,' adapting itself to new environ- 
 ment, developing, yet preserving identity. 
 
 Such being the nature of Custom, we may venture to 
 suggest what ' Law ' is. With us Statute Law is found in 
 Acts of Parliament, anything else is law when pronounced 
 by the courts to be so, and not until that moment. Custom 
 is a great source of law, and law derived from that source 
 may be styled Customary Law. The only disadvantage in 
 using that phrase is that some writers have fancied that 
 Customary Law is a tertium quid, ranging somewhere between 
 Law and Custom. This notion may be at once dismissed. 
 Custoin is not law till it is recognized by the Courts. 
 
 At this point we must distinguish between general and 
 particular customs. A ' general ' custom when proved and 
 judicially accepted need not be proved again, it has passed 
 out of the region of facts into that of law, it is part of the 
 Common Law, and the courts ' take judicial notice ' of it. In 
 this way the ' custom of merchants ' has become part of the 
 law of the land so gradually that to-day it is hard to say 
 what the custom of merchants precisely was. A ' particular ' 
 custom, on the other hand, must be proved like any other 
 fact as often as it is desired to read it into a contract ; it is 
 a matter of fact for the jury, and not a matter of law for 
 the judge, and it is allowed for on the assumption that both 
 parties had it in their minds when making the contract, and 
 that to disregard it would be to fail in effectuating the 
 intention of the parties. 
 
 The usage of merchants made a Bill of Exchange negoti- 
 able, when contracts were unassignable at Common Law, and 
 a Promissory Note actionable when Common Law required 
 a seal. This is indeed rather ancient history, but in the 
 
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EARLY LAW AND CUSTOM 9 
 
 Bechuanaland case ^ Mr. Justice Kennedy with the approval, 
 I believe, of the profession declared that the virtue of 
 custom is still alive, and that a general custom may 
 still win its way into the Common Law. Some have 
 said that beside being general the custom must also be 
 immemorial. In answer to this criticism it is enough to 
 point out that there must have been a time when most 
 mercantile usages were recent, and that inland Bills of 
 Exchange in particular were anything but immemorial when 
 recognized as negotiable by the Courts. Thus has the 
 Common Law grown, and its relationship to general custom 
 both proves and explains its vigorous life, and its ' perfection 
 of reason.' 
 
 ^ Bechuanaland Exploration Co. v. London Trading Co., 1898, 2 Q. B. 
 668, followed and approved by Bigham J. in Edelstein v. Schuler and 
 others. The Times, May 10, 1902. 
 
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CHAPTER II 
 
 THE KING AND EARLY JUSTICE 
 
 Appear- In the preceding chapter attention was invited to the 
 
 of the possible effects of external pressure on Tribal development ; 
 Nation. it remains to offer a hypothesis explaining the appearance 
 of the Nation. The Tribal or Clan organization depends 
 largely for its cohesion on the feeling that attaches to blood 
 relationship real or fictitious. A basis of this kind is not 
 essential to the life of the Nation, though, as in the case 
 of the Romans and the ' children of Israel,' signs have not 
 been wanting of a willingness to call on that powerful senti- 
 ment to come to the assistance of national stability. 
 
 Here, too, external pressure has done its work. In early 
 warfare there are few half-tints ; there is usually a bare choice 
 between triumph and extinction. Victory rewards those 
 who first estimate the value of co-operation and of the 
 subordination of means to ends. We have to suggest that 
 those clans which combine, survive, and that those which do 
 not, disappear. The surmise is simple and attractive, for 
 it conforms to the great law which proclaims the survival of 
 the fittest. Nor is evidence wanting to support it. We 
 read that in the time of Tacitus, the Germanic peoples were 
 divided on the clan system, and the historian fortunately 
 gives the names amongst others of the Chauci and Cherusci. 
 In the three centiuries after Tacitus wrote, we find that these 
 clans have disappeared in new groups, these groups being 
 known as Franks, Saxons, and Alamanni, and that the Saxon 
 
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THE KING AND EARLY JUSTICE 11 
 
 group includes the Chauci and the Cherusci. It is quite 
 possible that in the legendary story which makes Romulus 
 divide the Romans into the three tribes of Ramnes, Tities, 
 and Luceres, we have the true order of events reversed, and 
 that the Hero owed his eminence to the amalgamation of 
 three blood groups. 
 
 For as the instinct of self-preservation produces combina- The 
 tion, so it demands that the combination shall be efficiently J^^. j^g 
 led. The league produces the Heretoch or the host leader ^, military 
 the war lord or king. Thus on the continent, Prince Hugh 
 was chosen, by the Frank, Burgundian, and Aquitanian princes 
 gathered together, to be a leader in war against the Huns, 
 who, ' drunk with slaughter, rapine and all kinds of cruelty^ 
 poured themselves over the Gauls ^.' And in the history of 
 the children of Israel we know that ' the Judges' were elected 
 in times of great' stress to deal with the enemy ; and that 
 when Saul was elected king, the people said, ' We will have 
 a king over us that we also may be like all the nations, and 
 that our king may judge us and go out before us and fight 
 our battles.' One cannot help observing that Samuel in his 
 warning to the people sketched out ip a remarkable manner 
 a conception of a feudal monarchy '. 
 
 A king being, it is suggested, primarily selected to deal 
 with external foes went on to deal with internal disorder — 
 Saul's commission we notice is twofold— thereby anticipating 
 the view advanced by Mr. Herbert Spencer, when he says 
 that the true functions of the State are to protect against 
 external enemies and to suppress internal anarchy. 
 
 Following the accounts of early writers, we find that the The Blood 
 patriarchal or primitive man, if he suffered injury, took his 
 
 • Cf. the quotation from Baeda, Hist. Ecel. v. 10, on the custom of 
 the Saxons, ' ingruente helli articulo.' Stuhbs, Sel. Oh., p. 59. 
 • ^ Jenks, Law and Politics in the Middle Ages, cc. 1-4. 
 
 ' 1 Sam. viii. 
 
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12 ENGLISH LEGAL INSTITUTIONS 
 
 revenge as well as he could. If he was slain his relatives 
 took indiscriminate vengeance on all who were supposed to be 
 connected with the murder or with the murderer. A distinct 
 advance is made when it is recognized that the right of 
 vengeance belongs properly only to a limited circle of the 
 relatives of the dead man, and that retribution can only 
 properly be enacted from a limited circle of the relatives of 
 the offender. This is the stage of what is called ' the blood 
 feud,' and is to be foimd even now in some form in primitive 
 and uncivilized communities. The next stage is reached 
 when it is perceived that this slaughter, even though con- 
 fined to a certain area, is hurtful to the society which 
 permits it. It is perceived to be a wasteful expenditure of 
 human life, which has a value for the community, and must 
 not be appropriated to a private feud. 
 
 Buying In a state of society, to call it so, where the problem of 
 
 Feud. over-population was unknown and probably would have been 
 unintelligible, where no humanitarian sentiment nullified the 
 principles of natural selection, where only the strong could 
 live, where the father of many male children was happy in 
 that he could speak with his enemies in the gate, and ' hand- 
 fasting ' and ' bundling ' were but natiu-al tests of capacity, 
 as on our own Borders, the community could ill spare its 
 warrior, its man who could fight, and there grew up the view 
 that a compensation is to be permitted, i. e. a payment to 
 buy off the feud. Indeed the word faidus, which is found 
 on the continent, means indifferently the feud itself or the 
 payment which buys it off. It was apparently at first quite 
 optional with the injured party or his relatives to take or 
 reject the payment, but the amount of the payment seems 
 at a very early period to have been settled by the common 
 judgement of the community. Then there grows up what 
 may be called an opinio necessitatis, i. e. the opinion that 
 compensation ought not to be denied when asked or refused 
 
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THE KING AND EARLY JUSTICE 13 
 
 when offered. There are, however, some offences which are 
 
 so grave as to be irredeemable or, as it is called, bootless. The 
 
 For them no payment is permitted. For instance, if a man 0^°^*^^^' 
 
 catches his enemy asleep or in church and kills him, he 
 
 is expelled by his community and driven forth an outcast. 
 
 The stage at which compensation became customary cannot 
 
 have been very much anterior to the compilation of customs 
 
 known as the Leges Barbarorum, for the Lex Salica, the Lex 
 
 Ribuaria and the Dooms of Ethelbert are full of minute 
 
 regulations on the subject. 
 
 At this point we mark the intervention of the King, who The King 
 takes advantage of public opinion to compel the payment of Crhninal 
 the compensation. He also compels the acceptance of it, and Justice. 
 he takes 33^ per cent, of the compensation for his trouble. 
 In Anglo-Saxon language the general word for compensation 
 is hot. The word for that part of the compensation which 
 goes to the injured man or his relatives is wer, that part 
 which goes to the king being called wite. On the continent 
 the word faidus stands for wer, while the word fredus is 
 the equivalent of wite, and means a fine for the breach of 
 the king's peace, friede. And it is interesting to see that 
 so strong has the king's position become, that in the peace 
 of Hildebert and Clothar, if a man compounds secretly for 
 theft, he is a thief, for he has got the king's share. The 
 action of the king with reference to the man who has Tort and 
 committed a bootless offence deserves special mention. 
 The expulsion of the offender by the community which 
 he has outraged is harmfixl to the king's interests, for it 
 takes away a warrior; the king therefore will overlook 
 the offence on payment of a fine — ^to the king. The offender 
 returns from the wilderness, and exemplifies the first opera- 
 tion of the new idea — Punishment, as opposed to Compensa- 
 tion. For offences, which the king or the State can pardon, 
 come naturally to be considered offences against the king or 
 
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14 ENGLISH LEGAL INSTITUTIONS 
 
 against the State. And this, it is suggested by Mr. Jenks, 
 is the historical origin of the distinction which we nowadays 
 observe between Tort and Crime. 
 
 We possess the list, or rather the lists, of the Anglo- 
 Saxon compositions (wergild). These compositions varied in 
 various places ; but in Anglia the king's life was valued at 
 30,000 thrimsas, the prince's at 15,000, a bishop's or alder- 
 man's 8,000, a sherifTs 4,000, a thane's or cleric's 2,000, 
 a churl's 266 K 
 
 Adjective The first problem that meets a political society, so im- 
 Brioritv perfectly co-ordinated that 'force is no remedy,' is how to 
 persuade the plaintiff (for it cannot compel him) to come 
 into court, and deny himself the pleasvure of private revenge. 
 The next task is to consider the means of forcing the 
 defendant to come in. The plaintiff was bribed in various 
 ways. In the Roman law we know that the fwrtvjm 
 manifestum is punished with twice as much severity as the 
 furtvmi neclmmiifestum, and the explanation which is offered 
 is that the injured man would be more likely to stay his 
 hand when he caught the thief in fresh pursuit, if he knew 
 that the law would, in punishing the culprit, consider not 
 only the nature of the offence, which was indeed the same 
 in both cases, but also the legitimate indignation of the law- 
 abiding citizen. Our own Henry I decreed that all thieves 
 taken in the act should be hanged ^. It may, however, be 
 that the skilful thief was considered rather admirable, 
 and that the bungler got no sympathy. Spondes peritiam 
 
 It is probable that trial by battle was another way of 
 inducing the plaintiff to come in. It is happily suggested 
 by very high authority that the Burgundian rulers, in order 
 to stop the execution of private vengeance, offered the plain- 
 
 1 Stubbs, Sel. Gh., p. 66. ^ Ibid., p. 97. 
 
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THE KING AND EARLY JUSTICE 15 
 
 tifiF the physical joy of battle together with the intellectual 
 pleasure of legal procedure ^ It is certain that in early 
 stages of legal development, the plaintiff, after he has once 
 got the judgement of the court, is permitted to go and 
 execute the judgement by himself, the explanation probably 
 being that the executive was too feeble to execute its judge- 
 ments itself^. 
 
 The prohibition occurring in the Dooms of Ine of Wessex, 
 A.D. 680, against taking the law into one's own hands without 
 going first to the proper court to seek justice, shows that at 
 that time the 'reign of law' is only beginning. But it was 
 as difficult to bring the defendant into court as it was to 
 persuade the plaintiff to forgo his right of private vengeance. 
 The early codes which are known to us, as Sir Henry Maine 
 pointed out, deal largely with the important topic of sum- 
 mons, e. g. how the defendant is to be brought into court. 
 If he is too ill to move, what steps may the plaintiff take to 
 bring him ^ ? What must be done if the defendant declines 
 to come ? Partictilar instructions are given in case of default 
 of appearance. The remedies of distraint and outlawry are 
 freely employed, and down to a recent period the English 
 law recognized the persuasive treatment of the peme forte et 
 dime to compel consent to the jurisdiction. 
 
 ^ Pollock and Maitland, History of English Law, i. 2. 
 
 ^ Cf. an extraordinary custom in the north country mentioned in 
 P. and M. ii. 495, n. : ' Northumherland Assize Rolls, p. 70. Con- 
 suetado comitatus talis est, quod quamcito aliquis capiatur cum 
 manuopere statim decolletur, et ipse qui sequitur pro catallis ab ipso 
 depridatis, habebit catalla sua pro ipso decoUando.' 
 
 = Cf. the XII Tables. 
 
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CHAPTER III 
 
 BEFORE THE NORMANS 
 
 Saxon The times before the Norman invasion deserve some con- 
 
 us ice. sideration from our point of view, because they are intro- 
 ductory to the system set up by the Norman and Plantagenet 
 kings, and present certain old and peculiar features which 
 long survived as part of our law. 
 
 Our information about these times is not abundant, and 
 in one particular subject there is much undisclosed. But 
 some few points there are which are interesting. 
 
 Justice was administered in the hundred courts every four 
 weeks, in the shire courts twice a year ^. These courts had 
 no professional assistance, every man was his own lawyer, it 
 was an assembly of the neighbours. They had no policemen, 
 and no process by which they could compel attendance. K 
 a man declined to come, the only weapon in their armoury 
 was outlawry. The business was mainly the trial of offences 
 of violence and theft, the theft being usually of cattle, civil 
 business was scarce, and credit was almost unknown. One 
 may surmise that they declared the local customs, awarded 
 compensation, and acted generally as a board of mutual 
 arbitration in neighbours' disputes. 
 
 Besides these there were courts of private jurisdiction, 
 held in virtue of grants of ' sac ' and ' soc,' two mysterious 
 words which seem to mean the right to hold a court, and the 
 right to the profits therefrom. 
 
 1 Stubbs, Sel. Ch., 70, 105. 
 
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BEFORE THE NORMANS 17 
 
 At the present day a party is required to 'satisfy the 
 court and jury.'' He was under no such necessity then. It 
 was no duty of the court to try to discover the truth, to 
 weigh the evidence, or even to form an opinion. What the 
 court did, on hearing the particulars of the complaint, was to 
 decide which party should have the proof given to him; 
 having delivered this decision in what is now called a ' medial 
 judgement,' the pares curiae were, save as spectators, ' fiincti 
 officio.'' The rest was left to God. An appeal was made in 
 some form or other to the supernatural. Incivil cases an 
 oath was taken either by the party alone, or together with 
 compurgators, and if the oath was formally and neatly 
 taken — for 'qui cadit a syllaba cadit a tota causa' — here 
 was not evidence merely, but actual incontestable proof. 
 Proof was one-sided, and it was accordingly of the greatest 
 importance to settle who was to be allowed to give the proof. 
 In criminal cases also the oath was used, but was reinforced 
 by the ordeal where the accused was a bad character and not 
 oath-worthy, or if the circumstances were too strong, and he 
 was unable to get helpers to swear that they believed his 
 oath. One kind of criminal did not get even this chance ; 
 a man taken redhanded was sentenced without any of the 
 law's delay, ' ea quae manifesta sunt non indigent probatione.' 
 
 A good character was a valuable asset, and its owner, 
 when accused of some offence, might, if the case was not too 
 black, be permitted to clear himself with say eleven compur- 
 gators. He swore himself, and if he could so manage that 
 neither he nor any of his friends swallowed some word in the 
 formula or dropped the book on the floor, his innocence was 
 established, he had successfully ' waged his law.' 
 
 The origin of the institution of ' compurgation ' seems to Compur- 
 lie either in kinship or in some form of artificial association, 
 or in both. If the compurgators were not originally kins- 
 men, kinsmen could always be compurgators. Mr. Pike 
 
 c 
 
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18 ENGLISH LEGAL INSTITUTIONS 
 
 prefers to connect the institution with the Gild which in 
 various forms involved the principle of association whether 
 voluntary or compulsory ^- If a man had no kin, and thus the 
 blood feud became nugatory, he must, says Mr. Pike, be given 
 an association. This became general and compulsory. Every 
 free man below a certain rank must be in a Tithing of ten, 
 who mutually insured each other's conduct, and had thus a 
 distinct pecuniary interest in each other's acquittals. The 
 hundred was perhaps originally a gild of one hundred 
 freemen, and had at one time theoretically a view of frank- 
 pledge. 
 
 The Danes said that a man who could not name his 
 tithing and hundred was an outlaw, that his kin had no 
 right to compensation, and that if accused he could not get 
 off by compurgation. 
 
 It is almost certain, says Mr. Pike, that the fellow tithing 
 men or hundredors could make oath for him, and if they 
 failed they paid. The voluntary gilds in the same way 
 helped the unhappy brother. To screen such a one was not 
 only socially meritorious, but economically correct ^. 
 
 We have noticed ' the extreme formalism of this early pro- 
 cedure, the technicality which is ' the disease not of the old 
 age but of the infancy of societies,' when what a man says is 
 not more important than the way in which he says it. 
 
 We now proceed to note another remarkable feature of 
 the justice of those times. The conviction that it is humanly 
 impossible to prove ' intent,' a fact of which a common jury 
 
 ' Hist, of Crime in Eng., 65 sq. 
 
 ' Whether the institution arose in late blood feud procedure or is 
 one more instance of the efforts which early times make to supply 
 a workable substitute for blood relationship, we may sympathize with 
 Mr. Pike when he condemns it as vicious on two grounds, not merely 
 because it must have profoundly sapped the morals of the laity, but 
 also because it occupied them in persistently proving negatives. 
 
 ' Maine's Early Law and Custom, c. vi. 
 
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BEFORE THE NORMANS 19 
 
 of the present day is invited to infer from surrounding 
 circumstances, produced minute rules as to external conduct. 
 Even as late as the seventh year of Edward IV, the Chief 
 Justice Brian said, ' The thought of man is not triable, for 
 the Devil himself knoweth not the thought of man.' A kills 
 B. The question arises — Was it intentional or was it an 
 accident? The Anglo-Saxon court asked, How was A 
 carrying his spear ? Was he carrying it horizontally on his 
 shoulder or with the point three fingfers above the butt? 
 Was he can-ying it with the point back or in front ? The 
 intent of A is not considered, the rule being that a man 
 shall carry his spear in a certain way, and if A has abandoned 
 the rule, he has abandoned it at his risk. Again, the 
 difficulty in getting direct evidence of guilt, coupled with 
 the distrust apparently felt for inferential processes, explains 
 the severity of the Anglo-Saxon law against those who have 
 been often accused, and are of no credit. Such a man, if 
 accused of any crime, is already lialf-condemned : there is no 
 rule that he must be presumed innocent till he is found 
 guilty 1. 
 
 It must not, however, be supposed that all over England Absence 
 the laws or customs were identical. Our law was indeed 'c(Hiimon 
 Teutonic, but it came from more than one source. A large law.' 
 element was introduced by the English conquest ; a second 
 element was brought from Scandinavia by the Danish in- 
 vaders, and the Normans contributed another portion, con- 
 sisting of Prankish ideas and customs, which were nothing 
 more than a variation of Germanic law. About a third of 
 England was known as the Dane law. There was an exten- 
 sive Danish population which lay to the north-east of 
 Watling Street, and held the five boroughs of Stamford, 
 
 ' The late Mr. Justice Stephen expressed his inability to understand 
 why a man should be presumed to be innocent when a Grand Jury have 
 sworn that they thought him guilty. 
 
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20 ENGLISH LEGAL INSTITUTIONS 
 
 Leicester, Derby, Nottingham, and Lincoln, places of great 
 size and wealth, besides the important towns of Chester and 
 York, and these Danish Norse people had their own customs. 
 There was no ' common law' of the land. They lived under 
 those customs which they had brought with them from their 
 own country. This difference we find recognized in the 
 various royal enactments. Thus, ' if a mass priest misdirects 
 the people about a festival or about a fast, let him pay 30.?. 
 among the English, and among the Danes 3| marks.' So 
 also the laws of WiUiam the Conqueror give the different 
 penalties for breaches of the king's peace by Mercian law, by 
 Dane law, and Wessex law. And in the laws of Henry I 
 we find the law of England divided into three — Wessex law, 
 Mercian law, Dane law^. And it is said that 'in many 
 things they differ, but in many things they agree.' 
 
 Royal jus- At this period there is not only no common law of the 
 
 tice not . ... 
 
 ordinary, land, but the king's justice is hard to get. Plaintiffs must 
 
 not come and trouble the king's court unless they have 
 
 suffered from failure of justice in the local courts ^- And 
 
 the king's justice, when it is obtained, is merely the justice of 
 
 the Witan, or great assembly of the nation, doing for the 
 
 whole nation what the inferior courts did for their districts, 
 
 viz. declaring the customs, and, as well as may be, finding 
 
 the facts. 
 
 TheKing's In one direction the military character of kingship left its 
 IfioLc^^ mark. Because the king's business was to be the successfiil 
 
 use CSSl"" ^^ 
 
 ties. , leader of his host in battle, he naturally required the 
 
 best men he could get for his lieutenants. The inevitable 
 result was that the old precedence of birth gave way to the 
 claims of capacity or office. WiUiam himself was known as 
 William the Bastard, and in English history several eminent 
 soldiers — of 'composition and fierce quality' — have been 
 
 > Cf. Stubbs, Sel. Ch., p. 106. " Ibid., pp. 71, 73. 
 
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BEFORE THE NORMANS 21 
 
 distinguished by the same name. It was the time when the 
 change is made from Caste to Contract, when men are not 
 so much bom great as achieve greatness. 
 
 We have noted the theory that the differentiation of Crime 
 from Tort is in a measure due to the miHtary exigencies of 
 the king; and it may be that in the fact that 'beneficia' 
 were granted on terms of military attendance, and that the 
 tenant who did not answer his lord's ban, and the ' gesith- 
 cund' man^ who neglected the 'fyrd,' both forfeited their 
 land, we find an explanation why the ' precarium ' of the 
 Continent is the 'fee' in England. 
 
 > Stubbs, Sel. Ch., p. 62. 
 
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CHAPTER IV 
 
 THE NORMAN CONQUEST 
 ENGLISH AND CONTINENTAL FEUDALISM 
 
 Legal There is no evidence for saying that with the Norman 
 
 meut*mi Conquest there was any ' reception ' of Prankish law. The 
 the Con- parent stock of the Anglo-Saxon and the Frankish customs 
 and iu w^ the same, but, owing to the different conditions which 
 England, obtained in England and on the Continent, the development 
 was different. England, tiU the fall of the great Wessex 
 house, enjoyed peace and progress, while the Continent had 
 been distracted by the anarchy which prevailed after the 
 death of Charles the Great. It has been suggested that 
 disturbed conditions, favourable to militarism and royal 
 rule, gave birth on the Continent to the idea of punishment 
 at a period when in this country our forefathers had pro- 
 gressed no further than the stage of bot, wer, and wite. On 
 the other hand, the weakness of Charlemagne's successors 
 produced the system of private jurisdictions, and the dis- 
 integrating of the administration of justice, which lasted till 
 the French Revolution. Yet again, it has been suggested 
 by Professor Maitland, that the adoption of the words ' sac ' 
 and 'soc' by the Normans when they came over here, 
 indicates that the feudalization of justice had progressed 
 fiirther in England than in Nonnandy, and that they used 
 these words because they had no words of their own which 
 represented the ideas. 
 
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' Sac ■ and 
 
 ■ soc. 
 
 THE NORMAN CONQUEST 23 
 
 On such a topic it is rash to express any certain opinion Private 
 in face of so great an authority. But it has been remarked J?"^*^*"" 
 that, although we commonly find grants of ' soc ' in the 
 Anglo-Saxon period, grants of ' sac "" and ' soc ' are not 
 known before the time of Edward the Confessor. Now the 
 difference may be material. For ' soc,' it is suggested, means 
 the profits of jurisdiction, those profits which would other- 
 wise go to the king, while ' sac " means the jurisdiction 
 itself^. The king might readily grant the profits of the 
 jinisdiction to a favourite vassal, while objecting to part 
 with the administration of justice, which in early society is 
 one of the great prerogatives and obligations of royalty. 
 But the Confessor granted both ' sac ' and ' soc ' with both 
 hands to all sorts of religious foundations, apparently with- 
 out the consent of the Witan, We find his grants to 
 the Archbishop of Canterbury, the Archbishop of York, 
 the Abbot of Malmesbury, the Abbey of Westminster, 
 St. Paul's Minster in London, St. Mary's in Abingdon, and 
 St. Edmundsbvu-y. He 'granted entire hundreds outright 
 into the hands of the church.' The Confessor was, appa- 
 rently, the first English king to whom such jurisdiction 
 appeared to be a part of his own private property. The 
 view was novel and unconstitutional, and it does not seem 
 to have survived the advent of the Normans, although, 
 probably, it was from his acquaintance with Frankish 
 customs that the Confessor had imbibed these high notions 
 of his property in justice and jurisdiction ^- 
 
 The iurisdiction of the manor court is explained by Suggested 
 '' origin of 
 
 ^ This is the view most strongly maintained by Mr. Henry Adams in 
 the essay contributed by him to Essays in Anglo-Saxon Law, pp. 40-44, 
 Boston, 1876. 'Saca' and ' socn/ he says, are the equivalent of 
 
 • placita et forisfacturae.' It should, however, be stated that the 
 general opinion seems to be that ' soc ' means jurisdiction, and that 
 
 * sac ' means profits ; and that Professor Maitland in Domesday Book and 
 Beyond, p. 84, inclines to the view that they are practically synonymous. 
 
 ' Essays in A.-S. Law, pp. 61, 59. 
 
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24 ENGLISH LEGAL INSTITUTIONS 
 
 theManor Mr. Adams in a very plausible way. That the manor courts 
 had some sort of jurisdiction at the time of the Conquest 
 seems to be generally admitted, though we can find no trace 
 of jurisdiction that has been expressly granted to the lord 
 sitting in his court of the manor. But that rights of ' soc ' 
 were occasionally given to the lord seems certain from 
 expressions which occur in the Anglo-Saxon documents ^. 
 
 The popular courts being in truth assemblies of neighbours 
 for mutual arbitration, it was apparently the almost inva- 
 riable practice to accept a compromise, which wa^ suggested 
 by the friends of the parties. Arbitration indeed, as we all 
 know, is, even now, sometimes preferred to law courts' justice 
 with its delays and its uncertainties ; and it possibly only 
 based on required the consent of the parties to invest the manorial 
 parties. court with the powers of the hundred court, and if both 
 parties were tenants of the same lord, it would be not un- 
 natural for them to agree to try the case before him. He 
 probably had a grant of ' soc,' no doubt he observed the 
 usual forms, and there would be a gain of convenience to the 
 litigants. Besides, the recognition of the private jurisdiction 
 of the churches would assist the recognition of private juris- 
 diction generally. Thus by royal grant, or by prescription, 
 grew up a new kind of local court. The result was that 
 after the Confessor's reign, as Mr. Adams puts it, ' the entire 
 judicial system of England was torn to pieces,' 'justice was 
 no longer a public trust but a private property.' The manor 
 court was always considered a private or proprietary hundred 
 court. It administered the law of the hundred, it observed 
 
 ^ In the laws of Knut ii. 73, § 1, we find : 'Let him forfeit his wer 
 to the king or to him to whom the king may have granted it.' Codex G 
 provides a variant reading of ' his socne ' for the word ' it.' So again, 
 the Codex reads on Knut ii. 63 : 'If any one take by force another's 
 property, let him return it and its value, and forfeit his wer to the 
 king or to whoever has his socn.' Again, on Knut ii. 37: ' Let him 
 forfeit his halsfang (10«.) to the king or to the manorial lord, who has 
 his soc' 
 
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THE NORMAN CONQUEST 25 
 
 the procedure of the hundred, and, like the hundred court, 
 it was controlled by the shire court. 
 
 It is wrong to suppose that, after the Conquest, a foreign Statutes 
 system of law was violently imposed on the inhabitants of thr^Con-"* 
 the conquered country, or, indeed, that William was a great queror. 
 law-maker. He was not, nor did he profess to be. He 
 expressly declared that all men were to enjoy the law of 
 King Edward, which they enjoyed before he invaded the 
 country. We have, in the late Bishop of Oxford's Select 
 Charters \ those Statutes of William the Conqueror in a MS. 
 attributed to the time of Henry I, which probably contained 
 all his legal enactments ; and an examination of them shows 
 that they were, if we may use the expression a little loosely, 
 rather measures of police and administration than the 
 making of new law. He says that Normans and English are 
 to be within his peace : that every one is to swear fealty 
 to him: that Frenchmen who have come with him from 
 Normandy are to be specially protected, and, if they are 
 killed, there is to be a fine on the hundred in which they 
 are found ^. Every freeman is to have pledges bound to 
 produce him if necessary : every one is to enjoy the laws of 
 King Edward, even those Frenchmen who lived in England 
 in the time of King Edward. If a Frenchman appeals an 
 Englishman of certain grave offences, the Englishman may 
 defend himself by the ordeal of iron or by battle, and if he 
 is feeble he may find a champion. If an Englishman appeals 
 a Frenchman, and does not wish to prove his case by ordeal 
 or battle, the Frenchman can purge himself by unbroken 
 oath. Capital punishment is abolished *. No one is to be, 
 
 ' Stubbs, Sel. Oh., pp. 83-85. y-^ 
 
 " By tbe time of Henry I every dead man is presmned to be French, 
 
 unless his Englishry is proved. A very neat doctriae for Revenue 
 
 purposes, as the records show, for if a strangerig-fbund dead, who can 
 
 prove that he is English ? ^' 
 
 ' This was not so humanitarian as it looks. The king's courts issued 
 
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26 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 The New 
 Feudal- 
 ism. 
 
 The Con- 
 tinental 
 fief. 
 
 sold out of the country, and the sales of live beasts must be 
 attended by certain formalities. 
 
 One great and far-reaching change was introduced by 
 William. He separated the lay and the spiritual jurisdic- 
 tions '. He prohibited bishops and archdeacons from holding 
 the pleas of ecclesiastical discipline in the hundred courts ; 
 such pleas must be judged not according to the hundred, 
 but according to the canons and the episcopal laws. He 
 forbad any sheriff, or royal minister, or any layman, to 
 meddle with ecclesiastical matters. No canon was to be 
 enacted, and none of his barons were to be excommunicated 
 without his leave ^. 
 
 The Norman Conquest is an important stage in our his- 
 tory, for it was the moment for receiving a new political 
 idea, and for introducing new methods of administration. 
 The new political idea was feudalism, and it was feudalism 
 with the fangs drawn. William, it cannot be doubted, was 
 a man of high political capacity. He was king in England, 
 while in Normandy he was a great feudatory. He knew the 
 feudal system from both sides, its strength and its weakness. 
 
 The fief, historically regarded, was a fragment of the 
 empire of Charles the Great, which, in the time of his feeble 
 successors, broke off and set up for itself. It was in its 
 essence a military group, in which the lord had the right to 
 summon by his 'ban' his immediate vassals to the wars. 
 But, according to the notion prevalent on the Continent, 
 although he was entitled to summon his own vassals, he 
 could not summon the vassals of his vassal. To use the 
 Janguage of the period, although he had the ' ban,' he had 
 noE^he 'arriere ban.' Thus the Carlovingian sovereigns 
 were onfy-^ble to call out their great vassals, the lords of 
 
 in the course of s year many * human documents ' blinded and muti- 
 lated to proclaim the royaJjustice. 
 
 1 Stubbs, Sel. Ch., p. 85. ,. ^ Ibid., p. 82. 
 
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THE NORMAN CONQUEST 27 
 
 the great fiefs, that had been granted on condition of 
 military service. At the same time the lord, although a 
 military leader, presided in his court, in which was admin- 
 istered the law of the fief. The power of these great feuda- 
 tories became so formidable that the successors of Charles 
 the Great failed to keep them in hand, and the weakness of 
 the system, in which the empire consisted of a great number 
 of what were really smaller independent kingdoms, was 
 exposed when the Huns swept down and attacked them in 
 detail. Self-preservation made it necessary to revert to the 
 monarchical idea. It was almost inevitable that when firmly 
 settled the new kings should attempt to take in hand justice 
 and police. These great leaders were also great feudatories. 
 They had great estates of their own, and on their own 
 demesnes they discharged judicial as well as military func- 
 tions ; any disputes arising on the demesne must be settled 
 and jijdgement must be given, in the court of the fief, where 
 the vassals are ' pares curiae.' The lord, it is true, presides, 
 but the judges are the body of his own tenants. He 
 naturally endeavours to apply the theory of the Fief to 
 the Kingdom. The effort was a failure in Germany, and it 
 made very little headway in France, but in England it was 
 marked by entire success. The conditions were indeed 
 favourable. England was an entire fief, obtained by con- 
 quest, and the advantages of its geographical position could 
 hardly be siurpassed. 
 
 William, when he exacted the oath of fealty from all The 
 'land-owning men of property' at Sarum\ freed himself pjef. 
 from the difiiculty under which the Frankish sovereigns 
 laboured. By virtue of that oath he had the arriere ban, 
 and he could call upon all the freemen in this country, of 
 whatever lord they were the men, to come and serve him on 
 his summons. But that was not all. One^'thing is very 
 
 > Stubbs, Sel. Ch., p. 82. 
 
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28 ENGLISH LEGAL LNSTITUTIONS 
 
 irksome to the subject, and that is a liability to military- 
 service, which may be enforced at uncertain times at the 
 command of the king. One thing the State is always ready 
 to receive, to wit money. It is an arrangement agreeable to 
 both parties that the State, in consideration of receiving 
 cash, shall allow the subject to rid himself of a very un- 
 pleasant duty, and this was perceived as long ago as the 
 time of Pericles. So when Ralph Flambard, the Justiciar, 
 took the ten shillings \ the ' viaticum ' which the shires had 
 provided, from the twenty thousand men who had come 
 down to Hastings to serve the king abroad, and then excused 
 them from further attendance, the time was foreshadowed 
 when, under the name of ' scutage V it became the ordinary 
 rule ^;o redeem personal service in the army by the payment 
 of money. 
 
 WiUiam very soon saw that he might be met with the 
 same difficulties which had so much troubled his Frankish 
 colleagues, for he was bound to reward the successful soldiers, 
 who had helped to found his kingdom in England, and yet 
 if he should make great grants of territory the donees 
 would almost certainly set up pretensions fatal to the con- 
 solidation of the royal power, and William had no time to 
 spare for reducing his own creatures to subjection. He 
 combined generosity and prudence, he gave his followers 
 estates, but they did not lie all together, but were scattered 
 in different parts of the country. 
 
 The Frankish kings, in order to diffuse the king's law, 
 had conferred portions of the royal jurisdiction on their 
 great feudatories, who had taken advantage of the weakness 
 -~-af the central government to make a jurisdiction, which was 
 (Originally royal, private and personal. William avoided 
 this danger by creating no new jurisdictions, but using the 
 existing machinery. The hundred court, the manor court, 
 
 > Stubbs, Sel. Oh., p. 153. = Ibid., p. 129. 
 
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THE NORMAN CONQUEST 29 
 
 and the shire court, remained the only ordinary courts in 
 his reign, and the king took notice that none should have 
 more 'sac' and 'soc' than had been enjoyed in the time of 
 his predecessors. 
 
 But it is interesting to notice that, although the sagacity 
 of William relieved him from trouble on the score of the 
 military summons, a precisely analogous difficulty was raised 
 by the barons under his successors with regard to the judicial 
 summons. The vassal's vassal must, they said, answer in 
 the court of his lord, and not in that of his over-lord ^. 
 
 The eventual failure of this claim is an incident in the 
 victorious advance of the Royal Justice. 
 
 ^ Mag. Ch., § 34. Stubbs, Sel. Ch., 301, 
 
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CHAPTER V 
 
 THE KING AND PROCEDURE: THE INQUEST 
 
 Early Though the courts remained unaltered, a great step was 
 
 ^'j' taken in the improvement of the administration of justice 
 
 cedure. -^ 
 
 and procedure. The Anglo-Saxon forms of proof were ordeal, 
 compurgation, witnesses, and charters: judicial combat cannot 
 Battle. be discerned before the Conquest. Professor Maitland con- 
 siders that combat existed, but was extra-judicial — an opinion 
 which Mr. Bigelow seems to share, and doubtless we are safe 
 in considering combat as ' regularized ' blood-feud procedure. 
 The Normans, however, were quite familiar with the duel as 
 a judicial method of proof, and introduced it into England, 
 although, as we have seen, William did not force this pro- 
 Ordeal, cedure on his new English subjects. Ordeal was frequently 
 used in criminal cases down to 1184i \ But in Henry IPs 
 time there is no record of it being used in civil cases, and 
 it did not in any form survive the condemnation of the 
 Witnesses Lateran Council in 1215. Witnesses were used in Anglo- 
 purga- Saxon times for party proof, and must be distinguished from 
 tors. compurgators. The compurgators swore to the credibility of 
 
 the party, not to the facts ; the witnesses spoke to facts ' de 
 visu et audito,' and employed a set formula. The witness 
 "^-v^ appears and thus makes oath : — ' In the name of Almighty 
 ^od as I here for N. in true witness stand, unbidden and 
 unbeiught, so I with my eyes oversaw, and with my ears 
 overhead, .Aat which I with him say.' The oath of the 
 
 » S-eeJ"!. Ang.-Nor., pp. 231, 233. 
 
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THE KING AND PROCEDURE 31 
 
 compurgator on the other hand was, ' By the Lord the oath 
 is clean and unperjured which N. has sworn.'' 
 
 The witness, although he testified to facts, only swore to 
 the assertion of his chief, and unless produced by the party, 
 could not give evidence, however much he knew of the case, 
 and when produced was confined to the formula prescribed by 
 the interlocutory judgement by which the burden of proof 
 and the subject of proof were declared. For in the Germanic 
 courts judgement came first and evidence after \ Charters Charters, 
 were always used if they existed, and excluded all other 
 evidence except that of witnesses^, though they might be 
 supported by other testimony, especially if they were in 
 a dilapidated condition ^. Compurgation was permitted up 
 to 1166, the date of the Assize of Clarendon, to disprove 
 accusations of crime *. After that date, if an accusation was 
 presented by inquest, the accused man had to clear himself 
 by ordeal,, All these methods, however, were fated to dis- 
 appear before an institution which was introduced by the 
 Norman king. That institution was the ' inquest.' 
 
 The Inquest was a royal and privileged procedure un- Recogni- 
 known to, and not exercised by, the courts of the clan or the inquest, 
 fief. It was not purely judicial in its nature, but it was 
 useful in all sorts of public business and was much employed 
 by Charlemagne and his successors to discover the property 
 of the fiscus *, They sent Commissioners, ' Missi,' to inquire 
 on the spot, and the neighbours were summoned and com- 
 pelled to swear, whether they liked it or not, whether or 
 
 ' Cf. the formulary procedure at Rome. 
 
 ^ Abbot Athellelm v. Officers of the King, PI. Ang.-Nor., p. 30. 
 
 ' Cf. PI. Ang.-Nor. 27, ' per cartas suas et per testes suos,' and 
 ibid. 2, ' iusto dei iudicio ac scriptis evidentissimis detritis et penitus/ 
 amiihilatis.' ^-^ 
 
 * Vide the curious case of Matilda, PI. Ang.-Nor., p. 79. ./^ 
 
 " The Capitulary of Louis le Debonnaire says that all fisca^I'inquiries 
 are to be made in tWs way {Anc. Lois Fran<;., i. 69). 
 
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m ENGLISH LEGAL INSTITUTIONS 
 
 no there was any Treasury property in their part of the 
 world. 
 
 The Inquest, due seemingly to the invention stimulated 
 by the royal fiscal necessities, was soon perceived to be an 
 admirable weapon for the discovery of truth and fact of all 
 sorts. Local knowledge was made available to inform the 
 royal mind at a time when the Government was imorganized 
 and communication diflBcult. Indeed, when the Conqueror 
 set about compiling that great revenue book, which we know 
 as Domesday, his business capacity selected the Inquest as 
 the true method for ascertaining what it was essential for 
 him to know ^. 
 
 So useful a procedure was not likely to be long confined to 
 one sort of inquiry. 
 
 The Frankish kings used the Inquest in their law-suits in 
 preference to other methods of trial. They preferred the 
 verdict of the neighbourhood to battle or ordeal. A pro- 
 cedure which they found so trustworthy themselves, they 
 were ready to grant as a favour to others, and, it is hardly 
 necessary to say, granted it in return for payment. 
 
 Battle in England was exotic and unpopular ; the ordeal 
 was, for reasons good or bad, not trusted ; and the procedure 
 by oath-helpers gradually came to be regarded as unsuitable 
 to the serious administration of justice. 
 
 In England we find the king employing procediure of the 
 Inquest in his own business. It is used for the ascertaining 
 of royal rights, and for the discovery of royal property. The 
 king can direct it to be used on any occasion he chooses, and 
 he allows it to favoured churches^. It immediately comes 
 
 ' See the Title of the Domesday Inquest for Ely (Stuhhs, Sel. Gh. , 86), 
 ' Not even an ox nor a cow nor a swine was there left which was not 
 set dowaijj Ijis records,' says a Saxon chronicler. 
 
 * E.g. to thfe^bbot of St. Augustine, PI. Angr.-Nor., pp. 33, 66, to 
 
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THE KING AND PROCEDURE 33 
 
 into use in litigation, although the occasions when it is 
 employed are at first exceptional. 
 
 As it is good to see the actual words of legal documents, 
 a writ ordering an Inquest is appended, which, with many 
 others of the greatest interest, has been printed by Mr. Bige- 
 low. The Abbot of St. Augustine had complained that his 
 ship had been taken from him. 
 
 'Willelmus filius regis WiUelmo vicecomiti de Kent 
 salutem. Praecipio quod praecipias Hamoni, filio Vitalis 
 et probis vicinis de Sandwich, quos Hamo nominavit ut 
 dicant veritatem de nave abbatis de Sancto Augustino, 
 et si navis ilia perrexit per mare die qua rex novissime 
 mare transivit, tunc praecipio ut modo pergat quousque 
 rex in Angliam veniat et interim resaisiatur inde abbas 
 praedictus. Teste episcopo Sarum et cancellario apud 
 Wodstoke.' 
 
 The ' vicini ' having found in favovu' of the Abbot, a writ 
 comes down from Windsor ordering the sheriff to put the 
 Abbot back in seisin of his ship, ' sicut recognitum fuit per 
 probos homines comitatus.' 
 
 The Inquest could also be used in combination with the 
 judicial session of the shire. The following cases may be 
 compared. 
 
 In the case of Archbishop Ltmfranc v. Bishop Odo \ in 
 1071, there was a writ and an action for the restitution of 
 lands, in which the plaintiff recovered many manors and 
 franchises, and elucidated many ' consuetudines.'' The case 
 was heard before the shire at Penenden Heath, there being 
 summoned all the French, and especially the English, who 
 were skilled in the old laws and customs. The Bishop of 
 Coutances presided as justiciar, and the shire gave judge- 
 ment. Here no inquisition is mentioned. 
 
 Bishop Robert, p. 139, to the Church at Ely, p. 24 ; and cf. P. and 
 M. i. 122. * PI. Ang.-Nor., p. 4. 
 
 D 
 
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34 ENGLISH LEGAL INSTITUTIONS 
 
 In the case of Bishop Gvndulf v. Pkhot \ the judgement 
 of the shire is given first, and the presiding officer, the 
 Bishop of Bayeux, being dissatisfied, it is directed to choose 
 twelve to confirm the judgement on oath. 
 
 In the case of the Monks of St. Stephen v. The Kvn^s 
 Tencmts^, an inquisition of sixteen swear, and then seven 
 hundreds presided over by the sheriff give judgement accord- 
 ingly. 
 
 In the case of the Chwrch of Ely ^, a Court is held of 
 three counties, and an Inquest of Englishmen who know the 
 facts is directed. 
 
 The Inquest was a royal procedure, for none but the 
 Crown could compel witnesses to take an oath (see 52 
 H. iii. c. 22) ; it was the finding of facts by impartial men, 
 generally, if not always *, on oath, and examined by an 
 officer of the law acting under the king's writ. It was 
 required to be unanimous, and if it could not agree after 
 being affiirced, it apparently failed. 
 
 » PI. Ang.-Nor.j p. 34. " Ibid., p. 120. » Ibid., p. 16. 
 
 * But see the case of Bishop Robert v. Lord of Stow, PL Ang.-Nor., 
 p. 139. The royal writ orders an inquest * per probos homines de 
 comitatu' as to boundaries, ' et si bene eis non credideritis sacramento 
 coniirment quod dixerint.' 
 
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CHAPTER VI 
 
 THE NORMAN COURTS OF JUSTICE. ROYAL 
 AND LOCAL 
 
 After the Norman Conquest we find the following courts, 
 leaving out of account the ecclesiastical courts: the Great 
 Council or the Witenagemot, the King's Court, the Ex- 
 chequer, the County Court, the Bm-ghmote, the Hundred 
 Court, the Manorial Court, the Forest Court. Some con- 
 ftision arises from the fact that in our sources the term 
 Curia Regis is used of the Great Council, the King's Court, 
 and apparently of the County Court on certain occasions. 
 
 The expression Curia Regis means, when used in its The Curia 
 narrowest sense, those great assemblies of the nation, on the "■^^^ 
 three great feasts of the Church — ^Easter, Pentecost, and 
 Christmas — ' when the king wore his crown ^' It also meant 
 an assembly of all the king's great men * congregatis in aula 
 regali primoribus regni V It was also applied to a meeting 
 
 ^ Stubbs, Sel. Oh., p. 81. 
 
 * The King v. Earl Odo, PI. Ang.-Nor. 291. This was the re- 
 markable case in which William accused his half-brother Odo, 
 Bishop of Bayeux and Earl of Kent, whom he had left as Justiciar 
 of England during his own absence on the Continent, of treason 
 and abuse of office. The king, addressing the assembly, concludes 
 thus : ' Et frater mens cut totius regni tutelam commendavi violen- 
 ter opes diripuit, crudeliter pauperes oppressit, frivola spe milites 
 mihi surripuit, totumque regnum iniustis exactionibus concutiens ex- 
 agitavit : Quid inde agendum sit caute considerate.' The assembly, 
 however, was a little shy of offering an opinion against so great a per- 
 
 d2 
 
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36 ENGLISH LEGAL INSTITUTIONS 
 
 for business of the king's household or personal attendants, 
 and to the county court, when either the itinerant justice 
 went down to it or sometimes when the sheriff presided, in 
 the king's name, on the king's business ^. 
 
 The King's Court, in the sense in which the expression 
 is most usually employed, was a smaller body of great men 
 who usually smrounded the king, and who belonged, of 
 course, to the Great Council. It represented the king, and 
 if the king was not there in person he was there in theory ^. 
 
 The Ex- The first department which appears in the Curia Regis is 
 
 chequer, ^j^g Exchequer which, under the first two Norman kings, 
 is called ' the Treasury " or ' Thesaurus ' and which was con- 
 cerned with the due collection of the royal revenue. The 
 source of our information on this point is the Dialogus de 
 Scaccario ^ From it we find that till Henry I's reign pay- 
 ments were made to the Treasury not in gold or silver, but 
 in kind : ' non auri vel argenti pondera sed" sola victualia 
 solvebantur.' But for the king's foreign wars money was 
 needed, the system lent itself to exaction, and seasons were 
 often bad*. Henry accordingly fixed a money payment in 
 commutation, which was to be paid by the estates liable, 
 
 son : and noticing this the ' magnanimus rex ait, Hunc virum, qui 
 terrain turhat comprehendite,' and when no one dared to move, the 
 king himself arrested him, ' rex ipse primus apprehendit eum.' And 
 when the bishop cried out ' clericus sum, et minister Domini,' and that 
 as a bishop he could not be condemned without a judgement of the 
 pope, the king, ' providus rex,' shrewdly answered that he was con- 
 demning not the prelate, but his own earl, whom he had placed over 
 his kingdom : and sent him to prison where he stayed as long as 
 William lived. 
 
 ^ See P. and M., vol. i. p. 132; and Bigelow, Hist, of Proced., 
 pp. 21 sq. 
 
 ^ Case of the Abbot of Leicester, Abb. Plac. 2 John, 32. 
 
 ' See Stubbs, Sel. Ch., pp. 168 sqq. 
 
 * When the king was travelling the inhabitants used to meet 
 him, offering their ploughshares, ' in signum delicientis agriculturae.' 
 Stubbs, Sel. Ch., pp. 193-4. 
 
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THE NORMAN COURTS OF JUSTICE 37 
 
 and the sheriff of the county was to account ' ad Scaccarium.' 
 The barons sat one side of the chequered table, the sheriff 
 on the other, and thus was played the game of exchequer 
 chess described in Mr. Herbert Hall's book \ The justiciar 
 presided virtute officii, the chancellor, who kept the king's 
 seal, being also present. The table was covered with a cloth 
 ' which is of a black colour rowed with strekes distant about 
 a foot or span.' On these spaces were placed the counters, 
 with marks denoting their value. As no doubt the same 
 great men sat in the Exchequer that sat in the King's Court, 
 it gradually took hold of judicial work. In Henry I's time 
 we find it taking common pleas. 
 
 The action of the men of Periton v. the Abbot Faritius% 
 about 1109, which was for the recovery of a manor, was 
 tried in the Exchequer before three bishops and many 
 barons. The Queen's writ uses the words ' in curia domini 
 mei et mea apud Wintoniam in thesauro.'' It is suggested 
 by Mr. Bigelow ^ that the reason for trying a case of this 
 sort in the Exchequer was that in it was kept Domesday 
 Booh or the Liber de Thesauro, which in this case was 
 referred to on the question of title. In the case of the 
 Abbot of Westminster v. Certain Men* in the same reign, 
 the ^vrit to the Bishop of London directs him to do right to 
 the Abbot of Westminster for a trespass 'et nisi feceris 
 barones mei de Scaccario faciant fieri ne audiam clamorem 
 inde pro penvuia recti.' 
 
 That it was a matter of favovu: or at any rate a privilege 
 to get one's case tried before the Exchequer is probable from 
 an entry of the eighteenth year of Henry II, in which it 
 is said that Robert the son of Emisus owes five marks for 
 having his plea, which is between him and Hugo Malebisse, 
 
 * Antiquities of the Excheqtwr, 1891. ' PI. Ang.-Nor., p. 99. 
 
 = HiM. ofProced., 127. * PI. Ang.-Nor., p. 127. 
 
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38 ENGLISH LEGAL INSTITUTIONS 
 
 before the Justice ad Scaccarium ^. A successful plaintiff in 
 the Exchequer was sometimes permitted to use the summary 
 process proper for collecting crown debts. It has been sug- 
 gested that, as there was as yet no distinct court of common 
 pleas, the provision in Magna Charta that the common 
 pleas should no longer follow the king was aimed at de- 
 priving the Exchequer of the litigious work which they had 
 usurped. If that was the object it was hardly attained, for 
 Edward I, in the Statute of Ruddlan, 10 Edward I, pro- 
 hibited the Exchequer from entertaining common pleas on 
 the ground that this hindered them from attending to their 
 proper business, which was the care of the King's revenue. 
 'But for so much as certain pleas were heretofore holden 
 in the Exchequer whereby as well our Pleas as the causes 
 of our People are unduly prorogued and letted, we will and 
 ordain that no plea shall be holden or pleaded in the Exchequer 
 aforesaid unless it do specially concern us and our ministers 
 aforesaid.' It is just as probable that as the Exchequer sat 
 in London, at least diu-ing its two financial sessions if not 
 permanently, litigants preferred to go there rather than 
 ' follow the comi; ' on progress. England was divided into 
 counties, counties into hundreds, in which there were ' vills ' 
 or townships. The County and the Hundred had courts. 
 
 The The County Court was of Anglo-Saxon origin, and con- 
 
 Sheriff's*" tinned under the Norman Kings. In Saxon times it met 
 Court. twice a year '. The rule is the same in the time of Henry I ^. 
 But the second reissue of Magna Charta, § 42, a.d. 1217, 
 says that the county court is not to be held oflener than 
 once a month *. There is high authority ^ for the view that 
 there was a combination of Anglo-Saxon and new Norman 
 practice, and that the county court was in Henry Ill's time 
 
 ' PI. Ang.-Nor., p. 271. So also case of Robert de Hasting, 
 14 Hen. II. Ibid., p. 269. 
 » Laws of Edgar, iii. 5. » Stubbs, Sel. Ch., p. 105. 
 
 * Ibid., p. 346. ' P. and M., i. 526. 
 
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THE NORMAN COURTS OF JUSTICE S9 
 
 held twelve times a year, but that whereas two meetings 
 were of greater importance, most if not all freeholders owing 
 attendance at them, the others were of less account. The 
 county also assembled to meet the justices in eyre, who came 
 once every seven years, and then, it is conjectured, every 
 one was expected to attend ^. But this is largely specula- 
 tion. The king also claimed the power to summon the local 
 courts at his pleasure^. As attending courts, or making 
 suit (facere sectam) was a burden, we can only surmise that 
 few attended that were not bound to do so. And if it is 
 asked who were bound, the answer is that the land was bound 
 to provide suitors, so much land a suitor, but that between 
 the lord and his freehold tenant, it was a matter of private 
 arrangement or of tenure who should do suit for the whole. 
 It is beheved that perhaps in virtue of franchises of exemp- 
 tion the suitors were divided into two classes, the one to go 
 every month, the other only twice a year ^. In the ' laws of 
 Henry I,' at a time when the meetings were twice a year, it 
 is said ' intersint episcopi comites vicedomini vicarii centenarii 
 aldermanni, praefecti praepositi barones vavasores tungrevii 
 et ceteri terrarum domini *.' Also there came the priest, the 
 reeve, and the four best men of the ' viU,' to acquit the vill of 
 its suit if the local baron and his steward could not attend ®. 
 The reeve and the four men also came when they had crimes 
 to present. 
 
 When the itinerant justices came they sat in the County 
 Comi; : they could sit nowhere else, as the county was their 
 sphere of jurisdiction. To meet them the shire assembled 
 with its fullest representation. The private jurisdictions 
 and the franchises of exemption counted for nothing, and in 
 
 ^ P. and M., i. 631. 
 
 ^ Cf. Henry's writ to Bishop Samson. Stubbs, Set. Ch., p. 104. 
 
 s P. and M., i. 626. 
 
 * This last phrase may perhaps mean all freeholders. 
 
 « Stubbs, Sel. Ch., p. 106. Leges Hen. I. 7, §§ 2, 3, 7- 
 
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40 ENGLISH LEGAL INSTITUTIONS 
 
 addition to the persons above named, the chartered boroughs 
 which owed no suit to the County Coiu± sent their twelve 
 legal men \ 
 
 The court had an original jurisdiction in personal actions, 
 real actions came to it when the feudal courts made default 
 in justice ; it is disputed whether an appeal lay to it from 
 the Hundred Court on similar ground^. It also had an 
 original jurisdiction where the vassals of two lords were 
 litigating ' de divisione terrarum ^' It was only in that court 
 that a man could be ' exacted,' and that outlawry could take 
 place. The sheriff was the president, but the suitors make 
 the judgements, which the sheriff announces. 
 
 If a case was of great importance several shires could be 
 summoned *. 
 
 rhe The Burghmote was a County Court established in a 
 
 note " borough which had municipal privileges of its own. 
 
 [Tie The Hundred or Wapentake Court met originally once 
 
 W.'*^ a month «, but a Royal Ordinance of 1234 « declares that it 
 is to meet but once in three weeks instead of every fortnight 
 as heretofore. The practice had at some period changed. 
 Here again we are in doubt as to who attended these numer- 
 ous sittings. We must be content to say that those free- 
 holders of the hundred came who were bound to come and 
 do suit. The number might be very small, sometimes as 
 low as twelve ' The hundred tried personal actions ' causae 
 
 ^ In 1259, by the further Provisions of Oxford, the bishops and 
 barons were excused attendance at the county court. But so imper- 
 ceptible had been the change from local to royal justice that the great 
 men of the county thought they had a right to sit on the bench at the 
 Assizes. This was forbidden by 20 Ric. II, c. 3. 
 
 ^ Cf. Bigelow, ifi*<. ofProced. in Eng. 136, and P. and M. i. 544. 
 
 ' Stubbs, Sel. Gh., p. 104. 
 
 * Bishop Odo V. Walter of Evesham. PI. Ang.-Nor., p. 20. 
 
 » Edgar, i. 1. « Stat. i. 118. ' See P. and M., i. 544. 
 
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THE NORMAN COURTS OF JUSTICE 41 
 
 singulorum ^j' and appeals 'de pace regis infracta,' prob- 
 ably of a small sort ^. It was presided over by the bailiff. 
 
 Twice, however, in the year the sheriff held a full Hundred The 
 Court, when, according to the Laws of Henry I, all free men ^urn* ^ 
 are to be present® to ascertain inter cetera if the tithings or 
 ' dec£iniae ' are ftill, in other words, to hold a ' view of frank- 
 pledge.' In practice it seems to have been enough if the 
 head men were present. The sheriff at the same time made 
 inquiries as to crimes committed since his last visit, and 
 each vill in the hvmdred appeared by its reeve and four men, 
 and presentments were made * in answer to the sheriff's set 
 questions, known as the ' articles of the view,' of a character 
 similar to the 'articles of the eyre.' The hundred had to pro- 
 vide a jury of twelve at the least who confirmed or rejected 
 the presentments. The smaller offences were then summarily 
 dealt with by the sheriff, by fines, which were ' affeered ' by 
 two of the suitors. The graver crimes were kept for the 
 king's justices, the sheriff arresting the accused persons. 
 Meetings of this character were at a later date known as the 
 'Sheriffs Turn.' 
 
 The Manorial Court was of the same rank as the hundred The Court 
 courts. In it, in virtue of a jurisdiction inherent in the jjanor. 
 feudal relationship of a lord and his tenants, were triable 
 personal actions at least of the value of 40*., debt, detinue, 
 trespass and covenant, slander and libel, and actions affect- 
 ing land of the manor ^. It had frequently a criminal 
 jurisdiction, but the extent of its jurisdiction varied, 
 and depended on the royal charter which conferred the 
 jurisdiction ; or, in the absence of a charter, on the long- 
 established practice of the court. In some cases these 
 
 ^ Stubhs, Set. Oh., p. 105. Leges Hen. I. 7, § 8. 
 = 1 Bot. Cur. Beg. 206, 207. 
 ' Stubbs, Sel. Oh., p. 105. Leges Hen. I. 8, § 1. 
 * Cf. Assize of Clarendon. Stubbs, Sel. Oh., p. 143. 
 « See P. and M., i. 674. 
 
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ENGLISH LEGAL INSTITUTIONS 
 
 The Writ 
 of Quo 
 War- 
 ranto. 
 
 The 
 
 Forest 
 
 Courts. 
 
 baronial franchises were so extensive as to found a claim 
 for excluding even the king's justiciar^. 
 
 It was not till the reign of Edward I that the jurisdiction 
 which remained in the manorial courts was seriously ques- 
 tioned. By means of the statute of Quo Warranto the Crown 
 called on every one to show title for liberties that they 
 claimed ; and the Crown lawyers distinguished between liber- 
 tates and regalia. - These latter, such as view of frankpledge, 
 could only be held by royal grant ; the others, such as juris- 
 diction over manorial offences, e. g. ploughing badly, flowed 
 from tenure. In the face of violent opposition Edward 
 compromised in 1290, and agreed that continuous exercise 
 from before the coronation of Richard I should be a good 
 answer. But his action stopped further encroachments. 
 The writ was as follows ^ : 
 
 ' Rex vicecomiti salutem. Summone per bonos sum- 
 monitores talem quod sit coram nobis apud talem locum 
 in proximo adventu nostro in comitatu praedicto vel 
 coram iustitiariis nostris ad proximam assisam cum in 
 partes illas venerint ostensurus quo warranto tenet visum 
 franciplegii in manerio suo de N. et habeas ibi hoc breve.' 
 
 There remain the Forest Courts. The woodlands, with 
 extensive additions, had been enclosed by the Conqueror and 
 his sons, and rules for the protection of them and the beasts 
 
 ^ We find in the rolls of the King's Bench in the time of Richard I, 
 in a case where Agnes de Bascoville demands the castle of Brede- 
 wardine, in her right and inheritance of which Rohert de Wastre 
 deprives her, the Sheriif of Hereford is ordered to take the castle into 
 his hands. He says it is out of his hailiwick, and he dare not meddle, 
 and ' William de Braosa says that neither king, justice, nor sheriff, 
 ought to lay their hands on his franchise. The case is adjourned sine 
 die till the pleasure of our lord the king is known hereon ' (Palg., Rot 
 Cur. Beg., i. 426). 
 
 ^ At the present day the procedure is hy motion for an order nisi, 
 calling on the defendant to show cause why an information should not 
 he exhihited against him to show hy what authority he exercises the 
 particular office or franchise. 
 
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THE NORMAN COURTS OF JUSTICE 43 
 
 of the forest, ' cruel to man and beast \' had been made, 
 notably by Henry I, No records tell us the details of the 
 forest jurisdiction at its commencement, but the whole 
 matter lay outside the ordinary law, and the justice admin- 
 istered was summary and, if we may draw an inference from 
 its unpopularity, harsh and without much redress. Its aim 
 was the preservation of vert and venison. The Selden Society 
 has recently published a volume of Pleas of the Forest^, 
 beginning in the tenth year of John, to which the learned 
 editor has written a full and admirable preface, showing, 
 amongst other things, what the forest system was when it 
 became settled. In 1238 there were two justices of the 
 forest, one for the north of the Trent, one for the south. 
 Hitherto there had usually been one official, the capitalis 
 forestarius ^. Their duties were mainly ministerial, their 
 chief function being to decide on the release on bail of 
 offenders against the forest ru],es. Such persons could only 
 be released by them or by the king. Under them came the 
 wardens of the various forests, who were the executive officers 
 of the king, and who were the recipients of his writs ; there 
 were also verderers, knights or men of substance elected in 
 the county court and responsible to the king, their duty 
 being to attend the forest courts ; then there were the 
 
 * Stubbs, Sel. Ch., p. 156. 
 
 ^ Select Pleas of the Forest, ed. J. F. Turner. 
 
 ' See the case of Abbott Walter v. Alan de Neville ' qui praeerat 
 domini Regis forestariis.' Alan was a bad man vexing all England 
 'innumeris et insolitis quaestionibus. Nee deum nee homines vere- 
 batur/ and among other iniquities he had forcibly collected monies on 
 the lands of Battel Abbey for clearings (' vi exegit'). The money had 
 been paid into the exchequer, but was recovered by the Abbot who 
 produced charters to the court. Alan does not seem to have been dis- 
 turbed, and the office remained in his family. The monkish chronicler 
 says that, on the death of this valuable servant, when a certain monas- 
 tery sought a portion of his goods, the king said ' I shall have his 
 wealth, but you may have his carcass, and the, devil may have his soul.' 
 Bigelow, Hist. ofProced., p. 146 n. 
 
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U ENGLISH LEGAL INSTITUTIONS 
 
 foresters (who were gamekeepers, and who paid for their 
 offices and repaid themselves by extortion under the name 
 of customary payments), the regarders and the agisters. 
 
 In the forest ' attachment ' courts were held. If the forest 
 contained more than one bailiwick, each had its court and 
 four verderers, and the coiu-t met as a rule every forty-two 
 days. These courts were of little jurisdiction : they could 
 not inquire into cases of venison but only into minor offences 
 against the vert, for which the offenders were duly amerced. 
 If there was a serious trespass to the vert, the offender, 
 if an inhabitant of the forest, was put under pledge to 
 appear at the first eyre, if a stranger, he went to prison, 
 whence he could only be bailed by ^a justice, or by the king. 
 
 When a trespass had been committed to the venison, e, g. 
 when a beast of the forest was found dead or wounded, there 
 were special forest inquisitions of the four neighbouring town- 
 ships before the verderers and foresters. The accused was 
 either sent to prison or attached to appear before the justices 
 in eyre, the four towns and suspected persons being attached 
 also. 
 
 After 1306 an institution recognized by statute and known 
 as a general inquisition or a ' swanimote ' becomes settled. 
 This was held before the justice of the forest or his deputy, 
 and was made by the forest officers and a body of jurors in 
 respect of such offences as had recently been committed. 
 These inquisitions were held at no fixed intervals, and 
 probably at the pleasure of the justice. 
 
 The Forest Eyre was held under letters patent appointing 
 justices to hear and determine pleas of the forest in par- 
 ticular counties. To it were summoned all, great and small, 
 having land in the forest, the reeve and the four men, the 
 verderers and foresters, with all the attachments. In the 
 time of Henry III seven years seems to have been the proper 
 interval, but it gradually became longer. Its business had 
 
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THE NORMAN COURTS OF JUSTICE 45 
 
 a strongly financial aspect, being mainly concerned with 
 amercements levied for forest offences, and for wrong or 
 insufficient presentments. If offenders failed to appear they 
 were ' exacted ' and outlawed in the county court. 
 
 The royal justice was still mostly extraordinary, and by Royal 
 that is meant that the king's court was not to be approached gyfi'*'^ 
 except by way of appeal and in the last resort. This had usually 
 been so in Anglo-Saxon times, for we find in the ordinances ordinary 
 of Edgar ' let no one apply to the king in any suit unless 
 he at home may not be worthy of law or cannot obtain law : 
 if the law be too heavy let him seek a mitigation of it from 
 the king^.' So again in the Secular dooms of Canute, we 
 find ' and let no one apply to the king unless he may not be 
 entitled to any justice within his hundred^,' or in the Latin 
 form in which it appears in the laws of the Conqueror, 
 chap, xliii, 'Nemo querelam ad regem deferat nisi ei ius 
 defecerit in hundredo vel in comitatu.' 
 
 Although the king's court was, for ordinary people, a but some- 
 court of last resort, certain persons went there in the first Qr^j^^rT 
 instance. The great nobles, bishops, and archbishops dis- 
 dained the jurisdiction of a court, presided over by some one 
 very much inferior in rank to themselves. It is suggested 
 that the clause in Magna Charta concerning ' indicium pa- 
 rium ' was really due to the dislike of the great barons to 
 come into a court presided over by the royal judges, who 
 were, apart from their official position, persons of no great 
 account. It was moreover good feudal doctrine that no one 
 was boimd to answer in any court but the coiui; of his own 
 lord. These great nobles were all tenants of the king ; and 
 to the king's court they naturally resorted. The king's court 
 may be said truly to be ' the court of great men and of great 
 causes.' 
 
 » Stubbs, Sel. Ch., p. 71. ^ Ibid., p. 73. 
 
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Rise of a 
 ' common 
 law.' 
 
 'Pieas 
 9f the 
 Crown.' 
 
 CHAPTER VII 
 
 THE DECLINE OF THE LOCAL COURTS. 
 THE ROYAL WRIT PROCESS 
 
 The period which lies between William I and Edward I 
 was the time during which the royal justice gradually dwarfed 
 and finally superseded all other justice, with the result that 
 there was produced a common law of the land. The time 
 had come for Wessex, Mercian, and Dane law, to give place 
 to the common law of England ; and, with the exception of 
 the customs of Kent, the one surviving custom was the 
 custom of the king's court. 
 
 The king's court had comparatively little original juris- 
 diction, for some time after the Conquest. It was the court 
 for great men and great causes, and it also took cognizance 
 of what are called ' pleas of the Crown.' 
 
 The local courts could nominally entertain all pleas exceptis 
 excipiendis as Mr. Maitland says, i. e. those which the king 
 
 reserves. 
 
 The list of pleas of the Crown was uncertain and irregular. 
 In the laws of Henry I, chap, x, De lure Regis, we find, 
 'Haec sunt iura quae rex solus habet in terra sua, com- 
 moda pacis et securitatis institutione retenta infractio pacis 
 regis, murdrum, utlagaria, incendium, robaria, iniustum 
 indicium, defectus iustitiae,' but the list was not constant. 
 We know that thefts, scuffles, blows, and wounds, could be 
 dealt with in the county court on appeal from the hundred 
 
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THE DECLINE OF THE LOCAL COURTS 47 
 
 or the manorial court ^. Civil actions, except those arising 
 between great men, were tried in the local courts. 
 
 The chief instrument for bringing about the supremacy of The royal 
 royal justice was the ' Writ.' The king's writ, it has been ^^^' 
 happily suggested by Mr. Jenks, is the descendant of the 
 royal Ban. It was the king's order to his liege, written on 
 parchment and sealed with the royal seal, and disobedience 
 to the writ was a contempt of the royal authority, and 
 entailed penal consequences. The writ, like the inquest, was 
 originally used for royal purposes, and to protect the royal 
 interest; but, like the inquest, this efficacious weapon was 
 purchasable by the subject, and the advantages of getting it 
 were found to be so great that it has superseded all other 
 processes, and remains in use to the present day. The writ, 
 moreover, being a written document, could be registered. 
 The king's officer kept a register of the writs issued; and 
 this register was available as a book of precedents, though it 
 need not be supposed that the early writs were classified with 
 any exactness. 
 
 The king, in the Norman times, took a personal part in 
 the administration of justice. He sat in court himself, and 
 he issued his orders to vassals and subjects in the ftJl 
 expectation that they would be obeyed. It is very doubtful 
 if we can consider the writ as being at first judicial. It is At first 
 perhaps safer to regard it merely as a royal command. There ^j^j; 
 was a large number of writs and mandates by which the 
 sovereign directed the performance of any desired act by the 
 subject. They issued irrespective of intervention by the 
 courts, and have now become obsolete. But it seems that 
 the term ' mandamus,' derived from these letters missive, was 
 gradually confined to the writ issued from the King's Bench, 
 which has developed into the present prerogative writ of 
 mandamus. 
 
 » Glan., lib. 1, c. 2. 
 
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48 ENGLISH LEGAL INSTITUTIONS 
 
 From the precedents we may infer that these commands 
 were of all sorts, and it never seems to have occurred to any- 
 body that the king's writ was insufficient on any ground, or 
 that it could safely be disobeyed. The king is the fountain 
 of justice, his word is law, and his writs settle the rights 
 of men. He writes to the sheriff ' Volo et praecipio,' and the 
 sheriff does what he is told. A is to hold certain lands : if 
 any one tvu'ns him out the sheriff is to put him in again ^, 
 B is to be free of customs *. C is told to perform customary 
 services of his land to Z) ; if he does not, D is to be allowed 
 ' suam voluntatem facere ^.' Strangers are not to go fishing 
 in certain places on the Thames *. The king orders fugitives, 
 — whenever found, — from the Abbot of Abingdon to be re- 
 stored ®. Abbot Simeon is to have soc and sac as his ancestor 
 had ^. Bishop Remigius, on the other hand, is prohibited 
 from having any new customs below the island of Ely '', ' For 
 I will not that he have any but those which his predecessor 
 had in the time of King Edward.' 
 
 A curious case is that of Modbert v. the Prior and Monks 
 of Bath (1121)*, The writ, or as it is called, 'literae cum 
 sigillo regis,' comes down to the Bishop of Bath. The king 
 is abroad, so his son sends the writ. ' Willelmus filius regis 
 lohanni episcopo de Batha salutem. Praecipio ut saisias 
 Modbertum iuste de terra quam tenuit Grenta de Stoca, sicut 
 haereditavit eum in vita sua.' The plaintiff said that he 
 was the adopted heir of the late owner, and so was entitled 
 to the land. The defendants said that the dead man was 
 only a tenant for life under them, and surrendered before 
 death. They produced witnesses, and also a charter. The 
 bishop apparently observing the word 'iuste' in the writ, 
 says that he agrees, and will obey the writ ' si tamen iustum 
 est,' and proceeds to try the case to see if it is just. The 
 
 1 PI. Ang.-Nor., p. 108. ^ Ibid., p. 74. » Ibid., p. 97. 
 
 * Ibid., p. 90. = Ibid., p. 94. « Ibid., p. 26. 
 
 'Ibid., p. 27. 8 Ibid., p. 114. 
 
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THE DECLINE OF THE LOCAL COURTS 49 
 
 parties contradict each other, a great discussion ensues, 
 and the decision seems far ofF. The bishop says, ' the day is 
 getting on, and we have other things to do,' and sends apart 
 some who are older and more skilful in the law than the 
 rest. They say the plaintiff must produce either a charter, 
 or two witnesses against interest. He fails to do so, and the 
 court then breaks up. There were present two bishops, three 
 archdeacons, ' cum clericis pluribus et capellanis.' A report 
 of the proceedings is sent to the king, and down comes a 
 writ to the bishop commanding that the monks do "hold their 
 land in Stoke, ' in pace et iuste et honorifice,' according to 
 the judgement. This court was held, as many courts were, 
 in a private house. 
 
 It is suggested that those writs which resemble in their 
 nature writs of execution, which give us no hint of prior 
 judicial proceedings, and by which the king seised and dis- 
 seised persons at his will, gave rise to the clause in Magna 
 Charta by which the king promises that he will not disseise 
 or imprisop his free subjects unless by the legal judgement 
 of their peers or the law of the land. There is the remark- 
 able^case of The Church of Abmgdon v. William^, in which 
 one William complained to Henry I that he had been put 
 out of possession of a mill by the late Abbot Faritius, ' quare 
 regis mandato saisiatus est inde ' ; but afterwards the king, 
 having been approached by the monks, and ' having learned 
 the truth,' ordered the church to be put back in its seisin. 
 In this case it seems quite clear that no judicial investigation 
 had preceded the issue of the writ of the king. 
 
 With these data before us, is it unjustifiable to draw the 
 inference that the king it was who, by his mere command, 
 settled the rights of his subjects ? It really looks as though 
 these inquests were not an essential part of the process, but 
 that they were used to inform the king's mind as to the 
 
 1 PI. Ang.-Nor.,p. 130. 
 
 E 
 
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50 ENGLISH LEGAL INSTITUTIONS 
 
 true state of the facts. In the last case we have no mention 
 of an inquest, but after one writ has been sent down, the 
 monks send Walter capellanus to persuade the king that he 
 was wrong ; he does so, and a new writ appears. In Mod- 
 berfs case, it seems as if there would ave been no inquiry 
 had it not been for the word ' iuste ' occurring, which the 
 bishop interpreted as making the order conditional. 
 
 The royal Such being the general jurisdiction of the various courts, 
 
 corned 'or- ^^ king having a residuary or appellate jurisdiction, and 
 
 dinary.' also a weapon like the writ ready to his hand, the royal 
 
 authority commenced to encroach upon the inferior tribunals. 
 
 The In the time of William I eminent men had been sent down 
 
 of the ii^to the local courts to try important cases, and in later 
 
 local reigns the sheriffs who presided in the shire courts were not 
 
 courts. _ ° . .^ 
 
 infrequently royal justices. A very good man could be made 
 
 sheriff of more than One county ; so we find that sheriff 
 
 Hugo, in Henry I's time, was not only sheriff of Berkshire, 
 
 Writs to biit of seven other shires. He was ' nominatus vir et cams 
 
 regi ^.^ A writ directed to such a sheriff would be executed 
 
 with vigour and swiftness. But that was not all: a writ 
 
 The called a 'Praecipe' could be directed to the sheriff in any 
 
 quod ^^^^ that raised a qu^estion of land wherever lying, or in 
 
 reddat.' cases of debts of the laity ^, and by the time of GlanviU the 
 
 practice is settled that, if any one complained to the king 
 
 concerning his fee or freehold, if the complaint were such as 
 
 was proper for the determination of the king's court, 'vel 
 
 dominus rex velit in curia sua deduci,' the writ was granted. 
 
 This was such a grievance to the baronage that a clause in 
 
 Magna Charta^ appears expressly directed against it, but this 
 
 policy was reversed by the Statute of Marlborough, ch. 29. 
 
 1 PI. Ang.-Nor., p. 101. 
 
 ^ As opposed to debts supposed to be of a spiritual nature, e. g. as 
 money due by legacy or on a promise of marriage. 
 ^ Mag. Char., c. 34. 
 
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THE DECLINE OF THE LOCAL COURTS 51 
 
 The Praecipe was a writ returnable, as appears on its face, 
 in the king's court, and it issued regardless of the question 
 whether the local court had done justice or not, or had even 
 been asked to do so. Glanvill preserves the form as follows : — 
 
 , ' Rex vicecomiti salutem. Praecipe iV quod iuste et For debt, 
 sine dilatione reddat R centum marcas quas ei debet ut 
 dicit et unde queritm* quod ipse ei iniuste deforciat, et 
 nisi fecerit sumraone eum per bonos summonitores quod 
 sit coram me vel iusticiis meis apud Westmonasterium 
 a clauso Pasche in quindecim dies ostensurus quare non 
 fecerit : et habeas ibi summonitores et hoc breve.' 
 Glan., lib. 10, c. 2. 
 
 ' R. V. s. Praecipe A quod sine dilatione reddat B For land, 
 unam hidam terrae in villa (naming it) unde idem B 
 queritur quod praedictus A ei deforciat et nisi fecerit, 
 etc' Glan., lib. 1, c. 6. 
 
 If, however, it was not desired to ' evoke ' the cause to 
 Westminster, the king could, by issuing a writ of ' iusticies,' 
 direct the sheriff to try a case which as mere sheriff he might 
 be unable to try. Under the writ he acted as a royal judge. 
 
 ' R. V. s. Praecipio tibi quod iusticies N quod iuste The writ 
 et sine dilatione faciat R consuetudines et recta servitia "jgjgg"^^' 
 quae ei facere debet de tenemento suo.' Glan., lib. 9, 
 c. 10. 
 
 As this writ was not returnable to Westminster, but stayed 
 down in the sheriff's court, it was called ' vicontiel.' 
 
 Bracton's account is as follows : — 
 
 'Potest quidem vicecomes tenere plura placita quae 
 non sunt ex officio vicecomitis sed vice ipsius regis et ex 
 causa necessaria non sicut vicecomes sed sicut iustitiarius 
 regis si hoc ei specialiter mandetur ^.' 
 
 There is given in the Mirror ^ a writ which looks like an 
 
 ^ Bracton (Rolls Series), ii. p. .542. 
 ^ Mirror of Justices (Seld. See), p. 10. 
 e2 
 
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62 ENGLISH LEGAL INSTITUTIONS 
 
 early form of such a special mandate issuing either to 
 a sheriff or lord of a fee. 
 
 ' Questus est nobis C quod D etc., et ideo tibi (vices 
 nostras in hac parte committentes) praecipimus quod 
 causam illam audias et legitimo fine decidas.' 
 
 Writs to The king also sent his writs to the manorial courts of the 
 
 court ^"""^ lords, and these are commands to the lord to do justice to 
 
 the complainant in his court ; and he is told that if he will 
 
 not do justice, — 'nisi feceris,' — the king's officer shall do it 
 
 for him. The king's officer was usually the sheriff". 
 
 The writ The manorial writs all had the ' nisi feceris ' clause. The 
 o right. most important was the writ of Right (breve de recto te- 
 nendo), which issued when the right of property in land was 
 in dispute, or rights of an incorporeal nature issuing from 
 land, e. g. rent or services. It was directed to the lord or 
 proprietor of whom the land was held, and took its name 
 from the words which commenced the writ. ' Praecipio tibi 
 quod sine dilatione plenwm rectum teneas N de decem caru- 
 catis terrae.' ' Rectum ' means the full right of ' property ' 
 as opposed to ' possession.' 
 
 The precedent given in GlanviU is as follows : — 
 
 'Rex comiti W salutem. Praecipio tibi quod sine 
 dilatione teneas plenum rectum N de decem carucatis 
 terrae in M quas clamat tenere de te per liberum ser- 
 vitium (or whatever the tenure was) quas R filius W ei 
 deforciat. Et nisi feceris vicecomes de N faciat ne 
 amplius clamorem audiam pro defectu iustitiae.' Lib. 
 12, c. 3. 
 
 The ' nisi The ' nisi feceris ' clause is not invariably found before the 
 
 clause^. ^°'^'^ °^ ^^^ ^"* becomes settled, when it is always present. 
 
 It was not always the sherifF who was to act : it might be 
 
 ' barones mei de Scaccario faciant fieri i,' or ' iustitia mea et 
 
 ' PI. Ang.-Nor., 127. ■ 
 
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THE DECLINE OF THE LOCAL COURTS 53 
 
 vicecomes faciant^.' Indeed, in one writ directed to the 
 sheriff himself in his administrative capacity ordering the 
 protection of certain rights, it proceeds, ' et nisi feceris iustitia 
 mea faciat ^.' 
 
 The lord is thus made to appear a mere officer of the king ; 
 and the fact that Henry II ordains that no one is to be put 
 to answer for his freehold without a 'king's writ, indicates the 
 downfall of the manorial jurisdiction. 
 
 According to Fitz Herbert ^ the lord might give a licence The writ 
 to his tenant to sue out his writ of right in tKe king's court, J'q^ 
 ' remitting his court ' for that time to the king's court, where- dominus 
 upon issued the writ ' quia dominus remisit curiam,' return- curiam. 
 able before the Common Pleas. If this clause were put in 
 the writ, it became immaterial whether the lord had assented 
 or not. A lord could also adjourn a case of difficulty into 
 the king's court, when, says Glanvill, he was said 'ciu-iam 
 suam ponere in curiam domini regis,' and having got direction 
 there, went back and tried the case in his own court *. 
 
 A writ might be addressed directly to a defendant direct- 
 ing him to do what the plaintiff required, frequently on pain 
 of a fine for disobedience ^, or concluding with the menacing 
 words ' et vide ne inde amplius clambrem audiam ".' 
 
 We have mentioned that thefts, scuffles, blows, and wounds The alle- 
 were within the jurisdiction of the sheriff or the manorial F^^^^^ 
 court, but Glanvill '' says, ' to the Sheriff in the county court pacem ■ 
 pertains the cognizance in case of failure of justice in the Regis.' 
 manorial courts of scuffles, blows, and wounds, wrdess the 
 plaintiff allege that the act was "de pace domini Regis 
 infracta."' This short expression prevented the defendant 
 pleading to the jurisdiction. The result was that if any 
 
 ^ PI. Ang.-Nor. 130. » Ibid. 266. ' Nat. Brev. 23. 
 
 * Lib. 8, c. 11. " PL Ang.-Nor., p. 95. 
 
 « Ibid., p. 93. ' Lib. 1, c. 2. 
 
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54 ENGLISH LEGAL INSTITUTIONS 
 
 complainant alleged in his action, criminal or civil, that the 
 wrongful act was done 'contra pacem domini Regis,' the 
 king's court took cognizance of it, and the sheriff's jurisdic- 
 tion was ousted. So in 1195 an action for carrying off turf 
 ' contra pacem vi et armis ' goes to the king's court ^- 
 
 ' PL Ang.-Nor.j p. 285. Although I follow Mr. Bigelow in this, 
 1 am not sure that the example is a good one. The defendant is 
 accused of ' roheria ' and ' felonia,' and was thus brought inside the 
 ' pleas of the Crown.' 
 
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CHAPTER VIII 
 
 THE DECLINE OF THE LOCAL COURTS (continued). 
 THE GRAND AND PETTY ASSIZES 
 
 The inferior jurisdictions had yet to feel the full weight The 
 of Henry's reforming hand. Proprietary actions (de recto Agg^g. 
 tenendo), in which title was litigated, were normally tried in 
 the lords' court, and the normal method of trying them was 
 by battle '^, the demandant in the writ of right putting 
 forward a champion who testified either of his own know- 
 ledge, or in obedience to the orders of his dead father to 
 what his father had seen, and who oflPered to prove by his 
 body. At some date not exactly known Henry issued the 
 Grand Assize^, which ordained that when the demandant 
 put in his claim in the lords' court and offered battle, the 
 tenant could, if he chose, decline battle and have the action 
 removed into the king's court, and the whole question of 
 title determined by lawful knights of the shire. The tenant 
 thus 'put himself on the Grand Assize' and escaped the 
 manorial jurisdiction altogether. 
 
 The procedure was as follows. When the demandant 
 opened his claim the tenant could decline the duel and put 
 
 ' Battle was sometimes prohibiterl by local usage, e. g. at Ipswich. 
 
 Bl. Bk. of Ad. ii. Ixxi. 
 
 ^ 'Assisa' means first, an assembly judicial in legislative, next a 
 
 ) judgement or ordinance, then it became appropriated to the specific 
 
 ' assizes,' and was used commonly as equivalent to a ' jury,' as in the 
 
 i expressions ' assisa venit recognitura,' ' assisa vertitur in iuratam.' 
 
 ) 
 
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56 ENGLISH LEGAL INSTITUTIONS 
 
 himself on the Assize (in Assisam se posuit), making a claim 
 for the writ de pace AaftenJa, which restrained the demandant 
 from taking further steps in the original process. The 
 demandant was thus remitted to an auxiliary writ which 
 summoned four knights of the county and neighbourhood to 
 choose twelve other knights of the same neighbourhood to 
 swear which had the better title ^. Any that swore that 
 they knew nothing about the matter were discharged ; if the 
 ultimate twelve disagreed they were 'afforced' till twelve 
 did agree. They swear to what they know by their own 
 eyes and ears, or by hearing it from their fathers, or some 
 equally credible source ^- 
 
 Proprietary actions could also be originated by writ of 
 ' Praecipe,' under which they stayed from first to last in the 
 king's court. This writ when dealing with such subject- 
 matter is known as a ' writ of right.' 
 
 This action, though it finally disposed of the question of 
 title, was very slow, for the tenant in possession might call 
 his warrantor, and he his, and so backwards, and if the 
 tenant was a minor, that fact might hang the suit up for 
 twenty years, when at last it would be settled by battle or 
 by the Grand Assize. 
 
 The In 1166 Henry issued the most important of the Petty 
 
 AssiLs Assizes, that of Novel Disseisin, which provided that if A has 
 (1) Novel been disseised of his free tenement by B since a certain date 
 
 _/yfjp ^p in 171 
 
 unjustly and without a judgement^, he is to be without 
 further question replaced in his seisin. A jury of twelve 
 
 ^ There is some dispute whether the four original knights were 
 added making a jury of sixteen. Perhaps this occurred later. Glau- 
 vill gives no warrant for the view. For the ceremony of choosing 
 see Y. B. 7 H. IV. 20, 28. 
 
 ^ Stuhhs, Sel. Ch., 161. Extracts from Glanvill. The Grand Assize 
 disappeared with the aholition of real actions by the statute of 1833. 
 
 ' ' Unjustly' here is synonymous with ' without a judgement.' No 
 further question of justice was left to the jury. 
 
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THE DECLINE OF THE LOCAL COURTS 57 
 
 'legedes homines' of the neighbourhood who were to say 
 'Yes' or 'No' to this plain question of fact were under the 
 original writ summoned directly by the sheriff. 
 
 'Assisa venit recognitura si Galfridus Comes de 
 Pertica iniuste et sine iudicio disseisivit lacobum Cleri- 
 cum de libero tenemento suo in Chaltona post primam 
 coronacionem domini Regis. 
 
 luratores dicunt quod comes disseisivit eum. 
 
 Indicium : comes in misericordia et lacobus habeat 
 seisinam suam.' 
 
 If they say 'No,' 'non disseisivit eum,' the judgement is 
 ' lacobus in misericordia pro falso clamore ^.' 
 
 By this ordinance possession as opposed to property is 
 protected by a rapid remedy, and the seisin of a free tene- 
 ment is protected by the king no matter of what lord it is 
 held. 
 
 Although this Assize was originally intended as a remedy 
 for an ejected person, by the end of Henry Ill's reign it 
 was used as an action for damages for any trespass which 
 the plaintiff chose to call a disseisin ^. 
 
 The object of the Assize is plain. If B thinks that A has 
 no right to possession, he must bring an action and try the 
 title in a peaceable nianner, he must not help himself and 
 turn A out. 
 
 Ten years later a second possessory or petty assize was (2) Mart 
 issued^, the Assize of Mort d^ ancestor. According to this ;<,)•. 
 Assize if A has died seised as of fee, that is, holding posses- 
 sion of a tenement, not as a mere life tenant, or, in other 
 words, as though the title were descendible to his heir, his 
 heir is entitled to be put into possession as against every 
 
 ' (Pipe Roll Series.) Rolls of the King's Court in the reign of 
 Rich. I, xxxii-vii. 
 * P. andM.jii. 63. 
 ' Assize of Northampton (1176), c. 4. 
 
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58 ENGLISH LEGAL INSTITUTIONS 
 
 man, irrespective of the goodness of his ancestor's title. If 
 C has a better title he must go to law and not step in in 
 front of the heir. 
 
 'Assisa venit recognitura si lohannes pater Rogeri 
 de Suttona fuit seisitus in dominico suo ut de feodo ^ 
 die qua obiit de una carucata terrae cum pertinenciis 
 in Westona; et si obiit infra assisam^ et si idem Rogerus 
 proximus heres eius sit. Quam terram Thomas de 
 Nortona tenet ^. 
 
 ' luratores dicunt quod non obiit inde seisitus [m- quod 
 Rogerus non est proximus heres suus]. 
 
 ' ludicium : Rogerus in misericordia, et Thomas teneat 
 quietus.' 
 
 These questions are also answered by the twelve ' legales 
 homines ' of the neighbourhood. 
 
 The Assize was restricted, for none at first could be 
 plaintiff who was not son, daughter, brother, sister, nephew 
 or niece of the ancestor ; some fifty years later supplementary 
 actions on a ' Praecipe quod reddat ' were given in regard to 
 the seisin of a grandfather, great-grandfather, great-great- 
 grandfather and a cousin (aiel, besaiel, tresail, and cosinage) : 
 the limit of time was the same as in mort cTancestor*. 
 
 The second Assize was complementary of the first, but the 
 two combined did not cover all cases of wrong to possession. 
 The Assize of Novel Disseisin could only be brought when 
 both disseisor and disseisee were alive. The heir of the 
 disseisee could not be plaintiff, nor the heir of the disseisor 
 the defendant. But if the disseisor be alive, the disseisee 
 can successfully join him and any one who is in possession 
 
 ^ The word ut = quasi. Notice ttat the expression is not ' uide 
 iure/ no question of ' ius ' was left to the jury. 
 " i. e. within some time fixed hy the ordinance. 
 ' i. e. the assize can be brought against any one holding the land. 
 * P. andM.jii. 57. 
 
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THE DECLINE OF THE LOCAL COURTS 59 
 
 through him. If the disseisor be dead, the disseisee must 
 wait till the law invents the ' writ of entry sur disseisin.' 
 
 The heir of the disseisee is also assisted. The disseisee 
 himself was allowed four days after the disseisin to go north, 
 south, east, and west, collect his friends, and forcibly re- 
 possess himself. If he died within that time, he died seised. 
 His heir had a longer time for self-help, apparently a year. 
 If the heir had himself taken seisin, he brought novel dis- 
 seisin ; if he was ejected immediately after the death, he had 
 his choice between the two assizes ^- As against any one in 
 whose hands he found the land, the law finally gave him the 
 ' writ of entry sur disseisin,' and the ' writ of entry sur dis- 
 seisin in the post ^.' 
 
 Thus the king had ordained, (i.) that none should be dis- 
 seised of his free tenement ' iniuste et sine iudicio,' (ii.) that 
 none should be disseised of his free tenement even by a judge- 
 ment unless summoned by a royal writ, (iii.) that none should 
 be forced to defend his seisin of a free tenement by battle. 
 The claimant had to offer battle, the tenant might decline. 
 
 These Assizes were not the first in order of date. Two (3) Dar- 
 
 earlier ordinances touched the Chiu-ch — the Assize of Datvein '**" ' 
 
 sentment. 
 
 Presentment and the Assize Utrwm. Their date of origin is 
 obscure : they are both referred to in the Constitutions of 
 Clarendon (1164), and there is evidence that something like 
 the latter was known in the time of Stephen. 
 
 The first dealt with advowsons. The king says that he 
 who presented last time shall present this time also, but 
 without prejudice to any question of right. The neighbours 
 are summoned to declare who presented last. 
 
 'Quis advocatus tempore pacis presentavit ultimam 
 personam quae mortua est ad ecclesiam de Westona cuius 
 
 ' Glanv. 13, 11. Bract, f. 273. 
 
 ' Vide P. and M., ii. 52-65. In 1259 damages could be given in 
 mort d'ancestor. Ibid. 59. 
 
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Assize 
 Utrum. 
 
 60 ENGLISH LEGAL INSTITUTIONS 
 
 advocationem Rogeras de Suttona petit versus Thomani 
 de Nortona.' 
 
 ITie institution of this Assize had two edges, for the king 
 claims as against the Church that such litigation is temporal, 
 and as against his feudatories that it belongs to the king's 
 court ^. 
 (4) The The Assize Utrum ^ was employed in the following case. 
 
 The Church claimed for her courts all litigation about land 
 which had been given by way of alms to her, and the pre- 
 liminary question naturally arose whether in any particular 
 case, as a fact, the land in question was lay or not. The 
 impartial country-side was then called upon to say ' Yes ' or 
 ' No ' to that question. 
 
 These Assizes are commenced by the plaintiff getting the 
 royal writ directing an inquiry and directing the im- 
 panelling of the twelve 'legales homines.' 
 
 Thus partly by the writ process and partly by employing 
 the fiction of the king's peace in an action for trespass the 
 royal courts obtained the control of ordinary litigation and 
 have never since lost it. 
 
 By the Provisions of Westminster (1259) confirmed by the 
 Statute of Marlborough (1267), no lord may compel his free- 
 holder to swear against his will ; the lord could not therefore 
 impanel a jury of freeholders without their consent ; the 
 king both- could and did. Moreover it is also provided that 
 none but the king may hold a plea of false judgement, thus 
 no appeal lies from lord to overlord, and the overlord's court 
 became valueless ^. 
 
 There are two more points to notice. The sheriff's 
 jurisdiction was doomed also. The sheriffs were in some 
 cases hereditary oflicials, and although a few of them were 
 
 ' Cf. Const. ofClar., cap. i. " Ibid., cap. ix. 
 
 ' 52 Hen. Ill, cc. 19, 23. 
 
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THE DECLINE OF THE LOCAL COURTS 61 
 
 satisfactory, — some of them were justices of the king, — ^the 
 system had not proved a success, and a crisis came when 
 Henry H (in 1170) ordered the Inquest of sheriffs ^ and 
 removed the majority of them from their offices, acting on 
 the grave complaints which he heard on all sides of their 
 misconduct and extortion, 'pro eo quod male tractaverant 
 homines regni suiV Magna Charta said that the sheriffs 
 were not to hold pleas of the crown, and thus swept away 
 the most important part of their, criminal jurisdiction % and 
 in the reign of Edward I almost the last blow was given, for 
 by a clause in the Statute of Gloucester, 1278, it is pro- 
 vided that no one is to have a writ of trespass in the king's 
 court unless he will affirm that the goods taken away were 
 worth 40,?. at the least. This was ingeniously construed 
 to mean that no action for more than 40*. should be brought 
 in a local court, or at any rate that the suitor must take 
 out a royal writ to the sheriff without which the sheriff 
 could not act. As the writ issued from the king's court and 
 had to be paid for, it was just as cheap to go straight to the 
 king's court and try the action there. 
 
 A cause was removable into the county court from the The 
 lord's court, either for defect of right or with the lord's ° ' 
 consent by the sherifTs precept called a ' Tolt,' ' quia toUit et 
 eximit causam e curia baronum.' 
 
 If the king's court desired to call up a cause from the ^Vrit of 
 sheriffs court, it did so by a writ of ' Pone.' '"^®" 
 
 ' Rex vicecomiti salutem. Pone coram me vel iustitiis 
 
 ' Stubbs, Set. Ch., p. 147. 
 
 ^ PI. Ang.-Nor., p. 216. See, however, that the chronicler says that 
 the king replaced some of them, ' atque ipsi postea multo crudeliores 
 exstiterunt quam antea fuerunt.' 
 
 ' This clause was held apparently to apply only to "^ hearing and 
 
 determining,' and not to the sheriff's power to receive indictments in 
 
 felonies and misdemeanours and arrest and imprison thereon. This 
 
 was set at rest by 1 Edw. IV, c. 2, which gave this authority to justices 
 
 • of the peace only. 
 
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62 ENGLISH LEGAL INSTITUTIONS 
 
 meis die etc. loquelam quae est in comitatu tuo inter 
 J et N, etc' Glanv., lib. 6, cc. 6, 7. 
 
 Error. If after judgement in an inferior court it was sought to 
 
 establish error, the record was ordered up to Westminster to 
 be examined for errors on its face. If, however, this court 
 had not the privilege of keeping a record — some county 
 courts had and others had not (the itinerants are said not to 
 
 Writ of have had it) — the judges were directed to make a record and 
 
 S?"^ bring it up. 
 
 'Praecipio tibi quod recordari facias in comitatu tuo 
 loquelam, etc' Glanv., lib. 8, cc. 6, 7. 
 
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CHAPTER IX 
 
 THE CIRCUIT SYSTEM AND THE CENTRAL 
 COURT 
 
 It is proper now to see how the royal justice was brought The 
 close to the people. William I occasionally sent down some- '^^^" 
 body from his court to try an important case, and Rufus 
 sent down into the west Bishop Walkelin and his chaplain 
 Flambard and two others, to hold royal pleas in Devonshire, 
 Cornwall, and Exeter ^. 
 
 The record says ' ad investiganda regalia placita,' but it is 
 probable that the words ' regalia placita ' do not mean ' pleas 
 of the crown ' in our sense, but royal business generally ; at 
 any rate the royal business of which we have a record was 
 to hear a suit on behalf of the king for a certain manor 
 which was held by the Abbot of Tavistock. Everything has 
 a beginning, and the practice of sending judges into the 
 country to do the royal business grew. 
 
 Henry I sent itinerants, for we have a record in the thirty- The ' itin- 
 first year of his reign which exhibits a system of ' itinera ' in ^^^'^ ^' 
 full working order ^. Their commission was to clear the 
 gaols, to hear pleas of the crown, and take pleas of realty up 
 to a certain value. Henry seems to have been rather active 
 in the administration of justice, for we find in the Anglo- 
 Saxon Chronicles of 1124 ^ the following entry : ' In the 
 
 ^ The King v. Abbot of Tavistock, PI. Ang.-Nor., p. 69. 
 
 2 Stubbs, Const. Hist., i. 391. ' Stubbs, Sel. Ch., p. 98. 
 
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64 ENGLISH LEGAL INSTITUTIONS 
 
 same year, after St. Andrew's Mass, before Christinas, Ralph 
 Bassett and the king's thegns held a " Gewitenemote " at 
 Hundehoge in Leicestershire, and their hanged so many 
 thieves as never was before, that was in that little while, 
 altogether four and forty men, and six men were deprived 
 of their eyes and emasculated ' ; and in the chronicle of 
 1135 : « The king died on the following day after St. Andrew's 
 Mass Day in Normandy. Then there was tribulation soon 
 in the land, for every man that could, forthwith robbed 
 another. A good man he was, and there was great awe of 
 him. No man durst misdo against another in his time. He 
 made peace for man and beast. Whoso bare his burden 
 of gold and silver, no man durst say to him aught but good.' 
 But Henry did not try to lessen the importance of the 
 county court. On the contrary, somewhere between 1108 
 and 1112, he issued an order to Bishop Sampson and the 
 sheriff of Worcester, directing them and every one else to 
 go to the county court and the hundred court as they had 
 done in the time of King Edward ^. 
 
 Henry II The reign of Henry II was of stiU greater moment to the 
 
 circuit history of English law. In 1176 Henry II made six circuits 
 
 system. of three judges, and two years afterwards made an inquiry if 
 
 the system had worked well, and found that it had given 
 
 great dissatisfaction ; so he recalled his eighteen judges, and 
 
 took a very important step. He appointed five men, two 
 
 clerics and three laymen, who were not to depart from the 
 
 His cen- king's court, but were to hear all the complaints of the 
 
 ' people. Questions that they cannot decide are to be 
 
 reserved for the king and wise men, who always were the 
 
 ultimate court of appeal, and are the earliest form of King 
 
 and Council ^. 
 
 TTiis court apparently sat term after term, usually at 
 
 ^ Stubbs, &/. Oh., -p. 104. 
 
 " Gesta Reg. H. 11 (Rolls Series), i. 207-8. 
 
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THE CIRCUIT SYSTEM 65 
 
 Westminster, but sometimes at the Exchequer, and Glanvill 
 was one of the judges. Next year he divided England into 
 four parts and to each part sent ' viros sapientes ad faciendam 
 iustitiam ^.' The commissions of the former itinerants had 
 been limited : cases of difficulty were to be reserved. If this 
 was the rule now, it is curious that the judges of the northern or ' the 
 circuit, six in number, seem to have been identical with the 
 tribvmal sitting in London ^. 
 
 It is proper, however, to say that the precise relationship 
 between these itinerant judges and those who were sitting 
 in London is disputed. But it is certain that most judges 
 who went journeying through the country are of less impor- 
 tance than the judges who stayed in London. The judges 
 who stay in London are the justices who hold pleas before 
 the king. We find in the second year of John that the 
 Abbot of Leicester, being sued before the justices of the 
 Bench, pleaded a charter of exemption from suit except 
 before the king, and his chief justiciar. Held : the pleas 
 before the justices of the Bench were before the king \ 
 
 It did not follow that the justices who were sent out 
 itinerant were lawyers in our sense of the term, for we 
 read in Ralph de Diceto that Henry was making experiments : 
 ' now he sends out abbots, now earls, now chaplains, now 
 men of his household, now his most intimate companions, 
 to hear and try cases ' ; and he ended by appointing, though 
 apparently merely for a time, the Bishops of Worcester, Ely, 
 and Norwich, as arch-justiciars * of the king. 
 
 Before the end of his reign there was a permanent central Distinc- 
 
 tribunal of sworn judges. It is capitaUs curia regis : it must t^een%) 
 
 be distinguished from the Exchequer, for though it often capitalis 
 
 curia regis f 
 
 ' Hoveden, ii. 190 (Rolls Series). 
 2 Ibid., p. 191. 
 
 = Abbrev. Placit., 2 John, p. 32. 
 ' Had. de Diceto, i. 434 (Rolls Series). 
 F 
 
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66 ENGLISH LEGAL INSTITUTIONS 
 
 (b) Exche- sat in the Exchequer, and many of its number were members 
 
 (c) Great of the Exchequer, it had a seal of its own ; and it must be 
 Council, distinguished from the King's Council because difficult 
 
 matters were reserved for the king and his wise men ; and it 
 held pleas ' before the king,' whether the king is in England 
 
 (d) itiner- or not. The itinerants went regularly : they probably sat 
 
 under various commissions, and they could be summoned up 
 before the central court to give an account of their doings, 
 though frequently they had a member of the central court 
 travelling with them. Glanvill, lib. 8, c. 5, distinguishes 
 between 'capitalis curia regis 'and the 'iusticiarii itinerantes,' 
 although these latter form a 'curia regis coram iustitiariis 
 itinerantibus ^.' Itinerants, says Bracton, are sometimes 
 appointed *ad omnia placita,' sometimes 'ad quaedam 
 specialia.' 
 
 Henry's own share in the administration of justice was not 
 trifling. When he was in England he frequently sat in 
 court, and sometimes he went on eyre. There is an account 
 of a suit at Clarendon between Abbot Walter and Gilbert of 
 Balliol. The justiciar was there, but Henry intervened in 
 the discussion, upholding the validity of the royal charters 
 produced by the abbot, and swearing per oculos Dei that 
 such charters cost him dear ^- Nevertheless judgement was 
 given by the unanimous voice of the court, and not by the 
 voice of the king. On another occasion % the charters being 
 conflicting, Henry observed that they contradicted each other, 
 and that he could make nothing of them, and flung out of 
 coiurt, saying that he must keep who can. 
 
 ' Select Pleas of the Crown (Selden Soc), Introd. pp. xi sqq. 
 » PL Ang.-Nor., p. 177. 
 
 ' Archbishop of Canterbury v. Abbot of St. Edmund, PI. Ang.-Nor., 
 p. 238. 
 
 ' " Nescio quid dicam : nisi ut chartae ad invicem pugnant." 
 
 ' Rex vero iratus inde et indignans, surrexit et recedendo dixit, 
 " Qui potest capere, capiat," et sic res cepit dilacionem, " et 
 adhuc sub iudice lis est." ' 
 
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THE CIRCUIT SYSTEM 67 
 
 On another occasion the monks of St, Alban's declared that 
 he showed a wisdom equal to that of Solomon when he 
 declared that the unsealed land-books of the Anglo-Saxon 
 kings were as good as sealed because they were confirmed by 
 a sealed charter of Edward the Confessor. 
 
 In the reign of John we find that in Magna Charta there 
 is a clause promising that two justiciarii, § 18, should be sent 
 down to the Assizes four times a year, which indicates that 
 the royal justice was becoming extremely popular. The 
 point of the request, it is suggested, was that the itinerant 
 justices were too often knights of the shire, and that the 
 decision of a royal judge from the central court was pre- 
 ferred in matters of such importance. 
 
 Very early in John's reign we notice that the capitaUs curia 
 regis is showing, as the learned editor of the Select Pleas says, 
 not a cleft, but a line of cleavage. A distinction is recog- 
 nized between pleas held before the king himself, and pleas 
 held before the justices of the Bench, who seem to have been 
 sitting regularly at Westminster in the sixth, seventh, ninth, 
 and tenth years of John. The king may have been away at 
 times, but the courts do not coalesce^ when the king is back 
 again at Westminster, nor is it certain that an action com- 
 menced in one division may not be adjourned into the other. 
 Each is curia capitalis. 
 
 By the side of the journey of the itinerant justices we have The 
 an institution which must not be confiised with it, that is, jjy^g 
 the general eyre, which went through the country irregularly, 
 and in the time of Henry II went once in seven years. It 
 took business of all sorts, not merely judicial ; it is possibly 
 correct to say that the least important part of its work was 
 the hearing of pleas. It went through the country investi- 
 gating the whole system of administration. Before the com- 
 missioners started on their journey they were given a set of 
 
 f2 
 
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68 ENGLISH LEGAL INSTITUTIONS 
 
 interrogatories, which are called the articles of the eyre — 
 the 'capitula itineris' — and answers to these interrogatories 
 were required from a jury of the neighbourhood. They were 
 commissioners of revenue, they were also criminal judges, 
 and in those times matters of crime and matters of revenue 
 were very much akin. 
 
 We have, thanks to Professor Maitland, the account of 
 the eyre in the county of Gloucester, 1221, and we find in 
 Bishop Stubbs' Select Charters that the inquisition of llO* 
 included the extent of the king's demesne lands, questions 
 about murder, robberies, escheats, wardships, marriages, 
 widows, Jews, churches, and other sources of royal revenue ^. 
 In 1198 we have another list including questions as to vacant 
 churches, usury, treasure trove, purprestures, fiigitives, weights 
 and measures, and customs. The jury of the hundred to 
 whom these questions were put have time to make their 
 answer, and when they have made up their minds they make 
 their presentments, and these presentments make up the 
 record, and the entries are ' dicunt,' ' sciunt,' ' nesciunt,' ' mali- 
 credunt.' The answers were carefully compared with the 
 rolls of the sheriffs and coroners. Any omission was a groimd 
 for amercement ; false presentments, foolish presentments 
 ('stulta presentatio ') and honest mistakes all helped the 
 Treasury. 
 
 It is said that these eyres were so grievous and oppressive 
 to the people, that sometimes on the rumour of their coming 
 the inhabitants fled from their homes. It is possible that the 
 general eyres were a substitute for the great progresses which 
 the King and his Court used to make through the land. In 
 any case they must be distinguished from the purely judicial 
 commissions, in that they were to a great extent concerned 
 with the king's revenue ^. 
 
 ' Stubbs, Sel Ch., p. 258. 
 
 "^ For the difference between a general eyre and a judicial ejre, 
 cf. Stubbs, Set. Ch., pp. 258 and 368. 
 
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THE CIRCUIT SYSTEM 69 
 
 The provision in Magna Charta that the Common Pleas The Corn- 
 are not to follow the king was aimed at a very real grievance. ™°° T^^^^ 
 Whether the object was or was not to prevent the Exchequer London, 
 holding these pleas, it is certain that if anybody desired to 
 have the advantage of the royal justice he must lay his 
 account for making wearisome journeys, and following the 
 king in his progresses, which were extremely long, and which 
 might even take him out of the country into France : he 
 must go attended by his witnesses ready to prove his case, and 
 wait tiU he could get a day for hearing. 
 
 DiiBculties such as they made it impossible for any but 
 the most leisured or the most wealthy to embark on a suit in 
 the King's Court with any hope of a satisfactory result. 
 The Common Pleas, therefore, were no longer to follow the 
 king, but were to be held in 'a certain place,' and that 
 certain place was Westminster, where the Court of Common 
 Pleas sat from the time of Magna Charta down to the day 
 when the new courts of justice were opened at Temple Bar. 
 
 When Henry III began to reign he was an infant, and 
 could not hold pleas, and the ' Bench ' sat regularly at West- 
 minster for the dispatch of civil and criminal business. 
 There was no royal progress for any pleas to follow ^. But 
 when he came of age he made progresses with judges in 
 attendance, and pleas were heard 'coram rege,' and then two 
 sets of Plea RoUs definitely appear, the Coram Rege RoUs, 
 and the De Banco RoUs. 
 
 So when Edward I came to the throne we have the Curia Cleavage 
 Regis, or the Court which holds pleas before the king, or the Iq^j^^ 
 King's Bench as we should call it ; we have the Exchequer Regis. 
 
 ^ During Henry's minority, the Council had supervision and revision 
 on error of inferior Courts (Duffus Hardy, Description of Close Bolls, 
 pp. 101-2), and emerged from this reign well organized. But note 
 that in the next reign Council is not distinguishable from Parliament 
 (inf. p. 82). 
 
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70 ENGLISH LEGAL INSTITUTIONS 
 
 which ought to be attending to the fiscal interests of the 
 Crown, but which likes to finger other and more profitable 
 business, and is forbidden to do so by Edward, and we have 
 the Common Pleas, or as it is known at that time, the 
 Common Bench. 
 
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CHAPTER X 
 
 THE ENGLISH JUSTINIAN 
 
 The reign of Edward I was remarkable not only for its Edward 1: 
 legislative activity, but for what is more important for our ^^® settle- 
 purpose, the changes in the administration of justice which 
 appear for the first time, and which left oiu* judicial institu- 
 tions in the form in which, with very slight alteration, they 
 remained to the year 1875. Of Edward I Blackstone says, 
 ' in his time the law did receive so sudden a perfection that 
 Sir Matthew Hale does not scruple to affirm that more was 
 done in the first thirteen years of his reign to settle and 
 establish the distributive justice of the kingdom than in all 
 the ages since that time put together'; and Sir James 
 Mackintosh says that ' from the reign of Edward I we possess 
 the Year Books, notes of cases adjudged by the courts who 
 exclusively had the power of authoritative interpretation.' 
 
 In the next century elementary treatises, digests, and works 
 on special topics appear, written by Littleton, Fortescue, and 
 Brook. ' So conspicuous a station at the head of our unin- 
 terrupted jurisprudence has prociu-ed him the name of the 
 Enghsh Justinian.' ' Absurdly enough,' says Lord Campbell, 
 ' as the Roman Emperor merely caused a compilation to be 
 made of the existing laws, whereas the object now was to 
 correct abuses, to supply defects, and to remodel the adminis- 
 tration of justice.' 
 
 The Curia Regis now broke up definitely into three bodies. 
 
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72 ENGLISH LEGAL INSTITUTIONS 
 
 It had been separated into distinct tribunals doing a distinct 
 work for some little time. With the Exchequer attending 
 to the revenue, and the Common Pleas or Common Bench 
 sitting at Westminster, the process of disintegration had 
 commenced. In Henry Ill's time a farther step had been 
 taken. The great line of Justiciars who presided over the 
 kingdom in the king's absence came to an end, and Robert 
 Bruce was appointed ' capitalis iusticiarius ad placita coram 
 rege tenenda' on March 8, 1268. He does not appear to 
 have acted in Edward I's reign, and in 1273-4 Ralph de 
 Hengham was appointed Chief Justice of the King's Bench, 
 Roger de Seaton Chief Justice of the Common Pleas, in 
 succession to Gilbert de Preston, the king allowing them 
 a salary of only sixty marks a year, but 'adding a small 
 pittance to purchase robes, and stimulating, their industry by 
 fees on the causes they tried.' 
 
 The Exchequer, which from the beginning had been a finan- 
 cial department, became more exclusively so in Henry Ill's 
 reign. The Chancellor and the Justiciar are there, but they 
 gradually withdraw. A new official called ' the treasurer ' is 
 the head, and from the beginning of Henry Ill's reign men 
 are appointed to the Exchequer under the title 'Barons of 
 the Exchequer.' 
 
 The Court of the King's Bench travelled about the country, 
 and the Chief Justice Hengham was stationed from time to 
 time at Winchester, Gloucester, York, and other places. The 
 king went abroad to Aquitaine, and stayed there over three 
 years, and on returning in 1289 found that his new judges 
 had been misconducting themselves. It was alleged that 
 the Lord Chief Justice had not only taken bribes himself, 
 but had connived at his brother judges doing the same. The 
 king thereupon without inquiry threw them aJl into prison. 
 The charges having been investigated by a commission 
 appointed by the king, they were all, except two, found 
 
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THE ENGLISH JUSTINIAN 73 
 
 guilty, dismissed, and heavily fined, and their successors were 
 required to swear upon entering office ' that they would take 
 no bribe, nor money, nor gift of any kind from such persons 
 as had suits depending before them, — except a breakfast ', 
 which they might accept provided there was no excess. 
 
 The business of the King's Bench was to correct all crimes The 
 and misdemeanours that amount to a breach of the peace, S^^v 
 the king being then plaintiff, for such are in derogation of 
 the mra regalia ; and to take cognizance of everything not 
 parcelled out to the other courts. It also had superinten- 
 dence of the other courts by way of appeal : thus ' error ' lay 
 from the Common Pleas to the King's Bench. It followed 
 the king, the style of the coiui; was ' coram ipso rege,' and 
 its records are called ' coram rege rolls.' The Chief Justice 
 was assisted by three puisne judges, and they formed the 
 staff of the King's Bench. 
 
 The Court of Common Pleas decided all controversies The 
 
 between subject and subiect. It sat at Westminster and its Common 
 
 •' •' Fleas or 
 
 records were called the ' de banco rolls.' Common 
 
 Bench. 
 The Exchequer was a board of revenue which sat to hear The Bx- 
 and determine matters in which the king's revenue was chequer. 
 concerned, to adjust and recover his revenue, the king being 
 plaintiff, as such matters touch his iura Jiscalia. In later 
 times the Court of Exchequer developed two sides, the 
 common law side, which sat for the benefit of the king's 
 accountants, and where the proceedings on the writ of 
 Quommus were heard, and the equity side, formed by the 
 Lord Treasurer, the Chancellor of the Exchequer, the chief 
 baron and three puisnes, which called the king's debtors to 
 account by a biU filed by the Attorney-General. The 
 equitable jmrisdiction was taken away in 1842, when two 
 new Vice-Chancellors were appointed to do the work so 
 
 ^ Rapin, iii. 245, and see a similar oath required from the judges. 
 Hot. Ckus., 1 Edw. II, m. 19. 
 
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74 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Council 
 and Par- 
 liament. 
 
 The Par- 
 liament 
 of 1306. 
 
 liberated. This did not, however, affect the jurisdiction of 
 the Exchequer in revenue cases, where law and equity had 
 always been concurrently administered^. 
 
 The Great Council. 
 
 There is, meantime, an important development proceeding 
 in the King's Council. The Council of wise men had, from 
 the earliest Norman times, always been consulted by the 
 king in cases of difficulty. So in the case oi Abbot Gausfrid 
 V. Abbot of Marmoutier, the defendant comes over to try to 
 subject the Abbot of Battle to his jurisdiction, and tries 
 to approach the king privately 'per internuntios sagaciter.' 
 The king, though much inclined to help, thought that he 
 had better say nothing finally, ' absque consilio.' Before the 
 Council the abbot alleged a gift from King William. The 
 Council requires to see the deed of gift. " The abbot says 
 that the king's word is good enough. ' No,' sa:ys the Council, 
 ' in so great a matter we must have either a charter or wit- 
 nesses viva voce ^.' 
 
 So also in the case of the widow and eldest son of Hugh 
 Bigot in 1174. This was a claim to estates : both parties 
 approach the king with money. The king, however, directs 
 a hearing before the earls and barons ^- So in the time of 
 Henry II and Henry III any orders or writs which are 
 without precedent are made 'de consilio curiae.' 
 
 But in the reign of Edward I, a new body makes its 
 appearance under the name of the Parliament, and we have 
 the record of the Parliament of 1305 published in the Rolls 
 Series with an introduction by Professor Maitland*. This 
 was in the thirty-third year of Edward I in the month of 
 February. It was a full Parliament : the three estates of 
 
 ' A.-G. V. Balling, 16 M. & W. 687. 
 
 ^ PI. Ang.-Nor., p. 122. 
 
 * Memoranda de Parliamento, 1306. 
 
 Ibid., p. 230. 
 
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THE ENGLISH JUSTINIAN 75 
 
 the realm met, the King and his Council, in all about six 
 hundred men. Besides, there were thirty-three members of 
 the King's Council to whom, though not prelates or barons, 
 writs were sent, and others were summoned to advise the 
 king from their special acquaintance with Scotch and Gascon 
 affairs. 
 
 This assembly kept together for three weeks, and on the 
 21st of March proclamation was made that the archbishops, 
 bishops, and other prelates, earls, barons, knights, citizens, 
 and burgesses might go home, but they must be ready to 
 come again, when wanted, 'sauve les Evesques Contes et 
 barones justices et autres qui sount du conseil nostre seigneur 
 le roy ' ; which we may suppose, as Mr. Maitland says, must 
 have been an intelligible order to those to whom it was 
 addressed. Those persons still remained who had business 
 to transact, and Parliament remained in session till the 6th 
 of April, on which day the ' dominus Rex ' is still ' in pleno 
 Parliamento ^.' 
 
 It is very uncertain what the composition of the King's The com- 
 Coimcil was, but there were thirty-three men who were not ^£ ^^g**" 
 barons or earls, summoned by name. They included the CouncU. 
 Chancellor of the Exchequer, the Justices of the two Benches, 
 the Barons of the Exchequer, several ' itinerants,' and thirteen 
 clerks of the Chancery. The Chancery is the great secre- 
 tarial department, and does the king's writing, foreign and 
 domestic. 
 
 The other great administrative department is the Ex- 
 chequer, over which the Chancery had a control, the extent 
 of which we do not know. These thirty-three men repre- 
 sent the legal, official, and administrative talent of the 
 country. If we knew the names of the other councillors who 
 attended on being summoned as prelate or baron, such as the 
 Chancellor, who comes as Dean of York, we should have 
 
 * Mem, de Parliannento, p. 293 (Rolls Series). 
 
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76 ENGLISH LEGAL INSTITUTIONS 
 
 a nearly complete list of the Council, but even then the 
 names of some nobles who were out of favour would be 
 absent. Professor Maitland has compiled a list of names 
 from a comparison of the signatures of those who, before and 
 after the dismissal of the estates, witnessed the king's char- 
 ters. The names occur of Walter Langton Bishop of Lich- 
 field and Treasiu-er, Antony Beck the great fighting Bishop 
 of Durham, John Halton Bishop of Carlisle, and the Bishop 
 of Salisbury, the Earls of Lincoln, Gloucester, Hereford, 
 Warwick, and Carrick, Henry Percy, Hugh Despenser, and 
 Robert Clifibrd, both justices of the forest, John of Brittany, 
 and Aymer de Valence, the king's best generals. These men 
 were all of them important oificials ^. 
 
 This meeting of the Council is, at the least, a fall meeting 
 of the King's Bench, the Common Bench, the Exchequer, 
 the Chancery, the War Ofiice, and the Wardens of the 
 Marches. 
 
 Work The business which was done in this Parliament was (1) the 
 
 fh "^P discussion of foreign affairs, Scotch and Gascon ; (2) legisla- 
 liament. tion ; (3) taxation ; (4) audience of petitions ; (5) judicial 
 business, criminal and civil. 
 
 With the first three topics we are not much concerned, nor 
 is there much to note. With regard to legislation no statute 
 appears at once on the statute roU, but there are a few facts 
 of a legislative character. There is an Ordinatio Forestae, 
 merely a royal answer to a petition : there is an ordinance of 
 inquests ' ordained by the king and his whole council.' There 
 
 ^ Doubtless the king was entitled to call on any of his lieges to 
 give him faithful counsel, a duty, when travelling was difficultj both 
 onerous and inconvenient. As late as 16 Edw. 11, Henry de Beaumont, 
 a baron, being summoned to a council and asked his advice disrespect- 
 fully declined to give it. The king angrily ordered him to leave the 
 council. He did so, remarking that he would sooner be out than in. 
 For this refusal and contumely he was committed to prison (Rot. Lit. 
 Claus., 16 Edw. H, m. 6 d. Plac. Abb., p. 342). 
 
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THE ENGLISH JUSTINIAN 77 
 
 is a curious entry ' de asportis religiosorum.' ' The king in 
 full parliament with fiill consent of the barons, &c., and 
 others of the realm has ordained as follows ' — and then comes 
 a blank. The explanation given of this is that the papacy 
 at that time was vacant, and it may have been desirable to 
 keep the question dealt with in abeyance. In any case the 
 ordinance was formally re-enacted two years later at Carlisle, 
 and appears on the statute book. 
 
 The ordinance of Trailbastons, i. e. clubmen, was also Trail- 
 passed whereby the king appointed justices to inquire and '"^^' 
 hear and determine divers felonies and trespasses, and the 
 commissions then issue ^. But this is not legislation properly 
 so called, for the king always had large powers of issuing 
 commissions. It was rather a great measure of police, for 
 the purpose of dealing with vagabondage^. Of taxation 
 
 ' See Palgrave, Pari. Writs, i. 408. 
 
 * It appears from the commissions issued that many malefactors 
 perpetrating homicides, depredations, fires, and other wrongs, wandered 
 about and were harboured, and that the king appointed certain persons 
 his justices to inquire who are these malefactors and their confede- 
 rates, aoad who for gifts make a compact with malefactors and dis- 
 turbers of the peace, and lure them to beat, wound, and ill-treat many 
 in feirs, markets, and other places, from enmity also because they 
 spoke the truth on assizes and inquisitions of felony. Persons charged 
 with the above transgressions shall be proceeded against, though no 
 one prosecutes, and if convicted be sent to gaol. 
 
 These ruffians were called Trailbastons. So Peter Langtoft's Ohronwle 
 says : 
 
 Traylbastons sunt nomez de eel retenaunce 
 
 En fayres et marchez se proferent fere covenaunce 
 
 Pur tres sous ou iiii, ou pur la valiaimce 
 
 Batre un prodhomme ke unk fist nosaunce 
 
 A cors cristiene. 
 
 Si homme countredye a nul de I'aliaunce 
 
 Batut sera been. 
 'This company are called Trailbastons, they offer to make con- 
 ventions at fairs and markets for three or four shillings, or merely to 
 show their courage to beat a good man, who never did hurt to any 
 
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78 ENGLISH LEGAL INSTITUTIONS 
 
 there was apparently none, although the king was very poor. 
 A petition from the justices of both benches and the barons 
 of the Exchequer and the clerks asking for their salaries was 
 met by the answer 'Quod Thesaurarius et Barones solvant 
 quando poterint.' 
 
 The The Audience of Petitions touches us more nearly. The 
 
 e 1 ions. gi.ga,ter part of the roll is taken up with entries on this 
 
 subject. The petition, which is addressed to ' our lord the 
 
 king,' or to ' our lord the king and his council,' not, it will 
 
 Christian body. ... If a man contradict any one of the alliance ... he 
 shall be well beaten.' 
 
 These associations bear a likeness to the so-called 'Hooligans' ot 
 to-day, whose attentive co-operation in matters of personal enmity can, 
 I am informed, be secured for a not unreasonable fee. 
 
 The commissioners had large powers, and incurred considerable 
 unpopularity. The commission of 1305 for the west and south-west of 
 England was addressed to Martyn, Spigurnell, de Knovill, de Bellafago, 
 and de la Hyde. A contemporary ballad thus speak of the four : 
 'Ly Martyn et ly Knoville sunt gent de piete 
 E prient pur les povres, qu'il eyent sauvete. 
 Spigurnel e Belflour sunt gent de crnelte 
 Si il fuisent en ma baylie ne serreynt retornee.' 
 The ballad as translated by Lockhart proceeds through twenty-four 
 stanzas of complaint : 
 
 ' Sir if my boy offend me now, and I my hand but lift 
 To teach him by a cuff or two what's governaunce and thrift 
 This rascal vile, his bill doth file, attaches me of wrong 
 Forsooth find bail or lie in gaol, and rot the rogues among.' 
 Of the two cruel justices it says : 
 ' I'd teach them well this noble game of trailbaston to know. 
 On every chine I'd stamp the same, and every nape also ; 
 On every inch in all their frame, I'd make my cudgel go. 
 To lop their tongues I'd think no shame, nor yet their lips 
 to sew.' 
 If these were the methods of the Trailbastons, some inhibitory pro- 
 cess seems to have been desirable. These commissions issued at in- 
 tervals till the middle of the reign of Richard II, when they ceased. 
 The above extracts are from Wright's Political Songs. Mr. Lockhart's 
 translation was published in 1828, in The Bijou. See also Foss., iii. 
 SOsq. 
 
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THE ENGLISH JUSTINIAN 79 
 
 be observed, to 'paxliamenV is on a small slip of parchment, 
 with the answer endorsed on the back. 
 
 The method of dealing with these petitions was as follows. 
 In the eighth year of Edward I the multitude of petitions 
 was a great hindrance to business. They are, therefore, to 
 be sorted and only those of great importance are to come 
 before the king. In the twenty-first year of Edward I, 1293, 
 these petitions were sent to Receivers, who were to examine 
 and put them into five bundles ; (1) for the Chancery, (2) for 
 the Exchequer, (3) for the Estates, (4) for the King and 
 Council, (5) those which have been already answered ^. In 
 1305 the record shows that the king appointed three com- 
 mittees to deal with Gascon, Scotch, and Irish petitions, but 
 there is no trace of any committee for England. In 1315 three 
 committees are in existence, one for England, one for Gas- 
 cony, and the Isles, a third for Ireland and Scotland. The 
 English committee was composed of three bishops, two barons, 
 a justice, a baron of the Exchequer, and a clerk of the Chan- 
 cery. Some petitions from their importance are reserved for 
 the king or the whole council. This is indicated by the 
 words ' coram rege ' or ' coram consilio,' preceding the answer 
 and in a different handwriting. A clerk, having enrolled the 
 petition in the Parliament Roll, sends the original off to 
 Chancery. There the chancellor seals a writ or a charter, 
 finding his authority in the endorsement on the petition. 
 The endorsement is the order. 
 
 These petitions are not presented to Parliament but at a What is 
 Parliament. A Parliament, says Professor Maitland, is rather ment? 
 an act than a body of persons at this time, and is, as yet, any 
 meeting of the coimcil that has been summoned for general 
 purposes ; the term is not yet appropriated to colloquies of 
 
 ' So in the Rolls of Parliament we find endorsements such as, 
 ' Eat coram lustic' de Banco.' 
 'Veniat Cancellariam ut fiat ei quod graciose fieri potuit.' 
 
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80 ENGLISH LEGAL INSTITUTIONS 
 
 the king with the estates of the realm, much less to the 
 assembly of the estates. The petitions are not for anything 
 like legislation, but for things which the king can legally 
 grant either for justice or for grace. The answers are mainly 
 remissions of the questions to those persons or courts which 
 have proper cognizance of such things. 
 
 Procedure This is not mere waste of time. If A desires to bring 
 tions. ^^ action against his neighbour, he must go to the clerks 
 
 in Chancery, and if it is an ordinary case, a writ de cursu — 
 ' of course ' — will be issued, presumably on payment of a fee. 
 Should the matter be unusual, the Chancellor will do nothing 
 without a warrant from the King or Council, and the war- 
 rant is noted at the foot of the writ ^. So if A wants relief 
 from the Exchequer he goes to the Council for an endorse- 
 ment on his petition. He takes that to the Chancery, 
 and gets a writ there ; that goes to the Exchequer, where 
 after it has been enrolled in each office, the treasurer and 
 barons wiU begin to consider whether relief is proper 
 or not. 
 
 Apparently sometimes the petitioner was required to ap- 
 pear and support his petition, and failing that it might be 
 dismissed. Sometimes a knight of the shire presents the 
 petition of his constituency and supports it, for such peti- 
 tions come from the shires, and also from religious houses, 
 universities and boroughs. So too the assembled 'good 
 men ' petition the king. All these petitions are jumbled up 
 together, for between a petition of Roland of Oakstead and 
 the citizens of Lincoln we find the 'poor men of England' 
 complaining that juries are corrupted by the rich, and that 
 ecclesiastical judges meddle with temporal suits. To this 
 the king answers that the ordinary process is sufficient, the 
 corrupt jury may be attainted, the ecclesiastical judges may 
 be prohibited ^. 
 
 ' Mem. de Pari, No. 251, p. 168. " Ibid., No. 472, p. 305. 
 
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THE ENGLISH JUSTINIAN 81 
 
 Later we perceive a difference. Petitions by 'the com- Differen- 
 munity of the land' will be inroUed with the royal answer, ^^^F ™ 
 petitions to either House will also be inroUed, if the assent of 
 the King and both Houses has been given. Ordinary peti- 
 tions to the King and the Council will not be inroUed, i. e. 
 petitions of those who have grievances. The business which 
 we find the Commons doing is dealing with two petitions. The Com- 
 which were refiised, and joining in the statute de asportis ™tnotim- 
 religiosonmi, which was temporarily hung up. This is not portant. 
 important activity, but no doubt they were usefiil as check- 
 ing the official reports of what was going on throughout the 
 country, and indeed the writ of summons calls them 'in 
 order that they may do what shall be ordained.' 
 
 The judicial business of the session was scanty. Nicholas Judicial 
 Segrave was tried for treason. He confessed. Edward asks \,^(qj.^ tjjg 
 the Council what punishment should be awarded, and the King in 
 answer is ' Death ' ; but the king is content if he finds seven Parlia^ 
 manucaptors to undertake that he should come up when ment. 
 called on. It is said that the Council discussed this matter 
 for three days. The citizens of Salisbury resist a tallage 
 imposed by a bishop under a charter of Henry III. They 
 are summoned. They send four representatives : among 
 them their two members. They plead. There is a dis- 
 cussion before the King and the Council. Judgement goes 
 against them. In St. Amand's case certain great people 
 undertake before the Council to produce the defendant 
 before the king, when called on. Then there are proceed- 
 ings in the King's Bench, from which we infer that there 
 was a close connexion at that period between the Council 
 and the King's Bench. 
 
 The real point of interest and difficulty is, as Professor The rise 
 
 Maitland says, the question as to what the jurisdictional YUgh. 
 
 competence of the Council was at the time, and the relation Court of 
 
 in matters of Judicatiu-e between Council and the nascent ment. 
 
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82 ENGLISH LEGAL INSTITUTIONS 
 
 House of Lords. Every High Court must have a separate 
 set of Rolls. Leaving out of sight the Chancery, the 
 Exchequer, and the Itinerants, we may say that Henry III 
 had two courts, the Bench with the 'de banco rolls,' the 
 King's Court with the ' coram rege rolls.' This last foUows 
 the king about, and for ordinary purposes consists of pro- 
 fessional justices, while later the chief justice is definitely 
 appointed to hold pleas before the king, but on occasion it 
 could be reinforced by^the king's councillors, barons, and 
 earls. This body is superior to ' the Bench,' for ' error ' 
 lay to it from ' the Bench.' But a new set of plea RoUs 
 begins to appear, not purely for pleas, for we find that 
 petitions and other things are on it. The court which is 
 to be above the King's Bench is being evolved, and its 
 Rolls are the Parliament RoUs. For a time it is hardly 
 distinguishable from the King's Bench. It is really an 
 afForced form of the King's Bench, and this is made certain 
 by our finding that a plea may be adjourned from a Parlia- 
 ment to the King's Bench or vice versa without breach of 
 continuity. 
 
 Thus two tribunals become three : Bracton knows two ^. 
 Fleta knows three ^: 'justices resident at the bench,' 'jus- 
 tices who fill the king's own place,' and another, 'habet 
 enim rex curiam suam in consilio suo in parliamentis suis, 
 praesentibus praelatis, comitibus, baronibus, proceribus, et 
 aliis viris peritis ubi terminatae sunt dubitationes iudiciorum 
 et novis iniuriis emersis nova constituuntur remedia, et uni- 
 cuique iustitia, prout meruit, retribuetm- ibidem.' 
 
 It is useless to ask if this is Council or House of Lords. 
 It is the King in Council ; it is the King in Parliament, for 
 its sessions are parliaments. 
 
 ITie King- The future settled that the highest court of ordinary 
 should be the King in Parliame: 
 
 ^ f. 108. " p. 66. 
 
 mentand jurisdiction should be the King in Parliament, and this 
 
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THE ENGLISH JUSTINIAN 83 
 
 should mean the House of Lords, and should be mainly the King 
 a court of error, and that the King in Council should dis- ^jj 
 pense extraordinary justice, both civil and criminal, on a large 
 scale. Whether the elastic and extraordinary nature of the 
 Council jiu-isdiction was cause or effect, it is noticeable that 
 the Parliament keeps a proper Latin plea roll and the 
 Coimcil keeps none, and this was alleged as a ground of 
 complaint against the Star Chamber by the Act which 
 abolished it\ 
 
 Long ago the Parliament Roll left the custody of the 
 Council to become the record of the estates of the realm, 
 and those who used to be official members of the Council, 
 such as the judges, and who are still summoned to Par- 
 liament without being peers of the realm, attend as * mere 
 assistants' without a vote, and they must not speak unless 
 asked. 
 
 But at this moment this third great court partakes of the 
 nature of House of Lords, Council, and King's Bench. It 
 is an affiarced form of the King's Bench, yet superior to it ; 
 it is sometimes a coiu-t of first instance, though why is a 
 matter of speculation in each particular case. It is con- 
 sulted when new remedies are required by the Chancellor, 
 and, if the passage in Fleta means anything, its jurisdiction 
 was what we should call equitable, foreshadowing the jurisdic- 
 tion of the Council's important legal official, the Chancellor. 
 
 The period is important and interesting, for the moment Parlia^ 
 
 when petitions divide into those which are entered on the Council 
 
 Parliament Roll, and those which are not, is the moment l^egin to 
 
 separate, 
 when the functions of Parliament and Council begin to 
 
 differentiate themselves ; the King in Parliament is the 
 
 Legislature, the King in Council is the Executive, and the 
 
 depositary of extraordinary royal justice. 
 
 1 16 Car. I, c. 10. 
 
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CHAPTER XI 
 
 THE COURTS OF COMMON LAW 
 
 As in the reign of Edward I the administration of the 
 common law took the shape which it kept till the Judicature 
 Act of 1873, it will be convenient briefly to sketch the 
 functions and fortunes of the superior courts. Though the 
 establishment of the Common Pleas at Westminster relieved 
 parties from the expense of travelling about after the King's 
 Court, yet they had to come up to Westminster: so by 
 the Statute of Westminster II litigants were permitted to 
 prosecute and defend their suits by an attorney, or as we 
 should say nowadays by a solicitor^. The King's Bench 
 could always be directed to accompany the king, and thus 
 we find that while writs in the Common Pleas were made 
 retiurnable at Westminster, those in the King's Bench were 
 returnable ' before the king himself wherever he should then 
 be in England.' Once the court followed Edward to Scotland 
 and sat at Roxburgh. The Exchequer, for obvious reasons 
 of convenience, very soon sat only at Westminster, and the 
 King's Bench shortly followed the example. 
 
 These two courts having become stationary, but having no 
 jurisdiction over purely civil cases, which were the province 
 of the Common Pleas, commenced to poach on this well- 
 stocked preserve, — ' boni iudicis est ampliare iiurisdictionem,' 
 and virtue was suitably rewarded by court fees. 
 
 ' 13 Edw. I, c. 10. 
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THE COURTS OF COMMON LAW 85 
 
 The Exchequer employed the wrft of Quominus, in which 
 the plaintiff, who desired his case tried in the Exchequer, 
 suggested that he was the king's debtor, and that the de- 
 fendant had done him an injury, ' quominus sufficiens existit ' 
 to pay the king his debt. The allegation of a king's debt 
 was a mere fiction, but it was not allowed to be contradicted, 
 and it was held that this circumstance made the action 
 a revenue matter, properly cognizable in the Exchequer. 
 This writ was a capias, and on it the defendant could be 
 arrested and brought into the Exchequer. The writ was as 
 follows : — 
 
 ' George II, by the grace of God, of Great Britain, The Writ 
 France, and Ireland, King, Defender of the Faith and o^.Qio- 
 so forth, to the Sheriff of Berkshire greeting. We 
 command you that you omit not by reason of any 
 liberty of your county, but that you enter the same, 
 and take Charles Long, late of Burford of the county 
 of Oxford, gentleman, wheresoever he shall be found in 
 your bailiwick, and him safely keep so that you may 
 have his body before the barons of our Exchequer at 
 Westminster on the morrow as hereby directed to 
 answer WiUiam Burton our debtor of a plea that he 
 render to him £200 which he owes him and unjustly 
 . detains, whereby he is the less able to satisfy us the 
 debts which he owes us at our said Exchequer, as he 
 saith he can reasonably show that the same he ought 
 to render: and have you there this writ. Witness, 
 Sir Thomas Parker, Knight, at Westminster, the sixth 
 day of May in the twenty-eighth year of our reign.' 
 
 To which the sheriff makes a return : ' By virtue of 
 this writ to me directed I have taken the body of the 
 within named Charles Long, which I have ready before 
 the barons within written, according as within it is 
 commanded me.' 
 
 The King's Bench employed the writ of Latitat. The 
 Court of King's Bench had an original jurisdiction in tres- 
 
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86 ENGLISH LEGAL INSTITUTIONS 
 
 passes ' vi et armis,' committed in Middlesex or in whatever 
 county the court happened to sit, such trespasses being 
 considered to be of a criminal nature and to demand a speedy 
 remedy. The plaintiff therefore, who desired to bring a civil 
 action, say for debt, in the King's Bench, took out what was 
 called a bill of Middlesex, alleging in it trespass 'vi et armis.' 
 In it, the sheriff was directed to take the defendant and to 
 have him before our lord the king at Westminster to answer. 
 Once the defendant was in the custody of the marshal of the 
 King's Bench he was considered to be before the court for 
 aU pm-poses and could be proceeded against by bill for debt 
 which made it unnecessary to take out an original writ as 
 was the proper course on such a cause of action. 
 
 In time it was considered enough that the defendant 
 should appear or give bail, and actual custody was not 
 required. If the sheriff of Middlesex could find the de- 
 fendant, well and good, he produced him in court : should 
 the defendant be living in Berkshire, that made no difference, 
 the sheriff made the return 'Non est inventus,' and then 
 came the writ of Latitat addressed to the sheriff of Berkshire 
 where the defendant lived, reciting the bill of Middlesex 
 and the proceedings thereon, and that it is testified that 
 the defendant 'latitat et discurrit' in Berkshire, and com- 
 manding the sheriff to have his body in court on the day 
 of the return. 
 
 Many complaints arose that persons were arrested on these 
 Bills and Latitats which did not express any particular cause 
 of action, and were kept long in prison for want of bail, 
 bonds with sureties having been demanded in such great 
 sums that few dared to be security to such an amount, 
 although there were little or no cause of action. Accord- 
 ingly the Statute 13 Car. II, st. 2, c. 2, provided that the 
 true cause of action should be expressed in the writ, else the 
 person arrested should be bailed and no security for appear- 
 
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THE COURTS OF COMMON LAW 87 
 
 ance should be taken in a greater sura than £40. To meet 
 this difficulty the King's Bench added an ' ac etiam ' clause 
 to the usual complaint, thus if the plaintiff wished to sue the 
 defendant for debt he alleged first of all the trespass ' vi et 
 armis,' and then added the 'ac etiam'' clause in which 
 the debt was mentioned, as though it was subsidiary to the 
 fictitious claim. 
 
 ' Middlesex to wit : — The sheriff is commanded that The 
 he take Charles Long, late of Burford in the county S-ij^ 
 of Oxford, if he may be found in his bailiwick, and him sex. 
 safely keep so that he may have his body before the 
 lord the king at Westminster on Wednesday next after 
 fifteen days of Easter to answer William Burton, gentle- 
 man, of a plea of trespass (and also to a bill of the said 
 William against the aforesaid Charles for £200 of debt 
 according to the justice of the said coiu-t of the said 
 lord the king before the king himself to be exhibited) 
 and that he have there then this precept.' 
 
 The sheriff's return : ' The within named Charles Long 
 is not found within my bailiwick.' 
 
 ' George II, by the grace of God the Lord of Britain, The writ 
 France, and Ireland, the King, Defender of the Faith "^ latitat. 
 and so forth, to the Sheriff of Berkshire greeting. 
 Whereas we lately commanded our sheriff of Middlesex 
 that he should take Charles Long, late of Burford in 
 the county of Oxfordshire, if he might be found in his 
 bailiwick, and him safely keep so that he might be 
 before us at Westminster, at a certain day now passed, 
 to answer unto William Burton, gentleman, of a plea of 
 trespass (and also to a bill of the said WiUiam against 
 the aforesaid Charles for £200 of debt according to 
 the custom of our court before us to be exhibited) and 
 our said sheriff of Middlesex at that day returned to us 
 that the aforesaid Charles was not found in his bailiwick, 
 whereupon on behalf of the aforesaid William in our 
 court before us, it is sufficiently attested that the afore- 
 
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88 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Uniform- 
 ity of Pro- 
 cess Act. 
 
 The 
 King's 
 Bench : 
 its super- 
 visory 
 powerSj 
 and 
 methods. 
 
 said Charles lurks and runs about in yoiu; county, 
 therefore we command you that you take him, if he 
 may be found in your bailiwick, and him safely keep 
 so that you may have his body before us at Westminster 
 on Tuesday next after five weeks of Easter, to answer to 
 the aforesaid William of the plea (and bill) aforesaid, 
 and have you there then this writ. Witness,' &c. 
 
 On which there comes the sherifTs return : ' By virtue 
 of this writ to me directed I have taken the body of the 
 within named Charles Long which I have ready at the 
 day and place within contained according as by this 
 writ it is commanded me.' 
 
 Thus, these two courts obtained a jurisdiction coextensive 
 with that of the Common Pleas in personal actions. 
 
 This state of things lasted till 1832, when the Uniformity 
 of Process Act, 2 WiU. IV, c. 39, abolished this variety and 
 multiplicity of process, but recognized and confirmed the 
 co-ordinate jurisdiction. 
 
 The King's Bench presided over the administration of the 
 criminal law. There was and is no offence not triable there. 
 It superintended the other tribunals, employing the writs of 
 mandamus, prohibition, certiorari, and error. 
 
 The writs of Mandamus and Prohibition issued, and issue 
 still, when either justice is delayed by an inferior court that 
 has proper cognizance, or such inferior court takes upon itself 
 to examine a cause and decide the merits without legal 
 authority. In the first case a writ of Mandamus is issued. 
 'This is a prerogative writ flowing from the king himself 
 sitting in the Court of the King's Bench, superintending the 
 police, and preserving the peace of the country ^.' It issued 
 from the King's Bench, and was a command directing any 
 person, corporation, or inferior court of judicature in the 
 king's dominions to do some particular thing therein specified 
 
 > Per Lord Mansfield, B. v. Barker, 1 A^. Bl., 352. 
 
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THE COURTS OF COMMON LAW 89 
 
 appertaining to its office or duty, which the Court of King's 
 Bench supposes to be consonant to right and justice, where 
 the performance of the duty sought to be enforced could 
 not be compelled by action. An order nisi issues in order 
 to give the other side an opportunity of showing cause why 
 a mandamus should not issue. There was a similar writ 
 'procedendo ad indicium' which issued from Chancery for 
 delay in giving judgement returnable in the King's Bench 
 or the Common Pleas. It did not direct any particular 
 judgement to be given, for an erroneous judgement may be 
 set aside on appeal, but some judgement must be given 
 without further hesitation. Disobedience is punished by 
 attachment, and committal for contempt. 
 
 Edward by the grace of God, &c. to . . of . . greeting. The writ 
 Whereas by . . (recite act of Parliament, &c.) and ofMan- 
 whereas we have been given to understand, and are 
 informed in the King's Bench Division of the High 
 Court of Justice before us that . . (insert averments) 
 and you the said . . were then and there required by . . 
 (insert demands), but that you the said . . well knowing 
 the premises, but not regarding your duty in that behalf, 
 neglected and refused to . . &c., we . . do command you 
 . . firmly enjoining you that you, &c. 
 
 A ' prerogative' writ is one which does not issue like others 
 of strict right, but at the discretion of the sovereign acting 
 through that court in which he is supposed to be present, 
 and only issues from the King's Bench Division ^. 
 
 In the second case the writ of Prohibition is employed. The writ 
 This is a prerogative writ which issued properly out of the j^jijiyon. 
 King's Bench, but for the furtherance of justice in some cases 
 out of Chancery, Common Pleas or Exchequer, but return- 
 able only in the King's Bench or Common Pleas, now the 
 King's Bench Division, directed to the judge and parties of 
 a suit in any inferior Court, commanding them to cease 
 
 ^ Per Manisty J., B. v. Lamboume, Sjc. By. Co., 22 Q. B. D. 469. 
 
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90 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 The writ 
 of Pro- 
 hibition 
 to an ec- 
 clesiasti- 
 cal court. 
 
 The writ 
 of consul- 
 tation. 
 
 from the prosecution thereof, on the suggestion that either 
 the cause originally or some collateral matter arising therein 
 does not belong to that jurisdiction, but to the cognizance of 
 some other court. 
 
 Since the Judicature Acts an appeal lies from every order 
 of the High Court of Justice to the Court of Appeal, and 
 thence to the House of Lords, but till then the only method 
 of questioning the propriety of a prohibition was by the 
 issue of a writ of Consultation under the Statutum de Con- 
 sultatione 24 Ed. I, for it was held that in such a case a writ 
 of error did not lie either to the Exchequer Chamber ^ or to' 
 the House of Lords ^. 
 
 If the judge to whom the prohibition went thought it iU 
 founded, he consulted with the king's justices, and if it 
 appeared to the court that it ought not to have issued, a 
 ' consultation " was awarded, signifying to the inferior court 
 that it might lawfully proceed. 
 
 ' Rex, &c. iudicibus eeclesiasticis salutem. Prohibeo 
 vobis ne teneatis placitum in curia christianitatis quod 
 est inter M. et R. de laico feodo predicti R. unde ipse 
 queritur quod M. eum trahit in placitum in curia 
 christianitatis coram vobis, quia placitum illud spectat 
 ad coronam et dignitatem meam.' 
 
 'Dilecto in Christo tali. Inspectis litteris vestris, 
 quas nobis transmisistis et plenius intellectis^ (sine 
 praeiudicio melioris sententiae) consultationi vestrae 
 duximus respondendum, quod si res ita se habet sicut 
 in consultatione vestra exposuistis videtur nobis quod 
 in causa ista bene potestis procedere non obstante regia. 
 prohibitione.' 
 
 If the judges did not obey they were summoned to the 
 King's Court to answer. 
 
 ^ Free v. Burgoyne, 6 B. & C. 766. 
 
 ^ Bishop of St. David v. Lucy, 1 Lord Raym. 639. 
 
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THE COUNTS OF COMMON LAW 91 
 
 ' Rex vicecomiti salutem. Prohibe iudicibus — ne te- 
 neant placitum . . . Et summone per bonos summoni- 
 tores ipsos indices quod sint coram me vel iustitiis meis 
 ostensuri quare placitum illud tenuerunt,' &c. Glan., 
 Lib. 4, cc. 13-14. 
 
 The modern form is as follows : — 
 
 ' Edward, by the grace of God, &c. to [the Iceepers of 
 Our peace and Our justices assigned to hear and determins 
 divers crimes, trespasses, and other offences committed 
 within Our County o/" . . . J greeting. 
 
 Whereas We have been given to understand that you 
 
 the said [jiistices have entered an appeal by A. B. against 
 
 etc.]. And that the said . . has no jurisdiction to hear 
 
 and determine the said . . by reason that [here state 
 
 facts showing want ofjurisdiction^ 
 
 We therefore hereby prohibit you from further pro- 
 ceeding in the said . .' 
 
 Witness, &c. 
 
 ' Thus careful has the law been in compelling the inferior 
 courts to do ample and speedy justice : in preventing them 
 from transgressing their due bounds, and in allowing them 
 the undisturbed cognizance of such causes as by right founded 
 on the usage of the Kingdom or an Act of Parliament do 
 properly belong to their jurisdiction ^.' 
 
 The writ of Certiorari issues to judges or officers of inferior Writ of 
 jurisdictions from the King's Bench, now^ the King's Bench ^^^tio- 
 Division of the High Court, to certify or send proceedings 
 before them into the King's Bench Division, whether for the 
 purpose of examining into the legality of such proceedings, 
 or for giving fuUer or more satisfactory effect to them than 
 
 ^ BL, Comm., iii. 114. ^ Judicature Act, 1873, § 34. 
 
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92 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Writ of 
 Certio- 
 rari to 
 remove 
 Indict- 
 ment into 
 King's 
 Bench 
 Division 
 from 
 Assizes. 
 
 could be done by the court below. It also issues from the 
 House of Lords, on motion there, for removing thither an 
 indictment for felony found by a grand jury against a Peer^, 
 It can also be used for removing indictments found at 
 Quarter Sessions in London, Westminster, Southwark, 
 Middlesex, Essex, Kent, and Siurey, into the Central 
 Criminal Court, and for removing indictments from any 
 Court of Session Assize (including the Central Criminal 
 Court), Oyer and Terminer, a gaol delivery or any other 
 court into the King's Bench Division on the Crown side. 
 The Crown can demand this writ of absolute right, the 
 subject obtains it at the discretion of the court. The 
 grounds on which it is granted are that a fair and impartial 
 trial cannot be had in the court below, that questions of law 
 of unusual difficulty may arise, or that a special jury may 
 be required for a satisfactory trial. 
 
 'Edward by the grace of God &c. to Our justices 
 of Oyer and Terminer, in and for Our County of Oxford, 
 and to every of them greeting : We being willing for 
 certain reasons that all and singular indictments of what- 
 soever felonies [or misdemeanours] whereof A. B. is or 
 may be before you indicted (as is said) be determined 
 before us in the King's Bench Division of our High 
 Court of Justice, and not elsewhere, do command you, 
 and every of you, that you or any of you do forthwith 
 send under your seals, or the seal of one of you, before 
 us in Our said Court at the Royal Courts of Justice, 
 London, all and singular the said indictments, with all 
 things touching the same by whatsoever name the said 
 A. B. may be called therein, together with this Our 
 Writ, that We may cause further to be done thereon 
 what of right and according to the law and custom of 
 England We shall see fit to be done.' 
 
 Witness, &c. 
 
 1 Trial of Earl Russell. Before the King in Parliament, 1901, 
 A. C. 446. 
 
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THE COURTS OF COMMON LAW 93 
 
 The * writ of error ' issued either on the suggestion of some The writ 
 fact which affects the validity of the action, as for instance, ^'^'■•"^• 
 that the unsuccessful party was an infant and appeared by 
 attorney, or on some error in point of law, apparent on the 
 face of the proceedings; or in other words, error on the 
 record. Errors in law from the Common Pleas were taken 
 to the King's Bench till 1830. 
 
 The Exchequer declined in 11 Ed. Ill to send their record The Court 
 to the King's Bench on the ground that the Exchequer had "hequer 
 always amended its own error with some outside assistance. Chamber 
 This position they maintained, but they failed to prove their Scacc). 
 independence of the Curia Regis. By the 31 Ed. Ill, st. 1, 
 c. 12, the Lord Chancellor and the Lord Treasurer, asso- 
 ciating with themselves Judges and other learned persons, 
 were directed, on complaint of error in the Exchequer, to 
 call before them the Barons of the Exchequer with the record, 
 and amend the error, if any. This was the first court of 
 Exchequer Chamber. By the 27 Eliz, c. 8, a second court 
 of judges of the Common Pleas and of the Exchequer was 
 formed to review certain judgements in the King's Bench, 
 other judgements going direct to the House of Lords; and 
 by the 11 Geo. IV, 1 Will. IV, c. 70, writs of error upon any 
 judgement given by the King's Bench, the Common Pleas, or 
 the Exchequer shall be only returnable in the Court of 
 Exchequer Chamber, before the judges of the other two 
 courts. From that court appeal lay to the House of Lords, 
 which represents the old Curia Regis. 
 
 The Common Law Procedure Act, 1852, abolished the 
 writ of error in actions in the Superior Courts and a memo- 
 randum in error was substituted ; that again was abolished 
 by the rules imder the Judicature Acts ^, and an appeal in 
 the full sense provided instead. 
 
 ' O. 58. 
 
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94 ENGLISH LEGAL INSTITUTIONS 
 
 Writ of The writ still exists as part of the Criminal Law \ but 
 
 criminal °"^y where some irregularity apparent upon the record of 
 cases. the proceedings takes place in the procedure. It issues 
 
 from the Crown Office ^ on the fiat of the Attorney- 
 General, and is directed to the judge of the inferior court, 
 requiring him to send the record and proceedings of the 
 indictment, inquisition, or information, on which judge- 
 ment has been pronounced, and in which error is alleged, to 
 be ' inspected, viewed, and examined,' to the court authorized 
 to review the same. That court may examine the record, 
 and affirm or reverse the judgement according to law. The 
 judgement must be on an indictment and given in a Court of 
 Record. 
 
 By this means, a criminal appeal of this limited kind can 
 be taken to the Court of Appeal and thence to the House of 
 Lords, as in the case of Castro v. TTie Queen ^. 
 
 The At the present day the judge who goes on circuit sits 
 
 Courts o ^^jj(jgj. three commissions: (1) the commission of General 
 NisiPrius. Gaol Delivery, in virtue of which he clears the gaol of all 
 persons awaiting trial ; (2) of Oyer and Terminer, in virtue 
 of which he tries those criminal cases in which the grand jury 
 have found a true bill ; (3) the commission of Assize, which 
 is a survival of the old commission empowering the judge to 
 take the verdict of that special sort of jury called an Assize, 
 summoned for the trial of certain issues (vide supra), to which, 
 by Stat. West. II. c. 30, is annexed the commission of Nisi 
 Prius. Before the Nisi Prius writ was invented, if the 
 plaintiff had an action in Oxfordshire, he had to come up to 
 London to try it, and bring his witnesses, the sheriff of the 
 county being directed by a writ of venire facias to bring up 
 an Oxfordshire jury ; when the Statute empowered the judges 
 
 ^ For the history of the writ of error in criminal cases^ see Lord 
 Mansfield's judgement in Wilkes case (4 Burr. 2550). 
 « R. S. C. 31 Jan. 1889. » 6 Ap. Cas. 229. 
 
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THE COURTS OF COMMON LAW 95 
 
 of Assize to try other issues in the counties, the writ was 
 altered, and the sheriff was directed to bring up the twelve 
 lawful men from Oxford to try the Oxfordshire case in 
 London, unless before the date specified, the justices of the 
 king had come into that county, 'nisi prius ad partes illas 
 venerint,' in which case the justices tried the cause in Oxford, 
 and spared everybody the trouble of coming to London. 
 The amended form of the writ was : ' Praecipimus tibi quod 
 venire facias coram iusticiariis nostris apud Westmonasteriam 
 in Octabis Sancti Michaelis, nisi talis et talis tali die et loco 
 ad partes iUas venerint, duodecim legales homines, &c.^,' in 
 which case it was his duty to return the jury, before the 
 judge of Assize. By the 27 Ed. I, c. 3, the justices of Assize 
 were made commissioners of gaol delivery. By the 2 Ed. Ill, 
 c. 2, they were made commissioners of oyer and terminer. 
 Since the Judicature Act of 1873 the judge acting under 
 these commissions is ' a court of the High Court of Justice ^,' 
 which means that he is not limited by the terms of his 
 commissions, but that he can do anything that a judge sitting 
 in the Royal Courts of Justice can do. Before the Act a 
 mandamus could issue to him if he refused to perform an 
 obligatory duty ^. 
 
 1 13 Edw. I, c. 30, § 1. 2 36 & 37 Vict. c. 66, § 29. 
 
 2 R. V. Sarland, 8 A. & E. 826. See, however, the judgement of 
 Willes J. in Ex parte Fernandez, 10 C. B. N. S. at p. 49. 
 
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CHAPTER XII 
 
 THE HIGH COURT OF PARLIAMENT, THE HOUSE 
 OF LORDS, AND THE COURT OF THE LORD 
 HIGH STEWARD. 
 
 The High 
 Court of 
 Parlia- 
 ment. 
 
 Common 
 law ap- 
 peals. 
 
 We have already seen that in the reign of Edward I 
 a court is being evolved which may be considered as higher 
 than the King's Bench or as an ' afforced ' form of the King's 
 Bench. But it is presently recognized as distinct, 'habet 
 Rex curiam suam in consilio suo in parliamentis suis . . . ubi 
 terminatae sunt dubitationes iudiciorum.' The Curia Regis, 
 of which Parliament is the representative, being always 
 a court of final resort, as well as in some cases a court of 
 first instance, this is a restatement of an accepted constitu- 
 tional position. The King in Council in Parliament super- 
 vised the inferior courts. 
 
 The system of appeal was as follows. Error in the Common 
 Pleas went to the King's Bench. The judgements of the 
 Chancellor in his capacity as a Common Law judge could be 
 examined and reversed on a writ of error in the King's Bench, 
 the last instance occurring in the fourteenth year of Eliza- 
 beth ^ The Exchequer maintained its independence of the 
 King's Bench, but by statute was directed to produce its 
 record before a Committee of the King's Council ^. 
 
 ' Dyer, 315, No. 100. 
 
 * Vide supra, p. 93. 
 
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THE HIGH COURT OF PARLIAMENT 97 
 
 By 14 Ed. Ill, st. 1, c. 5, a Committee of Council is 
 empowered on complaint of delay to summon any justices 
 and make a judgement; special difficulties to be kept for 
 the next Parliament. 
 
 When the Council split off from Parliament in the reign The juris- 
 of Richard II, the jurisdiction remained in the House of Qf^}^f. 
 Lords. The question had been considered, for in Rot. Par. House of 
 50 Ed. Ill, no. 48, the unanimous opinion of the judges appeals at 
 as to Common Law appeals is entered, that when error 
 occurred in the King's Bench it should be amended in 
 Parliament — by the King in Council in Parliament. The Common 
 argument was that the Council was excluded for Council was 
 not Parliament, and the Commons were excluded for they 
 were not Council. This view the Commons accepted in the 
 first year of Henry IV. 
 
 The Lords' jurisdiction in Chancery appeals was of slow ani Chan- 
 growth, for equitable jurisdiction itself grew slowly. No in- 
 stance is known before 1621 when the Lords heard Sir John 
 Bcmrchier's case, and a Committee of Privileges considered 
 that the course then taken was unusual if not incorrect. 
 
 In 1640 Lady Moulson's petition for the reversal of 
 a decree was referred to the Committee of Petitions. 
 
 In 1675 the appellate jurisdiction was disputed by the 
 Commons but without success, and since then has not been 
 questioned. 
 
 When the Council separated from Parliament, and the As a court 
 
 of £1781 
 
 Chancellor and the Common Law Courts were in fuU work, instance, 
 there was little room for the House of Lords to act as 
 a court of first instance. 
 
 In 1668 occiured the case of Skirmer v. the East India 
 Company. The plaintiff petitioned the King, alleging that 
 as the injury had been committed in India he could get 
 redress in no other Court. The Lords undertook the trial, 
 
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98 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 In crimi- 
 nal cases. 
 
 and gave judgement for the plaintiff. The Company then 
 petitioned the Commons and a violent dispute was the result, 
 which was only composed by the King acting as mediator, 
 and all records of the proceedings were erased from the 
 journals of both Houses. Since then the Lords have never 
 acted as a court of first instance in civil cases. Only the 
 House of Lords can try questions of right in matters of 
 peerage or dignities connected therewith ^- 
 
 The criminal jurisdiction of Parliament may probably be 
 now considered of only historical interest. Should it, how- 
 ever, be again invoked, it inheres in and is exercised by the 
 House of Lords. 
 
 That jurisdiction may be exercised on two occasions. 
 A Peer has the right if indicted for treason or felony to be 
 tried by his peers : and the House of Commons has the right 
 to impeach any person for any offence, before the House of 
 Lords sitting as judges. 
 
 Trial iy the Peers. 
 
 Its origin This right if it rest on any written authority rests on the 
 clause of Magna Charta in which occurs the famous phrase 
 ' indicium parium.' These words do not mean ' trial by jury,' 
 for at that time trial by jury was unknown. They were 
 used with reference to those cases in which the rights of 
 landholders over their land or to feudal services were in 
 dispute, and meant that the proper tribunal for determining 
 such cases was the pares curiae. A suit, for example, in 
 which a tenant in capite was defendant should properly 
 come before a court composed of other tenants in capite. It 
 is possible that we find here a note of resentment that the 
 causes of great men should be tried before the new fangled 
 royal justices who were, barring their wits, nobodies; but 
 the meaning is fairly obvious, for in c. 21 of the charter it is 
 
 ^ Omoley v. Cowley, 1901, A. C. 450. 
 
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THE HOUSE OF LORDS 99 
 
 expressly provided that no amercements in court are to be 
 enforced against Earls or Barons except by their Peers. 
 
 The iudkium parium had no direct reference to the 
 administration of criminal justice ; but as a conviction for 
 treason or felony involved the consequences of forfeiture and 
 escheat, it was very natural to desire that charges, at any rate 
 of treason and felony, should be tried by peers. No claim to 
 extend the right was ever seriously made. 
 
 In 1341 a Committee of Peers and Sages of the Law was and ex- 
 appointed to examine in what cases Peers should be bound *^'^*' 
 to answer in Parliament and in what cases not. It reported, 
 the Sages of the Law not assenting, that in all cases, not 
 merely treason or felony, where the King was a party, they 
 must answer in Parliament. An Act was passed accordingly 
 but was shortly afterwards repealed, with the result that the 
 clause in Magna Charta remains the sole written authority 
 for the right, and the more extensive claim has been allowed 
 to drop. 
 
 The question whether a peer can waive his privilege of 
 peerage must it seems be answered in the negative. The 
 privilege belongs to the House and not to the individual 
 peer. It is indeed doubtful if it is correct to use the term 
 'privilege' in this connexion, and whether the question is 
 not one of jurisdiction. Magna Charta said, ' Nullus liber 
 homo capiatur, &c., nisi per legale indicium parium suorum 
 vel per legem terrae,' and in c. 21 of the charter mentioned 
 above it is provided that no earl or baron shall be amerced 
 but by their Peers, and according to the manner of their 
 offence. 
 
 The Crown is thus prohibited from proceeding against the 
 Peer except by judgement of his Peers, and a statutable pro- 
 hibition cannot be waived. 
 
 Though there are some expressions in the early books of , 
 
 h2 
 
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100 ENGLISH LEGAL INSTITUTIONS 
 
 a doubtful character \ Sir Edward Coke is quite clear on the 
 point ^, and the same view has been adopted in a debate in 
 the House of Lords on the case of Lord Graves, by the 
 Lord Chancellor, Lord Fitzgerald, and Lord HerscheU *- 
 
 The procedure in Earl Russell's case was as foUows, 
 The Earl was arrested on June 17, 1901, and charged with 
 bigamy. Subsequently the grand jury found a true bill, 
 and the Recorder of London wrote to the House of Lords 
 informing their Lordships of the fact: the King issued 
 a Commission appointing the Earl of Halsbury, L. C, to 
 preside at the trial as Lord High Steward. On July 2 the 
 Earl was taken into custody by the Gentleman Usher of the 
 Black Rod, and it was moved in the House that the bill of 
 indictment found by the grand jury be removed before the 
 House by writ of certiorari. On July 18 the trial took place 
 before the Lord High Steward, there being also present 
 about 160 Peers, including all the Law Lords who generally 
 hear appeals, the President of the Probate, Admiralty, and 
 Divorce Division, and ten judges of the King's Bench and 
 Chancery Divisions. 
 
 The King's Commission, the writ of certiorari, the return 
 thereof, and the indictment having been read, Earl Russell 
 was called upon to plead guilty or not guilty. He pleaded 
 guilty, and was sentenced *. 
 
 Peeresses by birth or marriage are tried like peers. Coke 
 states the rule thus : — 
 
 * If a woman that is noble by birth doth many under 
 the degree of nobility, yet she shall be tried by her 
 peers, but if she be noble by marriage, and marry under 
 the degree of nobility, she loseth her dignity, for as by 
 
 » Rot. Pari., 15 Edw. Ill, 61 (132 b). 
 2 Inst., pt. iii. c. 2, pp. 29-30. 
 ' Hansard, 3rd series, vol. 310, p. 246. 
 * 1901, A. C. 446. 
 
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THE HOUSE OF LORDS 101 
 
 marriage it was gained, so by marriage it is lost, and 
 she shall not be tried by her peers ^.' 
 
 If Parliament is sitting the tribunal is the House of Lords The 
 presided over by the Lord High Steward who is appointed Lords^and 
 under the Great Seal ad hoc, and the Peers are the judges. 
 If Parliament is not sitting the court is the Court of the 
 Lord High Steward, he being appointed in the same manner. 
 
 The Court of the Lord High Steward dates from the first the Court 
 year of the reign of Henry IV. The Earl of Huntingdon in LordHigh 
 that year was tried before it on an indictment for treason Steward, 
 found before the Mayor and Justices of London, Parliament 
 not being in session. He was found guilty and sentenced to 
 be hanged and disembowelled alive ^, but oddly enough it is 
 uncertain what really happened to him, for next year there 
 is a declaration in Parliament by the Lords Temporal that 
 there should be a forfeiture of his lands, notwithstanding 
 that he had been beheaded by the King's lieges without due 
 process of law ^. 
 
 But in the reign of Henry VII the Court was fully 
 recognized as the Court which sat when Parliament was not 
 in session. 
 
 A curious fact is that whereas if Parhament was sitting how 
 all Peers could attend as judges, if Parliament was not sitting ' ®"°^' 
 the Lord High Steward could form his Court by summoning 
 only those Peers whose presence he desired. In the trial 
 of the Earl of Warwick in the reign of Henry VII only 
 twenty-two Peers were present; in the next reign the 
 Duke of Buckingham was tried before nineteen. The pre- 
 siding judge could thus pack the Court, down to the reign 
 of William IIL 
 
 ' Imt, pt. ii. c. 29. Tit. Magna Charta. 
 " Y. B. Mich., 1 Hen. IV, No. 1, fo. 1. 
 » Rot. Pari., 2 Hen. IV, No. 30. 
 
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102 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Recogni- 
 tion by 
 statute. 
 
 Partial 
 assimila- 
 tion of 
 the two 
 Courts. 
 
 The privilege was, as has been said, of feudal origin. 
 When the feudal doctrine broke down, as the feudal tenures 
 disappeared, a new doctrine of nobility by blood took its 
 place. The privilege was referred to nobility of blood rather 
 than to the possession of a seat in the House of Lords, and 
 it was enjoyed by Lords under age and by the Popish Lords 
 who were incapable of sitting there. 
 
 All statutes dealing with treason and felony saved this 
 privilege of the Peerage \ and the Court of the Lord High 
 Steward remained unchanged. 
 
 By 7 Will. Ill, c. 3, the jurisdiction in cases of treason 
 was conferred on the whole body of the Peers entitled to sit 
 and vote whether Parliament was m session or not. This Act 
 was not, however, to apply to impeachments, to trials for 
 counterfeiting the coin, the Seals, the Sign Manual, or the 
 Privy Signet. The privilege has been extended in some 
 particulars and confirmed by more recent statutes^. It is 
 the statutory duty of the Lord High Steward to summon all 
 Peers who are entitled to sit and vote twenty days before 
 the trial. He is the sole judge and decides all matters of 
 law ; the Peers attending act as a jury, and are called the 
 Lords Triers. The verdict is that of the majority, and to 
 procure a conviction there must be twelve who find the 
 accused guilty. The proceedings are on indictment found in 
 the ordinary course and removed by certiorari. 
 
 If we make an exception in favour of the treasons to which 
 the statute of William applies, it seems that if Parliament 
 were not in session, a Peer could be tried by the Coiut of the 
 Lord High Steward made up of a limited number of Peers. 
 
 1 33 Hen. VIII, c. 12 ; 36 Hen. VIII, c. 2 ; 1 Eliz. c. 1 ; 13 Car. II, 
 St. 1, c. 1. 
 
 2 2 & 3 Anne, c. 20 ; 6 Anne, c. 23 ; 6 Geo. IV, c. 66 ; 25 & 26 Vict, 
 c. 65. 
 
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COURT OF THE LORD HIGH STEWARD 103 
 
 If Parliament is sitting, any Peer, including those of 
 
 Scotland and Ireland, h£is a right, when indicted of high 
 
 treason, felony, or misprision, to be tried by Peers in the 
 
 House of Lords ; if Parliament is not sitting, in the Court 
 
 of the Lord High Steward. In the first event the spiritual The posi- 
 
 Lords can attend up to judgement, but they have never been s'°ritual 
 
 summoned to the Court of the Lord High Steward. The Lords, 
 
 1 • . . 1 and its ex- 
 
 reasons are historical. planation. 
 
 The clergy always contended that they were not amenable 
 to the ordinary courts of law, and that they were only bound 
 to answer in their own ecclesiastical tribunals, and they for 
 a long time made their contention good, although it is 
 doubtftil whether high treason was ever covered by ' benefit 
 of clergy ' : it certainly was not at a later date ^. Con- 
 sistently with this view a Bishop if arraigned for treason 
 never pleaded his peerage but pleaded his clergy. The 
 churchman claimed entire exemption from all secular juris- 
 diction whatever, and nothing less. 
 
 The Bishop of Hereford, in the seventeenth year of 
 Edward II, when arraigned in the King's Bench for treason, 
 pleaded his ' clergy,' which was allowed by Parliament on the 
 point being referred. 
 
 The Bishop of Carlisle, who was implicated in the Earl of 
 Huntingdon's treason, was indicted in the King's Bench; 
 he pleaded under protest of his ecclesiastical privileges, and 
 put himself on the jury and was convicted : but never pleaded 
 his peerage. 
 
 The Bishops had struggled to get rid of secular jurisdiction 
 and with this result. They had always rejected the right, 
 which, perhaps as holders in barony they may have had, of 
 being tried by Peers on an indictment. As the Church 
 could not consent to a judgement of blood, they were useless 
 
 1 2 Inst., 634. 
 
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104 ENGLISH LEGAL INSTITUTIONS 
 
 as judges in cases of treason and felony. When the Court 
 of the Lord High Steward was instituted, the claim of the 
 spiritual Lords to be Peers of the Realm was practically 
 extinguished. They never received a summons from the 
 Lord High Steward, for they could not pass sentence. In 
 trials in the House of Lords they were occasionally repre- 
 sented by a lay Peer as their proxy, which Littleton con- 
 sidered right and proper ; but whatever the difficulty was, no 
 Proctor was ever nominated for the Court of the Lord High 
 Steward. 
 
 In the reign of Henry VII they are kno^^oi as ' Lords of 
 Parliament ' and not as ' Peers of the Realm,' and when the 
 monasteries were dissolved and the Abbots disappeared, only 
 a beggarly remnant of bishops survived, without numbers 
 and without influence. 
 
 Cranmer when indicted put himself on a jury of Middlesex, 
 then withdrew his plea and pleaded guilty and never raised 
 the question. Since that trial it has never been suggested 
 that Bishops enjoy a trial by Peers of the Realm. 
 
 When the feudal tentu-es went, with them went the only 
 chance the Bishops had of recovering what they had so long 
 disdained. It is possible that if advanced in time a claim 
 resting on their tenure in barony might have been sustained. 
 But when the feudal tenures were abolished it was too late : 
 the temporal Peers retained their rights merely because the 
 Act which put an end to the tenures saved the benefit. 
 
 The Commons' Right of Impeachment. 
 
 Criminal proceedings by way of impeachment were taken 
 in the High Court of Parliament before the Lords as judges, 
 the Commons being then prosecutors, and appearing by 
 managers appointed for the occasion, who exhibit articles of 
 impeachment. The Lords vote individually and the majority 
 prevails. 
 
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THE COMMONS' RIGHT OF IMPEACHMENT 105 . 
 
 Before the reign of Henry IV the practice when a peer Procedure 
 was accused was extremely irregular and unsettled. Bracton ^"^^ ^^^ 
 apparently only knows of ' appeal ' as the method of accusa- 
 tion in such a case. Gaveston was not tried at all, but 
 beheaded by four earls acting under an Article of the Lords 
 Ordainers, which provided that he should be treated as a 
 public enemy if he returned from banishment. The Earl of 
 Carlisle, in the same reign, was degraded from his peerage 
 by a Commission, on the grovmd that his misdeeds were 
 notorious and that 'our Lord the King records the fact.' 
 He was then sentenced. 
 
 In 1304 Nicholas de Segrave was accused in Parliament 
 by the King and pleaded ' guilty,' and the King then con- 
 sulted the Comites, Barones, Magnates, and others of the 
 Council as to the punishment, but in the end pardoned 
 him\ 
 
 In the reign of Edward III procedure is still uncertain. 
 In the fourth year of the King, the peers, at the special 
 request of the King, heard the case of Simon de Bereford 
 accused of treason, and gave judgement, but protested that 
 they were not bound to try other persons than peers''. 
 
 In the same year. Sir Thomas Berkeley, being brought 
 before the King ' in full Parliament ' and charged with the 
 murder of Edward II, said that he was then lying ill 
 in another place and put himself 'de bono et malo super 
 patriam.' And the jury came ' coram domino rege in parlia- A jury in 
 mento suo ' and found in favour of the ' alibi ' : ' ideo idem ^^^^' 
 Thomas inde quietus' (1330 a.d.)*. 
 
 In 1376 (50 Ed. Ill) the case of Lords Latimer and 
 Neville and certain commoners occurred, and is frequently 
 referred to as the first instance of a genuine impeachment in 
 our sense. The Commons petitioned that the articles of 
 
 > 1 Rot. Pari., 172. = 2 Rot. Pari., 63. ^ Ibid., 67. 
 
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106 ENGLISH LEGAL INSTITUTIONS 
 
 impeachment should be heard by a commission of judges and 
 
 other lords in London and other suitable towns, to which the 
 
 King assented ^. 
 
 The Lords In 1387 we find that the Lords have abandoned the view 
 
 object to' *^^* *W ^^^ iiot bound to try commoners, for in an appeal 
 
 try com- of treason against the Archbishop of York and certain peers 
 
 and commoners they claimed the right to judge peers with 
 
 others in crimes against the State, and did so. This is 
 
 worthy of attention, as showing that the doctrine that 
 
 commoners could be impeached only for misdemeanours had 
 
 not yet appeared. 
 
 Ten years later (1397) the Commons claimed the right to 
 impeach any person when they pleased in Parliament, and 
 recorded their claim on the Parliament roll. The King 
 assented, and on the same day they impeached the Arch- 
 bishop of Canterbury. The King took time to consider, on 
 the ground that the Archbishop was a peer of the realm. The 
 Archbishop made a confession, which was adjudged in Parlia- 
 ment by the King, the Temporal Lords, and Thomas de Percy, 
 as proctor for the prelates and clergy ^, to be a confession of 
 treason. Sentence of banishment accordingly. 
 
 Appeals in In Richard IPs reign it was quite common for private 
 ment persons not members of Parliament to bring criminal accusa- 
 
 tions in Parliament on which proceedings were taken \ and 
 the practice culminated in a series of appeals and counter 
 appeals brought by the ministers of Richard II against each 
 other in Parliament for high treason as each party got the 
 upper hand. In consequence, the Stat. 1 Henry IV, c. 14 
 abolished, was passed which provided that henceforth no appeal should 
 
 1 Rot. Pari., 323-6, 329, 385. 
 
 ^ This procuration or proxy was resorted to in consequence of the 
 Commons complaining that judgements and ordinances had been in the 
 past annulled on the ground that the clergy had not on the particular 
 occasion been represented. 
 
 ' Steph.,2r. C. L. i. 151 sq. 
 
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THE COMMONS' RIGHT OF IMPEACHMENT 107 
 
 be pursued in Parliament; the only process which was left 
 for the judgement of a peer by peers is either by impeach- 
 ment or indictment, and that rule remains in force at the 
 present day. 
 
 The statute, however, placed no obstacle in the way of 
 a commoner ' appealing ' a peer. In such a case the appellee 
 was not tried by his peers but like any common person^. 
 If battle was waged in the appeal, it was a matter of 
 great public expectation, and the King provided weapons, 
 tents, and all the paraphernalia of a fight, and money for 
 the combatants to get whatever was requisite. In the 25th 
 year of Henry VI the Prior of Kilmaine appealed the Earl 
 of Ormonde of treason : the field of battle was prepared, but 
 the King at the instance of ' certain preachers and doctors ' 
 took the quarrel into his own hands. But all preparations 
 had been made. In the Proceedings and Ordinances of the 
 Privy Council we have the King's letter to Ormonde per- 
 mitting him to go for a time and stay near Smithfield ' for 
 your breathing and more ease,' and Philip Treher, fishmonger 
 of London, who had by the King's command been giving the 
 Prior a few lessons in 'certain points of armis,' was given 
 £20 by his Majesty^ for his pains. 
 
 With respect to impeachments against commoners it has 
 
 ' Y. B. Easter, 1 Ed. IV, No. 17, fo. 6. 
 
 ' Nicholas, vi. 129-40. Things did not always fall out so smoothly. 
 In the same year John Davy, an armourer's apprentice, appealed his 
 master William Catur of treason, and hattle was agreed and a day settled 
 by the Constable and Earl Marshal. We have the Kong's writ under 
 the Privy Seal to the Serjeant of the Armoury properly to arm the Ap- 
 pellant, and another letter from the King to Philip Treher, bidding him 
 be ' intendaunt and of counsaill ' to the said appellant. Seconds were 
 also appointed for the appellee. The battle took place at Smithfield. 
 ' The master being well beloved was so cherished by his friends and plied 
 so with wine that being therewith overcome was also unluckily slain by 
 his servant : but that false servant (for he falsely accused his master) 
 lived not long unpunished, for he was after hanged at Tyburn for felony. ' 
 Nicholas, vi. 65, 69 : and Stow's Chron. by Howes, p. 385. 
 
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108 ENGLISH LEGAL INSTITUTIONS 
 
 Impeach- been pointed out that the Lords at an earlier period were 
 com- iiot always consistent in the view they took, and Blackstone ^ 
 
 moners. Jajd jt down that a commoner could not be impeached but 
 for a misdemeanour. This position, which cannot be main- 
 tained now, is possibly, as Mr. Pike suggests, due to the fact 
 that between 1449 and 1621 there were no impeachments 
 at all, proceedings being taken by a Bill of Attainder, which 
 was usually introduced in the Lords, and this perhaps may 
 have obscured the right of the Commons to impeach a 
 commoner. 
 
 In Fitz-Harris's case^ the impeachment was for high 
 treason. The Lords refused to try him, and voted that the 
 proceedings should be at common law. The Commons there- 
 upon resolved that it was their undoubted right to impeach 
 any peer or commoner for treason or any other crime or 
 misdemeanoxu-. Parliament was speedily dissolved, and Fitz- 
 Harris was tried and convicted by a jury. This case was 
 perhaps prejudiced by the fact that the Lords knew that , 
 Fitz-Harris had already been arrested and was waiting his 
 trial in the ordinary comrse, and that if a bill had not been 
 already found against him it speedily would be. 
 
 In 1689, in the case of Sir Adam Blair and four other 
 commoners impeached for high treason, the Lords searched 
 for precedents and resolved that the impeachment should 
 proceed. 
 
 Law as to It remains to say that it was settled in Lord Davhy's case 
 mente"^' ^^^'^^^ (1) that a pardon by the Crown could not be pleaded 
 generally, in bar to an impeachment, a rule made statutory by the Act 
 of Settlement, and (2) that the Bishops, though they could 
 in a capital case be present and vote on all preliminary 
 questions, should not vote on the final question of guilty or 
 not guilty. By ancient custom the Bishops never voted on 
 
 ^ Comm., iv. 256. * 8 S. T. 236. 
 
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THE COMMONS' RIGHT OF IMPEACHMENT 109 
 
 a judgement of blood, and they were expressly excused by 
 the Constitutions of Clarendon. 
 
 ' Episcopi sicut caeteri barones debent interesse iudiciis 
 cum baronibus quousque perveniatur ad diminutionem 
 membrorum vel ad mortem.' 
 
 It is almost certain that neither prorogation nor dissolution 
 stops an impeachment. The doubts which were felt pro- 
 duced, on the occasion of the trials of Warren Hastings and 
 Lord Melville, special Acts of Parliament to that effect ^. 
 
 Although they cannot be considered as truly judicial pro- Bills of 
 
 ceedings, it is perhaps convenient, to allude here to the Bill and of 
 
 of Attainder and the Bill of Pains and Penalties. These are P^ins and 
 
 Penalties. 
 nothing more, when passed, than Acts of Parliament for 
 
 killing or otherwise punishing a man without trial. The 
 
 great advantage of proceeding by Bill of Attainder was that 
 
 thus it was possible to get rid of the difficulty, sometimes as 
 
 in Strafford's case insuperable, of proving that the person 
 
 whose death was desired had committed any legal offence 
 
 which woxild support the capital charge. 
 
 ^ 26 Geo. Ill, c. 96, and 45 Geo. Ill, c. 125. 
 
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CHAPTER XIII 
 
 THE KING'S COUNCIL 
 
 The Coun- 
 cil exer- 
 cises re- 
 siduary 
 justice, 
 criminal 
 and civil, 
 through 
 
 (1) the 
 Star 
 Chamher, 
 
 (2) the 
 Chancel- 
 lor, 
 
 (3) the 
 Court of 
 Requests. 
 
 It is only with the judicial functions of this great Court 
 that we are now concerned, and of these some account must 
 be given, and it may be convenient to say that the view 
 which will be presented in the following pages is that up 
 to the time of the Tudor monarchs, what is so familiar to 
 students of Sir H. Maine's works as 'the residuary royal 
 justice,' both civil and criminal, was administered by the 
 Council or the King in Council, and that although a line 
 of cleavage is becoming visible, yet that no actual and 
 permanent cleft occurred between the civil and criminal 
 work till the time of the Tudors, when the criminal side 
 became the province of that committee of the Council which 
 is known to us as the Comi; of Star Chamber, and the civil 
 side partly became the peculiar and separate jurisdiction of 
 the Chancellor and partly was exercised by the Court of 
 Requests. The generally accepted view is that the cleft 
 occurred much earlier, perhaps as early as the reign of 
 Richard II. It does not seem to me that this view is borne 
 out by the evidence that we have, but this is a matter of 
 opinion, and every one must judge for himself. 
 
 To judge from the records, the early Norman kings were 
 in matters of law and justice almost absolute. The king's 
 will was law, and his wiU was testified in affairs of state or 
 justice by parole or writing. It was not necessary that 
 
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THE KING'S COUNCIL 111 
 
 writing or a zvrit should be used, but it was inevitable 
 that this use should become universal, for thereby the royal 
 message could arrive precise and ungarbled at the most 
 distant part of the country. The authenticity of this mes- 
 sage was certified by the Royal Seal which was difficult to 
 imitate. 
 
 The Chancellor kept the seal, and with his clerks dis- The Chan- 
 charged the manual labour of writing the writs out and j t- ^t 
 sealing them. The writs were sealed on the marble table first secre- 
 at the end of Westminster Hall. The Chancellor, being 
 a domestic chaplain, lodged in the king's house; his clerks 
 lived together at a hospitium near at hand in Westminster, 
 and when the king travelled, they all went with him, and 
 a hospitium was set apart for them at every town where 
 they stopped, and the records were carried on the back of 
 a strong horse, which it was the duty of some religious house 
 to provide. 
 
 ' Memorandum quod decimo octavo die mensis lanuarii 
 quadraginta solidi (i. e. 40*.) quos abbas de Kingeswode 
 liberavit in canceUaria in subvencionem cuiusdam equi 
 emendi ad portandum rotulos cancellariae ' (Rot. Claus. 
 20 Ed. I, m. 11 d.). 
 
 But the Kings were not quite absolute. Even Kings are 
 not omniscient, and feudal monarchs were entitled to the 
 counsel and advice of their vassals. The immediate entourage 
 of the King consisted of those men on whose sagacity and 
 valour he habitually depended. These form the King's 
 Council. Under such conditions the right to demand 
 advice in difiiculties becomes in time barely distinguishable 
 from the obligation to accept or at any rate to ask for it. 
 
 The administration of justice is not only a matter of 
 difiiculty, but one in which all are interested, and as a fact 
 we find the Council consulted, informally no doubt, but 
 
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112 ENGLISH LEGAL INSTITUTIONS 
 
 consisted in some affairs which the King did not desire to 
 decide by himself ^. 
 
 The writs originally came from the King in Council, and 
 ran in any franchise, in Chester, Manchester, Wales, Ireland, 
 Poitou and Gascony. 
 
 A writ could be registered, and the clerk of the Chancellor 
 kept records, which were used for reference, and supplied 
 precedents. When a complainant came with some common 
 tale of injury which the clerks had heard before, all that was 
 needed was to turn up the record, and copy out the precedent, 
 of the remedial writ. Such a writ was what lawyers now 
 would call ' common form,' and what our ancestors called ' de 
 cursu.' We know that there was a considerable list of these 
 writs, for in the twelfth year of Henry III Letters Patent 
 went to Ireland giving the forms of fifty-one writs 'de 
 cursu ' then in force, which were in Ireland to go henceforth 
 under the seal of the Justiciar ^. 
 
 But if a complainant came with a grievance for which 
 there was no appropriate writ, it was not the clerks' business 
 to invent a writ, it was their duty to consult their betters. 
 
 His It is plain from the Provisions of Oxford (1258) that the 
 
 activity. Chancellor, whose duties were secretarial, had been taking 
 on himself the task of framing new writs, and that the 
 Council had observed this activity with disfavour. And 
 naturally, for they recognized that the man who can make 
 a legal writ can make a legal right. 
 
 Accordingly in the Provisions the following clauses occur : 
 ' The Chancellor of England swore this — 
 
 That he wiU seal no ^vrit, excepting writs of course, 
 
 ' Abbot Gausfrid v. Abbot of Marmoutier, PI. Ang.-Nor., 122; The 
 Case of Hugh Bigot's widow, ib. 230. 
 ^ Palgrave, The King's Council, 16. 
 
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THE KING'S COUNCIL 113 
 
 without the commandment of the King and of his Council 
 who shall be present.' 
 
 ' Of the Chancellor— 
 
 That he at the end of the year answer concerning his 
 time. And that he seal nothing out of course by the oole 
 will of the King. But that he do it by the Council which 
 shall be around the King ^.' 
 
 From this it is permissible to draw two conclusions, first. Council 
 that the Chancellor had, either on his own authority or asserted?^ 
 with that of the King, been sealing novel writs ; secondly, 
 that the Council was determined to assert or maintain its 
 supremacy over the qfflcina itistitiae, and to make it plain 
 that the royal authority was insufficient without Council 
 authority. 
 
 The Provisions of Oxford lived only six years, but that Unex- 
 short period seems to have been enough to check permanently P®''*® '^ 
 any development in the English common law. By statute 
 the clerks in Chancery were encouraged to issue writs 'in 
 consimili casu ^,' when ' in uno casu reperitur breve, et in con- 
 simili casu cadente sub eodem iure et simili indigente remedio 
 non reperitur,' the clerks are to agree in making a new one 
 or adjourn the question to Parliament. But it seems agreed 
 that the results were not such as might have been expected 
 if fuU advantage had been taken of the Act. It was after 
 all left for the Chancellor to take notice of those wrongs 
 for which the stifliiess and obstinacy of the common lawyers 
 refused a remedy. 
 
 Before the reign of Edward I, from absence of records, the Council 
 
 history of the King in Council is obscure; and even in ^ ^' 
 
 Edward's reign the line between Council, Parliament, and 
 
 Curia Regis is uncertain. 
 
 The hear- 
 Parliament was summoned, not merely for legislation or ingofpeti- 
 
 tions. 
 ' Stubbs, Sel Ch., 393, 395. = See Appendix 1. 
 
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114 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Special 
 Commis- 
 sions 
 
 not 
 popular. 
 
 taxation, but to discuss and hear all sorts of complaints. It 
 was the extraordinary court of Royal Justice. 
 
 If the common law was inefficacious, if the party pro- 
 fessed inability to sue, or said that he could not get a fair 
 trial by jury or ordinary process, he petitioned Parliament, 
 and we find all these allegations in petitions. 
 
 Most petitions referred to king's debts, or royal charters, 
 or to cases where royal rights, e. g. escheats and forfeitures, 
 were concerned, or where Ministers were alleged to be with- 
 holding rights which properly belonged to the subject. 
 
 The Council in Parliament seems to have delivered solemn 
 judgements, but until a comparatively late period the 
 Chancellor never exercised judicial functions unless by 
 authority of the Coimcil, and if acting ministerially he had 
 the assistance of his staff. 
 
 When complaint was made by petition of a private wrong, 
 where the ordinary methods were not speedy or effectual 
 enough, or in cases of extraordinary outrage, the Council 
 either summoned the parties before it, or issued a special 
 commission of Oyer and Terminer. 
 
 These commissions were of grace and favour, and could 
 issue from the King in person : but as a fact, frequently 
 and usually, the petition was presented to King and Council, 
 or to the Council, in or out of Parliament. Allegations are 
 made of petitioner's poverty, of the power of his enemies, 
 and of the inefficiency of the common law, and the offenders 
 are usually found amongst the baronage, who are accused of 
 gross outrages, assault and battery. 
 
 The answers are various : complainant must betake himself 
 to the ordinary course of law, or wait for the circuit of the 
 justices, or he may have a commission if he pays for it. 
 
 This irregular issue of special commissions was regarded 
 with great suspicion and disfavour, on the ground that it 
 
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THE KING'S COUNCIL 115 
 
 opened the door to abuse and oppression, and in consequence 
 it was provided by Stat, of West. II. 13 Ed. I, that 
 
 'A writ of trespass ad audiendum et terminandum 
 shall not be granted before any justices except justices 
 of either bench and justices in eyre, unless it be for 
 a heinous trespass, where it is necessary to provide 
 speedy remedy.' 
 
 In Rot. Pari., 8 Ed. 11, No. 8, vol. i, p. 290, we find that 
 the Commons allege that these commissions are being granted 
 too lightly and frequently. 
 
 So in 2 Ed. Ill, at the Parliament at Northampton, the 
 same complaint is made. 
 
 During Edward Ill's reign statutes were passed restraining 
 unnecessary applications to the King in Council, culminating 
 in 42 Ed, III, c. 3, that no man be put to answer before 
 justices without presentment or matter of record, or by due 
 process and writ original according to the old law of the 
 land, anything to the contrary to be void. 
 
 In 7 Ric. II the complaint is repeated, with the addition 
 that pursuers are not made to swear to the truth of their 
 allegations. 
 
 Apparently, in the reign of Henry III, the Council was Council 
 considered a court of peers within the meaning of Magna ^°™ 
 Charta, for the ascertainment of the rights of tenants in grows, 
 ' capite or by barony : it also had original jm^isdiction, temp. 
 Edward I and Edward II, in cases concerning the king. 
 In the time of the auditors of petitions, if a remainder was 
 in the king, actions brought against the tenant were often 
 stayed by the judges till the Council granted a writ de 
 procedendo. But even then the judges were often restrained 
 from giving judgement rege inconsulto. 
 
 ' Eit bref a les justiz q'ils aillent avant en teu plee 
 i2 
 
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116 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 but is 
 always 
 alleged to 
 be strictly 
 sub- 
 sidiary. 
 Writ ' ne 
 exeat 
 regno.' 
 
 Council 
 pro- 
 cedure. 
 
 nient centre esteant la dite allegeaunce; issi q'ils ne 
 aillent mie a juggement sanz conseiller le Roi ^.' 
 
 So the Council was the proper tribunal for trying many 
 of the king's ecclesiastical rights. Thus a suit in the King's 
 Bench relating to the king's free chapel of Boseham is stayed 
 that it may come before Council : — 
 
 'Nos ob certas causas coram nobis et consilio nostro 
 propositas volentes dictum negotium coram nobis et 
 dicta consilio nostro et non per alium processum &c. 
 terminari, Vobis mandamus quod processui &c. ulterius 
 faciendo omnino supersedeatis ^.' 
 
 In ordinary cases defendants were brought in on a writ 
 of scire facias. This civil jurisdiction was jealously watched 
 and often petitioned against, but without much success. 
 
 The Council claimed prerogative jurisdiction in cases of 
 fraud, deceit and dishonesty, which were not so tangible as 
 to give rise to a prosecution at common law. 
 
 Thus writs ne exeat regno went against fraudulent foreign 
 debtors who were making off and leaving their debts behind. 
 
 But still, with all these complaints, we find that in 
 27 Ed. Ill the first statute of praemunire was passed, 
 providing that if an appeal be made to the papal court, the 
 penalty of imprisonment during king's pleasure, forfeitm-e 
 of lands, goods, and chattels, was incurred by such appellants 
 as did not appear before the King and his Council or in his 
 Chancery, or before the justices of either Bench, to answer, &c. 
 From which we are at liberty to infer that the Commons 
 feared the Pope more than the Council. 
 
 The modes that the Council adopted of enforcing appear- 
 ance were not uniform, but it employed : — 
 
 (1) Commissions of oyer and terminer, and arrest after 
 verdict of jury. 
 
 1 Palg., p. 125. 
 
 CI. 29 Ed. Ill, m. 11. 
 
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THE KING'S COUNCIL 117 
 
 (2) 'Praemunire'' writs upon suggestions filed before 
 Council : — 
 
 ' Edwardus, &c., vicecomitibus London salutem. Qui- 
 busdam certis de causis vobis mandamus firmiter iniun- 
 gentes quod praemunire faciatis H. C. (& ofs) quod 
 quilibet eorum sub poena centum librarum in propria 
 persona sua sit coram consilio nostro apud W. hac 
 instanti die Martis ad loquendum cum eodem consilio 
 super iis quae eis tunc ibidem exponentur ex parte nostra 
 et ad faciendum ulterius et recipiendum quod per dictum 
 consilium ordinari contigerit in praemissis. Et hoc sub 
 incumbenti periculo nullatenus omittatis. Et habeatis 
 ibi nomina iUorum per quos eos praemunire feceritis et 
 hoc breve. Teste meipso, &c.' 
 
 (3) ' The writ of Subpoena.' Waltham could hardly have 
 invented it, for he was Master of the Rolls, 5 Ric. II, and the 
 first subpoena is fotmd in Rot. Pari., 38 Ed. Ill, pt. 1, m. 15 : — , 
 
 'Edwardus, &c., dilecto sibi Ricardo Spynk de Norwyco 
 salutem. Quibusdam certis de causis tibi praecipimus 
 firmiter iniungentes quod sis coram consilio nostro apud 
 Westmonasterium ... ad respondendum super hiis que 
 tibi obiicientur ex parte nostra, et ad faciendum et 
 recipiendum quod curia nostra consideraverit in hac 
 parte. Et hoc sub poena centum librarum nuUatenus 
 omittas. Teste me ipso apud W.' 
 
 The complaints continued, and in 2 Ric. II the Council TheCoun- 
 answer by saying that where the common law cannot have ofh^dhfe 
 its due course the Council may send for a man and put him to bail, 
 to answer for his misprision, and also compel him to give 
 surety by oath, or in other mamner as seems best for his good 
 beliaviour, and not to disturb the common law. 
 
 'J 
 
 Here we find an allusion to a very important point of 
 council authority, for when the law of frankpledge became 
 obsolete the justices of the peace acquired by their commission 
 a power to hold persons to bail for the preserving of popular 
 
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118 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Baronial 
 jealousy. 
 
 Parlia- 
 mentary 
 activity. 
 
 tranquillity : or a p^rty apprehending injury could sue out a 
 writ commanding sheriff or justices to take bail, and the names 
 of the manucaptors were thereon returned into Chancery. 
 . Then by a slight change the party gave bail in Chancery 
 in the first instance. The last step was that people called 
 before the Council for misdemeanours, &c., were required to 
 give bail either there or before the Coimcil in Chancery. 
 
 This power of holding to bail was a very powerfiil weapon. 
 Thus all the inhabitants of Bury entered into their individual 
 recognizances in ^flOjOOO not to assemble in any illegal 
 meetings nor commit any offence adjudged to be ' horrible ' 
 by the Council, the justices, or the law of the land. 
 
 By 17 Hie. II, c. 6, the Chancellor (in assent to a Com- 
 mons petition) is to give damages according to his discretion 
 against a complainant who has come before the Council and 
 has made an untrue suggestion, which was quite a novelty. 
 
 Then come more petitions, and the answer is always the 
 same. ' Yes : except in cases where one is poor, and other 
 is so rich that no remedy can be had.' 
 
 Meantime in 5 Ed. II a new tribunal was erected by the 
 Provisions of the Lords Ordainers. One bishop, two earls, 
 two barons are to be assigned in every Parliament to hear 
 and determine complaints against king's ministers. 
 
 This took much of the Council's jurisdiction away ; the 
 royal prerogative went to the baronage, and a baronial or 
 parliamentary committee took the place of a Council selected 
 by the king. These ' auditors ' had the authority of the 
 Council, though occasional reference was made to the Council 
 itself. 
 
 In Edward Ill's reign the movement proceeds ; the 
 administration of justice is held to be a matter peculiarly 
 suitable for Parliament, as opposed to Council, for they are 
 now becoming two distinct bodies. So far does it go that 
 the Commons attempt to participate in exercise of remedial 
 
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THE KING'S COUNCIL 119 
 
 justice ; but this was not persisted in, for in 1 Hen. IV they 
 protested that they had no concern with the judgements of 
 the House of Lords ^- But the power of the Lords in 
 Parliament steadily increased at the expense of the Council, 
 and the legal functionaries not being lords became merely 
 assistants and advisers of the peers, liable to give their 
 opinions when called on. 
 
 It is significant of the attitude of Parliament that in the The King 
 fourteenth year of Edward III a statute was passed dealing |^ ParSal 
 with the delays arising from judges differing and sending up ment. 
 for advice when Parliament is not sitting. A permanent 
 commission of Parliament is made to hear and make a judge- 
 ment, and send it down. At the meeting of every Parlia- 
 ment a prelate, two earls, and two barons are to be chosen, 
 who with the advice of Chancellor, Treasurer, Justices of the 
 two Benches, and others of the King's Council shall direct 
 the justices upon petition to them. Exceptional difficulties 
 to be reserved till the next Parliament. This represents the 
 King in Council in Parliament. 
 
 Under the two first Lancastrian kings we see signs of 
 activity in the Commons ; they had got hold of impeachment 
 as their special weapon in 1376 ^ and in 4 Hen. IV the writ 
 of subpoena is made to issue by authority of Parliament, upon 
 the petition of John Attewood and Alice his wife to the 
 Lords and Commons in Parliament*. 
 
 In Henry V's reign the Commons take notice of petitions Origin of 
 of private individuals to Lords or Council, which often were Xcte^of 
 granted in the form of statutes with the express assent of the Parlia- 
 whole legislature. Hence arose private Acts of Parliament *. 
 
 An interesting document that we find was a writ addressed 
 
 ' Rot. Pari., 1 Hen. IV, No. 79. 
 
 ' Impeachment of Lords Latimer and Neville and four commoners. 
 ^ See Palgrave, The King's Council, 71, for the petition with the 
 writ at the end of it. 
 * See Hallam, iii. 92. 
 
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120 ENGLISH LEGAL INSTITUTIONS 
 
 to the sheriff of a county, by and with consent of the 
 Commons, commanding him to make proclamations that the 
 party should come sometimes before the King's Council to 
 answer such matters as should be alleged against him \ some- 
 times before the King's Bench ^. 
 
 Meanwhile the Council never loosed the reins, but gradu- 
 ally set its affairs in order. 
 
 Separa- Under Richard II we may say that the Council definitely 
 
 Council separated from Parliament. 
 
 liament " Petitions now went into three classes : 
 
 1. Bills of Grace answered by King in person. 
 
 2. Bills of Council answered by Council. 
 
 3. Bills of Parliament answered only with assent of Parlia- 
 ment. 
 
 We know now that in 13 Ric. II the Lords of Council 
 met between 8 and 9, business of the King and realm to be 
 dispatched first, common law matters to go to the judges, &c., 
 and the biUs of the lesser people ('du poeple du meindre 
 charge ') are to be examined and dispatched before the Keeper 
 of the Privy Seal and such of the Council as should be then 
 present ^. This it is plausibly suggested is the origin of the 
 claim of authority of Privy Seal in the Court of Requests, 
 to which bills went either because the plaintiff was very poor 
 or the king's servant. 
 
 During the civil commotions which prevailed in England 
 diu-ing and after the reign of Richard II the Council gained 
 ground, and probably the long absence of Henry V from 
 England helped them. 
 
 » Rot. Pari., 4 Hen. V, No. 15, vol. iv, p. 99. 
 
 » Ibid., pp. 164-5. 
 
 ' ' L'ordinance faite sur le gouvernment a tenir par le counsail du 
 Roi. Primierement que les seigneurs du Consail se taillent estre au 
 consail parentre oyt et noef de la clokke ou plustard,' &c. {Bib. Gott. 
 Cleopatra, F. iv, p. 1. 1). 
 
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THE KING'S COUNCIL 121 
 
 But on Henry's death, his son Henry VI being a minor, the The 
 baronage seized the government, the Commons, by a great g^^^ed 
 disenfranchising statute, became their nominees, and a Council hy the 
 was nominated by the Lords dui-ing the minority mainly from ' 
 
 themselves. 
 
 The Lords of the Council then produced a schedule for the 
 'good of the gouvemance of the land,' in which inter aim 
 was: 
 
 ' Item, that alle the Billes that shal be putt unto the 
 Counsail, shuld be onys in the woke att the lest, that is 
 to seie, on the Wednesday redd before the Counsaill and 
 their ansueres endoced by the same counsaill, and on the 
 Friday next folowyng declared to the partie suying Item, 
 that alle the billes that comprehende materes terminable 
 atte the commune lawe that semeth noght fenyd be 
 remitted there to be determined, but if so be that ye 
 discrecion of the counsaill feele to greet myght on that oo 
 side, and unmyght oo that othir.'' 
 
 This exception seems sufficiently large, but it was not 
 large enough, for in 1426 another clause added ' orellus other 
 cause resonable that shel moeve hem ^.' Moreover the clerk 
 of the Council, as far as he can, 'shall espye which is 
 the porest suyteurs bille and that first to be redd and 
 ansuered' and the King's serjeant to help him without fee^ 
 
 A certain amount of light is thrown on the state of the The 
 country at this time by two cases which are preserved in a^^^^^yip 
 Nicholas. In the fifth year of Henry VI % one William Wawe, orderjus- 
 a highwayman 'quidam iniquitatis filius,' had broken out of police, 
 prison and robbed churches. The Council offers J'lOO to any 
 one who will produce 'coram nobis ipsum seu corpus aut caput 
 ipsius si interfectus fuerit.' He took sanctuary at Beaulieu 
 Abbey, and the abbot was instantly called on to produce his 
 
 ' Nicholas, Proceedings of Privy Council, iii. 214. 
 2 Rot. Pari., 2 Hen. VI, iv. 201 ; Nich., iii. 148. 
 ' Nich., iii. 257. 
 
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122 ENGLISH LEGAL INSTITUTIONS 
 
 franchises, ' si quas habeat de retinenda persona Willi Wawe,' 
 heretic, highwayman, traitor, &c. What happened does not 
 appear, but William was shortly afterwards arrested and 
 satisfactorily hanged. 
 
 In the seventh year of Henry VI ^, one John Roger con- 
 fesses that he has infringed the statute regulating export of 
 wool. All the judges are summoned to advise whether he 
 should be let off with a fine or sent to trial. The judges say 
 ' fine him, for the jury will probably be bribed by the said 
 Roger.' Fined accordingly 200 marks or more if he can pay. 
 
 Whether it was that towards the end of the long war there 
 were signs of anarchy appearing in the country, and the 
 ordinary administration of justice was hindered, which seems 
 very probable, or whether it was that the Council knowing 
 the subservience of the Commons desired to put their autho- 
 rity on a statutory basis, an Act ^ was procured which must 
 have been of some value. 
 
 It recites that complaints have been made to the King of 
 great riots, extortions, and oppressions ; that his writs under 
 the great seal and letters of privy seal summoning offenders 
 before Chancery and Coimcil are frequently disregarded, and 
 it enacts that the Chancellor shall in such case issue writs of 
 proclamation to the sheriffs of the county, the adjoining 
 county, and of London, the proclamation to be made three 
 times, with heavy penalties of forfeiture, fine, and disability 
 on contumacy. It was a seven years' statute only, but the 
 doctrine that the disobedience to a privy seal or a subpoena 
 was a contempt against the King became well settled. Out- 
 lawry could not issue on this new process, so it was enforced 
 by a ' commission of rebellion.' 
 
 I 
 The very next year we find a royal letter to the Earls of 
 
 Salisbury and Northumberland^ reminding them that they 
 
 ^ Nicholas, Proceedings of Privy Council, iii. 313. 
 
 2 31 Hen. VI, c. 2. ^ Nich., vi. 159. 
 
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THE KING'S COUNCIL 123 
 
 are in the Commission of the Peace, yet that they had taken 
 upon them ' to make the greatest assembly of our hegemen 
 that ever was made,' and threatening that if any one perished 
 in consequence they should be * so chastised that both ye and 
 they and all our subjects shall have matter and cause to 
 eschew to attempt anything like hereafter.' 
 
 Lord Egremont for the same conduct is admonished to 
 ' surcease such novelries ' and to keep the peace ^. 
 
 There is no difficulty in believing that in these stirring 
 times the office of sheriff was no bed of roses. Sheriffs in 
 fact could not be found. On December 9, 1455 (34 Hen. VI), 
 the Council writes to Hugh Lowther and tells him that he 
 must be Sheriff of Cumberland on pain of £2,000 fine, the 
 King not admitting ' any excusation ^.' 
 
 Sir F. Palgrave gives two cases from which we can see the 
 sort of complainant and complaint which came before the 
 Council and what the Council did. 
 
 1. John Rukke, husbandman, of Essex, complains of false 
 imprisonment, and wrongftil disseisin. 
 
 He gets (a) writ of habeas corpus cum causa returnable in 
 Chancery for the imprisonment. This would produce the 
 plaintiff; (6) subpoena returnable before King and Council 
 for the wrongful disseisin. This would produce the defendant. 
 
 2. John, Lord Strange is complainant. 
 
 Roger Kynaston, who was second husband of plaintifTs 
 mother, unlawfully retained certain lordships on the Welsh 
 marches in which his wife had only a life interest. There had 
 been an arbitration and award against Kynaston ; Kynaston 
 would not obey it being very powerful. Strange came to 
 the Council, Letters missive under the signet were issued ; 
 Kynaston paid no attention ; then letters issued under the 
 privy seal; Kynaston waylaid the messenger, John Gough, 
 
 * iiicholas, Proceedings of Pnvy Council, vi. 161. ^ Ibid.,vi. 271- 
 
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124 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 The true 
 value of 
 the 
 
 Council 
 jurisdic- 
 tion re- 
 cognized. 
 
 and sorely beat him. Then issued a writ of proclamation ; 
 the defendant did not come in. 
 
 A commission of rebellion was then directed to the Earl of 
 Shrewsbury, Lord Herbert, and the Sheriff of Salop. 
 
 They do not seem to have been very active, so plaintiff 
 comes and asks for a privy seal to issue to them directing 
 them to execute their commission, with concurrent writs of 
 proclamation to the sheriffs and justices of Salop, Mint, 
 Hereford and Chester directing them to assist in arresting 
 Roger, and that none is to help him on pain of being put out 
 of the King's protection. 
 
 And on November 12, 7 Ed. IV, it was ordered by the 
 King and Council sitting in the ' Starre Chamber ' that the 
 Chancellor should make these writs. 
 
 It is worthy of note that although during the reigns of 
 Edward III, Richard II, Henry IV, V, and VI, petitions 
 were frequently presented on the subject of the Council's 
 jurisdiction, yet the objections seem rather to have been 
 against the methods by which and the occasions when the 
 jurisdiction was exercised, than against the jurisdiction itself. 
 
 They were mainly aimed at the arrest of persons by the 
 Council's pursuivants on mere suggestion, which might be 
 unfounded, and was possibly malicious. This explains the 
 provision we have mentioned, that the Chancellor shall mulct 
 in damages those who make untrue suggestions. Moreover, 
 it is quite clear that the Commons were sensible of the value 
 of this jurisdiction, if it were employed on the proper occa- 
 sions, as we gather from the petitions temp. Richard II where 
 it is prayed that people may not be forced to answer finally 
 in the Council in matters cognizable by the ordinary courts, 
 but that they should be concerning oppressions. 
 
 From the accession of Henry VII the legal history of the 
 Council tends to become the history of its Committees — for 
 
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THE KING'S COUNCIL 125 
 
 such they were — the Courts of Star Chamber and Requests. 
 The Council itself seems gradually to have discarded its purely 
 judicial functions ^ : it is by the end of Elizabeth's reign 
 almost entirely immersed in political and foreign affairs. 
 What power, if any, it still had to call to itself purely 
 judicial matters from the Star Chamber, we can only con- 
 jecture. We may safely conclude that being without assist- 
 ance from professional lawyers, it would have no inclination 
 to meddle with what it did not sufficiently understand. 
 From some of the entries in the Register it looks as though 
 the Coimcil sat in vacation — when the Star Chamber was 
 ' up ' — without the assistance of the judges, and took busi- 
 ness, perhaps urgent business, which 'Her Majesty's Court of 
 Star Chamber,' as we find it styled in 1588 ^, would otherwise 
 have dealt with. 
 
 Thus at Westminster, on July 14, 1562, the case of ' cer- 
 taine scollers of the University of Oxford ' came up. Six of 
 the 'chiefest of the committers of this disorder' are to be 
 sent 'hither,' the rest to be bound personally the first day 
 of next term in the Star Chamber ^. 
 
 On May 1, 1567, at Westminster, a jury of London being 
 this day before the Lords were commanded to appear before 
 their Lordships the morrow next after the last day of the 
 Term in the Star Chamber, to be there further ordered *- 
 
 Some of these cases may have had a political aspect, and 
 required handling by the statesman rather than the lawyer. 
 
 Though the statute* which abolished the Star Chamber Jurisdic- 
 restricted the jurisdiction of the Council, it did not affect /^ainhiff 
 
 the right of a suitor, in one of the foreign dependencies of in the 
 
 . •■! Privv 
 
 the Crown, to apply for justice to the King in Council. Council. 
 
 ' A gap in the Council Register which extends from the 13th year 
 of Henry VI to the 32nd year of Henry VHI makes the stages of this 
 process obscure. ^ On Jan. 28. 
 
 » Dasent, vii. 114. ♦ Ibid., 347. " 16 Car. I, c. 10. 
 
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126 ENGLISH LEGAL INSTITUTIONS 
 
 Civil Petitions from the Adjacent islands and the Plantations were 
 
 thus unaffected. And down to 1833 such petitions were 
 heard by an open committee of the Pri^y Council ; while in 
 1832 the jurisdiction of the Court of Delegates in ecclesi- 
 astical and admiralty appeals was transferred to it. 
 
 It has been suggested that this Privy Council jurisdiction 
 over foreign dominions has grown by analogy from the 
 position of the Channel Islands which, as part of the Duchy 
 of Normandy, retained their judicial procedure, are not bound 
 by Acts of Parliament, and from whose courts error never 
 lay to Parliament but to the successor of the Dukes of 
 Normandy and his council. 
 
 and One degree of criminal jurisdiction still adheres in the 
 
 Privy Council. If the sovereign establishes courts of justice 
 beyond the realm by prerogative, appeal lies to the sovereign 
 as to the fountain of justice, unless taken away by statute or 
 charter ^. 
 
 The Judicial Committee of the Privy Council was formed 
 in 1833, and its composition has since been frequently 
 modified by statute. 
 
 The statute creating it^ provided that this Committee 
 should consist of the President of the Council, the Lord 
 Chancellor, such members of the Privy Council as should 
 from time to time hold the office of Lord Keeper, judge in 
 the King's Bench, Common Pleas, or Exchequer, Master of 
 the Rolls, Vice-Chancellor, judge in the Prerogative Court 
 of Canterbury, judge of the High Court of Admiralty, Chief 
 Judge in Bankruptcy, and all Privy Councillors who had in 
 the past held any of the above offices : provided that His 
 Majesty could from time to time by his Sign Manual appoint 
 two other persons being Privy Councillors to be members of 
 the said Committee. 
 
 Two members of the Privy Council who shall have held 
 
 » Begina v. Bertrand, L. R., 1 P. C. 629. ^ S&^ Will. IV, c. 41 . 
 
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THE KING'S COUNCIL 127 
 
 the office of judge in the East Indies or in any of His 
 Majesty's dominions beyond the seas, and who being ap- 
 pointed for that purpose by His Majesty shall attend the 
 sittings of the Committee, shall receive £400 a year for 
 their expenses. 
 
 In 1871 the Crown was empowered by statute ^ to appoint 
 within twelve months under the Sign Manual four persons 
 to act as members of the Committee, and from time to time 
 within two years to fill any vacancies occurring. Such persons 
 must, when appointed, be or have been judges of the Superior 
 Courts at Westminster, or a Chief Justice in Bengal, Madras, 
 or Bombay. The appointed salary was d&5,000 a year. 
 
 The term 'Superior Courts at Westminster' means the 
 Superior Courts of Law and Equity at Westminster, inclusive 
 of the Courts of Probate for Divorce and Matrimonial Causes, 
 and of Admiralty. 
 
 In 1876 the famous Appellate Jurisdiction Act ^ was passed, 
 which not only amended the composition of the House of 
 Lords as a Court of Appeal by empowering the Crown to 
 create life peers as Lords of Appeal in Ordinary, but 
 indicated a policy of assimilating the two great tribunals 
 of appeal in the British Empire. This policy seems, in 
 view of recent constitutional and imperial developments, at 
 any rate in its original features, to be abandoned. 
 
 The Act provided that the new Lords of Appeal in 
 Ordinary, of whom two were to be appointed, should, if 
 members of the Privy Council, be members of the Judicial 
 Committee, and that it should be their duty to sit and act, 
 and further, after reciting the powers given to the Crown by 
 the Act of 1871, to appoint four paid judges of the Judicial 
 Committee, went on to provide that on the death or resigna- 
 tion of two of these the Crown might appoint a third Lord 
 
 ' 34 & 36 Vict. c. 91. ^ 39 & 40 Vict. c. 59. 
 
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128 ENGLISH LEGAL INSTITUTIONS 
 
 of Appeal in Ordinary, and on the death or resignation of 
 the other two, a fourth. 
 
 Accordingly there are now four Lords of Appeal in 
 Ordinary. 
 
 In 1881 \ it was enacted that every person holding or who 
 has held the office of Lord Justice of Appeal in England shall, 
 if a Privy Councillor, be a member of the Judicial Committee. 
 
 In 1887 ^ it was enacted that the Judicial Committee shall 
 include such Privy Councillors as shall hold or have held 
 'high judicial office' within the meaning of the Appellate 
 Jurisdiction Act, 1876, and this Act. 
 
 'High Judicial Office' means Lord Chancellor of Great 
 Britain and Ireland, a paid Judge of the Judicial Committee, 
 or a judge of the Superior Courts of Great Britain and 
 Ireland, i. e. in England of the High Court of Justice and 
 the Court of Appeal, or the Superior Courts of Law and 
 Equity as they existed before the Judicature Act, in Scot- 
 land of the Court of Session, in Ireland of the Superior Courts 
 of Law and Equity in Dublin. It also includes the office of 
 a Lord of Appeal in Ordinary, and of a member of the 
 Judicial Committee. 
 
 In 1895 ^ it was enacted that if any person being or having 
 been Chief Justice or Judge of the Supreme Court of Canada, 
 or of a Superior Court of any province of Canada or of New 
 South Wales, New Zealand, Queensland, South Australia, 
 Tasmania, Victoria, Western Australia, Cape of Good Hope, 
 and NataJ, or of any other Superior Court in the Crown's 
 Dominions named in that behalf by the Crown in Council, 
 is a Privy Councillor, he shall be a member of the Judicial 
 Committee. The number of such persons shall not exceed 
 five at any one time. 
 
 ' By 44 Vict. c. 3. =" By 50 & 61 Vict. c. 70. 
 
 ' By 68 & 69 Vict. c. 44. 
 
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THE KING'S COUNCIL 129 
 
 It can hear civil and criminal appeals from the colonies, 
 Indies, and foreign dominions^. But as regards appeal in 
 criminal cases ' the rule has been repeatedly laid down and 
 invariably followed that Her Majesty will not review or 
 interfere with the course of criminal proceedings unless it is 
 shoAvn that by a disregard of the form of legal process or by 
 some violation of the principles of natural justice or other- 
 wise, substantial or grave injustice has been done ^.' 
 
 Although the Privy Councillors as committing magistrates 
 (and every Privy Councillor is in the commission of the peace 
 for every county ip England) are constitutionally empowered 
 ' to inquire into all offences against the government and to 
 commit the offenders to safe custody V it is now customary 
 to send such offenders like ordinary criminals before the 
 magistrates in the usual way. 
 
 ^ It is believed that the only instance of the explicit abridgement of 
 the right of the subject to petition the Crown for redress of grievances 
 is found in the Australian Constitution Act (63 & 64 Vict. c. 12, § 74). 
 
 ^ Ex parte Deeming, 1892, A. C. 422. 
 
 ' Blackstoue, Inst., i. 230 ; Comm., 231.' 
 
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CHAPTER XIV 
 
 THE STAR CHAMBER 
 
 In view of the doubt which surrounds the relationship 
 of the Council to the Star Chamber it may be usefiil to 
 indicate certain facts which are, so far as the records go, 
 beyond dispute. 
 
 The Proceedings and Ordinances of the Privy Council 
 
 "■ from the tenth year of Richard II were published under the 
 
 direction of the Commissioners of Public Records by Sir H. 
 
 Nicholas, and are now continued under the editorship of 
 
 Mr. Dasent, C.B. 
 
 Unfortunately the Council Register or Book of the Council 
 stops abruptly in the thirteenth year of Henry VI and begins 
 again in the thirty-second year of Henry VIII. From that 
 date we have the Council records down to the year 1596 ^. 
 
 Mr. Baildon's Reports of Cases in the Star Chamber begin 
 in 1593 and go down to 1609. The writer of this book was 
 John Hawarde of the Inner Temple, Bencher 1613, Reader 
 1625, who apparently sat in court, and took notes, which he 
 afterwards wrote up ^. 
 
 itar The Star Chamber was built conveniently 'near the Re- 
 , ®' ■ ceipt,' i. e. the Treasury. It was begun in 1347 and finished 
 ed. the next year, and immediately became the Council room. 
 
 ■* The Camden Society has also published Cases heard in the Star 
 Chamber, 1631-2, vol. 39, N. S. 
 
 ' The MS. is in the collection of Alfred Morrison, Esq., and is 
 mentioned in The Ninth Report of the Hist. MSS. Comm., p. xvii, and 
 App. II, p. 406. 
 
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THE STAR CHAMBER 131 
 
 The name ' Sterred Chamber ' is first found in or about 1348 
 in the tilers' accounts of 21 & 22 Ed. Ill \ 
 
 Down to the Tudor times, it may be said with confidence 
 that the words ' in the Star Chamber' are a mere geographical 
 expression ; they were not part of the ' style ' of the court. 
 The minutes of the Council show that when they were at 
 Westminster they usually sat there. So in the Issues of the 
 Exchequer of 12 Ric. II there is an entry of seven shillings 
 paid to Henry Winchester for a Kalendar purchased from 
 him for the king's use, viz. to be kept for the use of the 
 Lords of the Council in the Star Chamber, and again in 
 1 Hen. IV there is another payment for rich cloths and 
 cushions provided for the advantage and accommodation of 
 the Lords and nobility appointed to consult together on 
 behalf of our Lord the King in the Star Chamber. 
 
 In considering the relations between the Privy Council Relations 
 and what is generally known as the Court of Star Chamber ^m^ 
 it is useful to bear in mind the previous history of the Star 
 Council. It has been weU remarked that the king's con- 
 tinual council at one time exercised a more extraordinary 
 combination of legislative and executive functions than any 
 other political assembly has perhaps claimed for itself. In 
 addition to its supreme and exclusive title to the office of 
 chief advisers to the Crown, and chief instruments of the 
 royal wiU as displayed in acts of government, it arrogated 
 to itself for a long period an almost illimitable right of 
 judicial interference. Before the jurisdictions of the courts 
 of law and equity were marked out there was scarcely a de- 
 partment of state which was not in a greater or less degree 
 subject to its immediate control. No rank was too exalted 
 or too humble to be exempt from its vigilance, nor any matter 
 too insignificant for its interference ^. 
 
 ^ Queen's Remembrancer's Ancient Miscellanea ^^. 
 ' Nicholas, Proceedings and Ordinances of the Privy Council, ii. 
 Introduction. 
 
 k2 
 
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132 ENGLISH LEGAL INSTITUTIONS 
 
 As a matter of history we know that the Council, while 
 throwing off the courts of common law, remained the depo- 
 sitory of the residuary royal jurisdiction in civil and criminal 
 matters, that on the civil side this jurisdiction became in the 
 main the Chancellor's system of equity, while the criminal 
 jurisdiction remained in the hands of the Council as such. 
 The differentiation of function was, however, a gradual and 
 slow process. For the common law judges, who were at first 
 members of the Council, but who seem to change their rela- 
 tionship to the Council and to become legal assessors rather 
 than members, for a long time sit with the Council ^ for its 
 guidance, and also down to the time of Cardinal Wolsey 
 were formally or informally associated with the Chancellor. 
 
 Differentiation spells specialization. The judges had their 
 own proper work to do, while the Council's activities became 
 essentially executive. It was in virtue of its great executive 
 powers that it made its mark on the administration of justice. 
 One might perhaps say that its functions were not so much 
 those of a judge as of a police magistrate. Coke ^ observes 
 that the Council in ancient times rarely sat judicially except 
 for summons and exorbitant causes and not such as ordinary 
 courts could condignly punish, lest it should draw the king's 
 council from matters of state to hear private causes and the 
 principal judges from their ordinary courts of justice. It is 
 significant that the 'articles of government' of Council in 
 2 Hen. VI ^ find it necessary to provide for the presence of 
 judges where the Council is not learned enough, and that 
 similar provision is made in the articles of 5 Hen. VI and 
 8 Hen. VI. 
 
 This perhaps marks a change, for Coke says that 'in 
 28 Ed. Ill it appeareth that the returns " coram nobis " are 
 
 ' So on Feb. 10, 1403, there were present ' les iustices de lun Banc 
 et de lautre ' (Nich. i. 197). 
 " Inst.,iv- c. 6. ' Rot. Pari., iv. 201. 
 
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THE STAR CHAMBER 133 
 
 in three manners ; " coram nobis in Camera " (which it was 
 said was afterwards called Camera Stellata), "coram nobis 
 ubicunque fiierimus in Anglia," which is the King's Bench, 
 and " coram nobis in Cancellaria." ' 
 
 In the precedents which Coke preserves from Ed. Ill 
 onwards the style of the court is 'coram rege et consilio,'' 
 sometimes the words ' in the Star Chamber ' being added. 
 
 Down to the Tudor period the composition of the Council 
 is free from doubt. It was the king, the great men, and 
 the judges. Then comes the celebrated statute 3 Hen. VII 
 c. 1, the object and effect of which will be considered 
 below ^. Lastly, having passed through the obscurities of 
 the Tudor period, we reach the time of Coke and Bacon, 
 who agree in describing from personal knowledge a Court 
 constituted remarkably like the pre-Tudor Court of 
 Henry VI. 
 
 ' The Judges of the court are the Grandees of the Realm, 
 the Lord Chancellor, the Lord Treasm-er, the Lord President 
 of the King's Council, and the Lord Privy Seal, all the Lords 
 Spiritual and Temporal and others of the King's most 
 honourable Privy Council, and the principal judges of the 
 realm and such other Lords of Parliament as the King shall 
 name . . . And the court cannot sit for the hearing of causes 
 under the number of eight at least. This court . . . doth 
 keep all England quiet.' 
 
 ' It is, or may be, compounded of three several Councils : 
 
 '(1) Of the Lords and others of His Majesty's Privy 
 Council, who are always judges without appointment. 
 
 '(2) The Judges of either Bench and Barons of the Ex- 
 chequer are of the King's Council for matters of law ; and 
 
 * It is unlucky that we have at present no records either of the 
 Privy Council or of the Star Chamber to show the state of things, 
 which preceded and followed the passing of the Star Chamber Act. 
 
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134 ENGLISH LEGAL INSTITUTIONS 
 
 the two Chief Justices, or in their absence two other Justices, 
 are sta/ndimg judges of this Court. 
 
 ' (3) The Lords of Parliament are properly De magno con- 
 silw regis, but neither these being not of the King's Privy 
 Counpil nor any of the rest of the Judges or Barons of the 
 Exchequer are standing judges of this Court ^.' 
 
 The style of this Court (which is commonly and con- 
 veniently called the Star Chamber) is according to Coke 
 'coram rege et consilio.' 
 
 So Bacon says 'The Court of Star Chamber is compounded 
 of good elements, for it consisteth of four kinds of persons, 
 counsellors, peers, prelates, and chief judges^.' 
 
 This Court of Coke and Bacon is in reality and style the 
 same court which existed before the reign of Henry VII. 
 
 Some light is thrown on the relations during the Tudor 
 period of the Council to the Star Chamber by the Proceed- 
 ings of the Privy Council, and by Hawarde's notes, above 
 referred to, which seem to negative the suggestion that these 
 Courts exercised rival jurisdictions. 
 
 In 1596 the following persons formed the Privy Council : 
 Whitgift (Archbishop of Canterbury), Puckering (Lord 
 Keeper; died Ap. 30), Lord Cobham, Sir WiUiam Cecil 
 (Lord Treasurer), Sir Robert Cecil, Sir Henry Carey (Lord 
 Chamberlain), Earl of Essex (Master of Horse), Sir John 
 Fortescue (Chancellor of Exchequer), Lord Howard of 
 Effingham (Lord High Admiral), Egerton (Lord Keeper), 
 Lord Buckhurst (Lord High Butler), Sir Francis KnoUys 
 (Treasurer of the Household), Sir T. Heneage (Chancellor 
 of the Duchy), and Sir J. WoUey (Latin Secretary ; died in 
 February). 
 
 In that year, down to and including May 21, Mr. Hawarde 
 gives ten sittings in the Star Chamber. With the exception 
 
 * Coke, Inst., iv. c. 6. ^ lAfe of Henry VII (Spedding), vi. 85. 
 
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THE STAR CHAMBER 135 
 
 of the three last-mentioned Councillors all came and sat in 
 the Star Chamber, at some time or other. Some Councillors 
 attended with great regularity. The Lord Keeper Puckering 
 attended every meeting tiU his death, when his successor 
 Egerton attended aU the rest. Lord Buckhurst was very 
 nearly as good and so was the Archbishop of Canterbury. 
 The Chancellor of the Exchequer only missed one. Sir 
 William Cecil came thrice, the others once or twice. 
 
 Amongst those who were most regular in attendance at 
 Council are the Lord Keeper, Lord Buckhurst, the Arch- 
 bishop, and the two Cecils. 
 
 But in the Star Chamber we find others who are not 
 of the Privy Council, viz. Anderson C. J. of the Common 
 Pleas, Popham L. C. J., and Peryam C. B. of the Exchequer, 
 Walmesley J., and the Bishop of London. 
 
 Of these the two Chief Justices and the Bishop are models 
 of regularity. 
 
 An inspection of the dates shows that the two meetings 
 were never allowed to clash, but that if Council business had 
 to be done on a Star Chamber day, the Coimcil came and did 
 it in the Star Chamber either before or after the more strictly 
 legal business. 
 
 At the time we are dealing with, the early part of 1596, 
 the Court was at Richmond, and moved to Greenwich some- 
 where about April 20. 
 
 The subjoined diary, compiled from the two records, speaks 
 for itself : — 
 
 Jan. 25. Council at Richmond. 
 
 „ 28. Star Chamber Court. 
 
 „ 30. Council and a Court at Star Chamber. 
 Feb. 1. Coimcil at Richmond. 
 
 „ 2. The same. 
 
 „ 3. The same. 
 
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136 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Feb. 4. Star Chamber Court. 
 
 6. The same ^. 
 
 8. Council at Richmond. 
 11. Star Chamber Court ^. 
 13. The same. 
 
 15. Coimcil at Richmond. 
 
 Ap. 29. Star Chamber Court, and letters signed in 
 Council by some of those who formed the 
 Court. 
 
 Council at Greenwich. 
 
 Star Chamber Court. 
 
 Coimcil at Greenwich. 
 
 16. The same. 
 19. Council and Court at Star Chamber. 
 
 Star Chamber Court. 
 Council in Star Chamber. 
 Star Chamber Court. 
 
 May 9. 
 12. 
 14. 
 
 21. 
 24. 
 
 The following extracts from the Council minutes leave no 
 doubt as to the allocation of business between council and 
 court. It is the old story over again. The Council does 
 not desire to act in judicial matters without the best pro- 
 fessional assistance : — 
 
 At Hampton Cowrt, Jam. 21, 1592. 
 
 ' Whereas there is depending before their Lordships a cause 
 in controversy between Mr. Doctor Caesar, Judge of H.M.'s 
 Court of the Admiralty and Philip Corsini, merchant stranger, 
 wherein they mind to proceed forthwith and so end and de- 
 termine the same, their pleasure is that the parties with their 
 witnesses and learned coimsel on both sides shall attend their 
 
 ^ On this date some formal business was done in Council, but no 
 names of Councillors are given as present, and the same thing happens 
 on the 12th. 
 
 " On the 11th and ISthj^some appearances before the Council were 
 entered, but this could be done before a clerk according to Coke. 
 
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THE STAR CHAMBER 1S7 
 
 Lordships' on Friday next at the Star Chamber in the after- 
 noon, xohen some of the Judges shall be present to give their 
 opinions upon such points of the controversy as their Lordships 
 shall find requisite for their better direction in the ending and 
 ordering thereof^ 
 
 At the Court at Croydon, May 14, 1593. 
 
 A commission having issued to examine into some disturb- 
 ances regarding some weirs on the Trent, their Lordships 
 ' finding the examinations of either side much different and 
 the matters meet to be censured and decided by ordinary 
 course of justice,' finally order that all questions grown of 
 the said weir shall be referred to the judicial trial of the Star 
 Clianiber and other her Majesty'' s Courts of Record at West- 
 minster, . . . and that the same shall be no more dealt in at 
 the Council Board.' 
 
 At the Court at Nonesuch, June 5. 
 
 An order to magistrates of Notts, to release one Bulby 
 from gaol, that he may attend the prosecution of this case 
 in the Star Chamber as the matter of the weir is 'judicially 
 depending' there. 
 
 At Nonesuch, June 19, 1593. 
 
 A letter to Lord President and Council of the Marches of 
 Wales. One Wheler had complained of perjury in the Dean 
 of Worcester and others, whereby he had been fined £5, and 
 for trial thereof ' a bill is exhibited into the Star Chamber 
 before us where the same is to receive hearing.' Process is to 
 be stayed in the Court of Marches for levying the fine, till 
 the matter is heard and determined. 
 
 At Richmond, Dec. 13, 1595. 
 
 A letter to the Lord Warden of the Middle Marches near 
 Scotland. Certain people have committed misdemeanours 
 fit to be answered here ; the Lord Warden is required to 
 
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138 ENGLISH LEGAL LnJSTITUTIONS 
 
 take bonds for ' their appearance iefore us the first setting 
 day in the Star Chamber next term,' 
 
 In 1612 (10 Jac.) the same relations are exhibited in the 
 curious proceedings against the Countess of Shrewsbury^ 
 before a ' select council' for a contempt in refusing to answer 
 fiilly before the Privy Council. The meeting was held at 
 York House , before the Lord Chancellor, the Archbishop, 
 the Duke of Lennox, the Lord Privy Seal, the Lord Cham- 
 berlain, the Earls of Worcester and Pembroke, Viscounts 
 Erskine and Rochford, Lords Zouch, KnoUys, and Wooton, 
 the Chancellors of the Exchequer and the Duchy, the Lord 
 Chief Justice, the Master of the RoUs, Coke C.J. and 
 Tanfield C.B. 
 
 The majority of the Council were there, including the 
 most important members, with the chief judges added. 
 
 It is stated that this selected Council is to express what 
 punishment the offence justly deserved if it he judiciaMy pro- 
 ceeded with within the Star Chamber, this procedure being out 
 of the king's mercy and grace that the lady might submit to 
 the king without any punishment in any court judicially. 
 
 It was resolved that if any punishment should he given in 
 the Star Chamber it should be a Jine of £2,000 and imprison- 
 ment during pleasure. 
 
 In 1631 (7 Car.) the Privy Council according to the 
 Register numbers forty, six or seven being Scotch peers. Of 
 them fifteen are present in the Star Chamber to hear the 
 case of Falkland v. Mountmorris and others^. This, how- 
 ever, was a specially interesting case, the complainant. Lord 
 Falkland, himself a Privy Councillor and Lord Deputy, 
 having been accused of complicity in what looks like 
 a judicial scandal in Ireland. On other occasions the 
 
 ^ 2 State Trials, 769. 
 
 ^ Star Chamber Cases, 1631-2 (Camden Soc, vol. 39, N. S.). 
 
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THE STAR CHAMBER 139 
 
 :endance was scanty, sometimes not more than five were 
 2sent, two of whom were Chief Justices ^. 
 
 What then was the object and the effect of passing what Effect 
 known as the Star Chamber Act of Henry VH ? It runs yil^c' 
 follows — ' The King our said Sovereign Lord remembereth 
 w by unlawful maintenance, giving of liveries, signs, and 
 cens, and retainders by indentures, promises, oaths, writing 
 otherwise embraceries of his subjects, untrue demeanings 
 sheriffs in making of panels, and other untrue returns, by 
 dng of money, by juries, by great riots, and unlawful as- 
 nblies, the policy and good rule of this realm is almost 
 jdued and for the not punishing of these inconveniences 
 i by occasion of the premises little or nothing may be 
 md by inquiry, whereby the laws of the land in execution 
 ly take little effect, to the increase of murders, robberies, 
 •juries, and unsureties of all men living, and losses of their 
 ids and goods, to the great displeasure of Almighty God, 
 lerefore it is ordained for reformation of the premises by 
 bhority of the said Parliament that the Chancellor and 
 easurer of England for the time being and Keeper of the 
 ag's Privy Seal or two of them, calling to them a bishop 
 1 a temporal lord of the king's most honourable council, 
 1 the two Chief Justices of the King's Bench and Common 
 ias for the time being or two other justices in their absence, 
 on biU or information put to the said Chancellor for the 
 ig or any other, against any person for any misbehavioiu- 
 bre rehearsed, have authority to call before them by writ 
 by Privy Seal the said misdoers, and them or other by 
 iir discretion by whom the truth may be known to examine 
 i such as they find therein defective to punish them after 
 iir demerit, after the form and effect of statutes thereof 
 de, in like manner and form as they should and ought to 
 
 Star Chamber Cases, 1631-2, under date Ap. 20, 1632 (Camden 
 ., vol. 39, N. S.). 
 
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140 ENGLISH LEGAL INSTITUTIONS 
 
 be punished as if they were thereof convict after the due 
 order of the law^.' 
 
 From the researches of an American lady^ in the Harl. 
 MS. 6811, Art. % and Add. MS. 4521, Art. 9 and Harg. MS. 
 216 it seems that in his two first years Henry VII sat at 
 least ten times with his Council in the Star Chamber (on one 
 occasion (Feb. 9) the Council numbering twenty-six, including 
 Hody A.-G.), and considered riots and political business. 
 
 In the Year Book 2 Ric. HI, fos. 2 and 11, we find the 
 cases of the Spanish merchant, and the Waterford merchants, 
 ' coram rege et consilio.' The opinions of all the judges were 
 taken in Camera Scaccarii. On the other hand, in Y. B. 
 2 Hen. VII, Mich. T., fol. 9 the justices of the Common 
 Bench desiring advice ' surrexerunt et allerent al Chancelier 
 & Seigniors de Star-Chambre.' It may well be that Henry, 
 who was a frugal man, intended to make a small judicial 
 committee, with professional assistance, seven persons in all 
 (to whom Henry VIII added the Lord President *), to take 
 judicial as opposed to high political work, and so leave the 
 rest of the council and the rest of the judges free to attend 
 to their proper business. The offences named in the statute 
 were precisely those that the common law had failed to cope 
 with. It may be only a coincidence, but the new court 
 bears a considerable resemblance to the Court of Exchequer 
 Chamber as established by 31 Ed. Ill, st. 1, c. 12. 
 
 For a short time, it seems, the statute was strictly con- 
 
 * That the preamble of the statute was truthful we have some 
 evidence in a report in the Y. B. , 7 Hen. VI, 9. An assize in 
 Cumberland was adjourned to LondoUj and the reason being asked it 
 was said that it was a great matter, and that the parties came with 
 great routs of armed men, ' plus semble pur vener a bataille que al 
 assize.' 
 
 ^ Miss Cora Scofield, of the University of Chicago, who has written 
 a thesis on the topic, which my friend Mr. Leadam has shown me. 
 
 3 21 Hen. VIII, c. 20. 
 
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THE STAR CHAMBER 141 
 
 strued ; we may note the decision ^ which Coke disapproved 
 that only the Chancellor, Treasurer, and Lord Privy Seal 
 were judges by the statute 3 Hen. VII, that it was 'error' 
 if the two councillors and justices were not called in, but 
 that they were assistants et aidants et nemy iuges, yet next 
 year, on June 2, a court was formed of the Chancellor, 
 Treasm-er, the two Chief Justices, and the Chief Baron when 
 an injunction was granted against wearing liveries ^. 
 
 I am indebted to Mr. Leadam, who is editing a volume 
 of Star Chamber cases for the Selden Society, for a note of 
 a case in 1508 (13 Hen. VII) concerning a conflict of juris- 
 dictions at Shrewsbury, where the court was composed of the 
 Archbishop of Canterbury, Rede C. J., Brudenell, Fisher, 
 Butler, and KingsmiU JJ., all of the Common Pleas, 
 Tremayle J. of the King's Bench, and the Prior of St. John 
 of Jerusalem. 
 
 In fact, so far as we know at present, there is no record 
 of a court constituted in precise accordance with the terms 
 of Henry's statute. If it ever lived its life was short, and 
 it died before it was christened. The statute gave its child 
 no name, though in the Parliament Roll there is a heading 
 to the statute of 'Pro Camera Stellata.' In Chambers' 
 case ^ where the defendant, who had been committed to the 
 Fleet prison by the Star Chamber, for words he used at 
 the Council table, being brought up on his habeas corpus, 
 prayed deliverance because st. 3 Hen. VII, c. 1, ' which is the 
 foundation of the Court of Star Chamber, doth not give them 
 any authority to punish for words only, all the court informed 
 him that the Court of Star Chamber was not created by that 
 statute, but was a court many years before,' herein agreeing 
 with Coke and Bacon *. 
 
 ' Y. B. 8 Hen. VII, 13. 
 
 '' Liber Intrationum. Add. MS. 4521 and Harg. MS. 216. 
 
 ' 4 Cro. 168. 
 
 * See also Hudson's Treatise on the Star Chamber, pt. ii, § 2. 
 
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142 EI^GLISH LEGAL INSTITUTIONS 
 
 The permanent effect of the statute seems to have been to 
 make the Chief Justices, as Coke says, standing judges of the 
 court, and incidentally to cause it to observe the Law Terms : 
 ' This Court,' says Coke, ' sitteth twice in the week in the 
 Term time, viz. on Wednesdays and Fridays, except those 
 days fall out to be the first or last days of Term, and then 
 the Court sitteth not, but it constantly holdeth the next day 
 after the Term ended.' 
 
 If Coke is correct, and he speaks with authority, the statute 
 gave a power to examine on Interrogatories on oath, which 
 did not exist before, ' the want whereof especially in matters 
 of frauds and deceits (being like birds closely hatched in 
 hollow trees) was a mean that truth could not be found out.' 
 
 We may, perhaps, also suggest that the statute supplied 
 some foundation for that list of common law misdemeanours, 
 which, before unknown or little considered, we owe to the 
 vigilance of the King's Council acting as custos morum. 
 
 We may now glance at the procedure and decisions of the 
 Star Chamber. 
 
 The procedure before this tribunal was three-fold. In 
 Procedure cases between private individuals, the plaintiff filed a bill, to 
 which the defendant put in an answer and was sworn to it. 
 If he refused to answer he was taken to have confessed the 
 bill, and judgement was thereupon given. Otherwise evi- 
 dence was taken by interrogatories and depositions. If a 
 question of fact could be more conveniently determined at 
 common law, the Court directed the issue to be tried before 
 a jury, and the verdict certified into the Star Chamber. 
 
 The second mode was ore terms, but this was only possible 
 
 (2) Crimi- in cases where the defendant confessed his oflfence. The pro- 
 
 n^ • w ceedings ore tenus originated either in ' soden reporte,' or by 
 
 ' the curious eye of the State or King's Council prying into 
 
 the inconveniences and mischiefs which abound in the 
 
 Commonwealth.' The accused person was privately arrested 
 
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THE STAR CHAMBER 143 
 
 d examined viva voce by the Council. Anything he said 
 IS taken down, and he signed his answers which he had 
 ain to confess in open court. But if his confession was ' set 
 wn too short or otherwise than he meant he may deny it, 
 d then they cannot proceed against him but by Bill or 
 formation which is the fairest way^.' If his admissions 
 ire unfortunate he was condemned ex ore sua, and judgement 
 jordingly. If he declined to answer he went to prison 
 1 he thought better of it. 
 
 The third method was by a written information laid by the (b) 
 ttomey-General, as in the King's Bench, The defendant 
 LS brought up on a writ of praemunire or subpoena. To 
 e information he put in an answer, which was required to 
 
 signed by counsel ^, and if such an answer was not forth- 
 ming he was taken to have confessed the information, and 
 3gement accordingly. After his answer was put in, he 
 IS examined on written interrogatories and the ex officio 
 th was given him. To this oath the most violent objection The 
 ^ expressed. It was in the form frequently used at the oath ' 
 esent in courts of justice and known as the voir (vrai) dire : 
 ""ou shall true answer make to all such questions as may 
 
 demanded of you, so help you God." It was said to be 
 atrary to the law of God and the law of nature, for by 
 am nemo teiietw prodere sevpsum, Mr. Justice Stephen 
 
 • Coke^ Inst. , iv. 5. 
 
 ' This requirement was not merely formal, for a counsel who set his 
 id to anything unadvisedly would probably regret it. Mr. Baildon 
 es a case (p. 32) where a counsel who had signed a bill imputing 
 •jury and subornation to an archdeacon and others, the charge not 
 ng substantiated, was disbarred for seven years. Some plain language 
 3 heard now and then. Lord Keeper Egerton addressing counsel 
 i, ' You muste goe to schoole to leame more witte, you are not 
 U aduysed, you forgette yo"^. place, and to be plaine it is a lye.' On 
 rther occasion the Lord Keeper ' made delivery of his conceit for 
 icitors ' (as opposed to attorneys) . . . ' that they are caterpillers del 
 nmon weale ' and maintenance would lie against them. 
 
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144. ENGLISH LEGAL INSTITUTIONS 
 
 observes that he thinks that the real truth was that those 
 who disliked the oath had usually done the things of which 
 they were accused, and which they regarded as meritorious 
 actions. Witnesses were then privately examined against 
 him and judgement followed. 
 
 Abuse of In one very important direction the Star Chamber inter- 
 fered, as we should consider, most dangerously with the 
 administration of justice. An instance will suffice. 
 
 Sir Nicholas Throckmorton was tried in the Queen's 
 Bench for high treason in 1554. After a trial in which 
 the prisoner was treated, as we should think, with great 
 unfairness by the Court and the Attorney-General and 
 defended himself with extraordinary ability, the jury acquitted 
 him. The jiu-y were thereupon committed to prison, eight 
 of them being brought before the Star Chamber after six 
 months and heavily fined. 'This rigour was fatal to Sir 
 John Throckmorton, who was found guilty upon the same 
 evidence on which his brother had been acquitted ^.' 
 
 What brought about the downfall of the Star Chamber, 
 
 which, unless we are entirely mistaken, was not only a most 
 
 J. valuable but a popular court, was the extraordinary severity 
 
 of the sentences it passed for political offences; Death was 
 
 the only punishment it dared not inflict. We may note 
 
 what Mr. Dicey calls the ' savage humovu: ' displayed in the 
 
 sentence passed on the man who objected on religious grounds 
 
 ■) to eat swine's flesh. He is to be imprisoned and fed on 
 
 J nothing but pork. It had abandoned its true function, and 
 
 had become the obedient instrument of the Government. 
 
 Turning now to some cases from the State Trials to illus- 
 trate the actual working of the Star Chamber, we find that 
 Sir John HoUis and Sir John Wentworth were prosecuted 
 'for traducing the public justice^.' A man called Weston 
 
 ^ Stephen, History of Criminal Law, i. 326 sq. 
 ^ 2 State Triak, 1022. 
 
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THE STAR CHAMBER 145 
 
 had been hanged for poisoning Sir Thomas Overbury : 
 Wentworth and HoUis went uninvited to the execution. 
 Wentworth asked Weston if he really did poison Overbury, 
 saying ' he desired to know that he might pray with him.'' 
 Hollis 'wished him to discharge his conscience and satisfy 
 the world." Hollis, besides, when the jury gave in their 
 verdict had said, 'if he were on the jury he would doubt 
 what to do.' Sir Francis Bacon, who was then the Attorney- 
 General, with great grace maintained that these remarks 
 implied that perhaps Weston's guilt was not absolutely 
 certain. The defendants excused themselves in a polite 
 manner. Sir Edward Coke pronounced sentence, in which 
 he referred to cases, beginning with the case of Abimelech, 
 made some observations on the bad habit of going to execu- 
 tions, and finally by way of ' censure ' Sir John Hollis was 
 fined .£'1,000 and Wentworth 1,000 marks, and each was 
 imprisoned a year in the Tower. This was in 1615. 
 
 In 1632 Mr. Sherfield ^ was prosecuted for breaking a glass 
 window in St. Edmund's church in Salisbury. He admitted 
 that he had done so, but justified his conduct because the 
 window 'was not a true representation of the Creation, for 
 it contained divers forms of little old men in blue and red 
 coats and naked in the head, feet and hands, for the picture 
 of God the Father, and the seventh day he hath therein 
 represented the like image of God sitting down taking his 
 rest, whereas the defendant conceiveth this to be false.' 
 Besides Eve was represented as being taken whole out of 
 Adam's side, whereas in fact a rib was taken and made into 
 Eve, For these and other reasons the defendant made eleven 
 holes in the window with his pikestaff and, said one of the 
 witnesses, ' the staiF broke and he fell down into the seat and 
 lay there a quarter of an hour, groaning.' For this Mr. Sher- 
 field was fined .£500. 
 
 ' 3 State Trials, 519. 
 L 
 
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 146 ENGLISH LEGAL INSTITUTIONS 
 
 Mr. Richard Chambers '^, a London merchant who had had a 
 quarrel with some under-officers of the Customs, was summoned 
 before the Privy Council, when he said, ' that the merchants 
 are in no part of the world so screwed and wrung as in Eng- 
 land, that in Turkey they have more encouragement.' For 
 this he was fined ^£'2,000 and ordered to make a written apo- 
 logy. He refused to do it, and was imprisoned for six years. 
 
 But what brought the court into the greatest odium was 
 the severity of its sentences upon the Libellers. In 1632 
 William Prynne^ was informed against for his book called 
 Histrio Mastix, to which he answered that the book had been 
 licensed, and his counsel apologized for the style of the book, 
 ' for the manner of his writing he is heartily sorry that his 
 style is so bitter and his imputations so unlimited and 
 general.'' The sentence on Prynne was that he was to be 
 disbarred and deprived of his University degrees, to stand 
 twice in the pillory, to have one ear cut off each time, to 
 be fined ,£5,000 and to be perpetually imprisoned without 
 books, pen, ink or paper. Five years afterwards Prynne, 
 Bastwick and Burton were tried for libel and were all sen- 
 tenced to the same punishment as Prynne had received in 
 1632. As Prynne, however, had lost both his ears already 
 he was branded on the cheeks. 
 
 It should, however, be said, as Mr. Baildon has pointed out, 
 that these enormous fines were often, if not usually, greatly 
 reduced ' on taxation.' He gives a hst of such reductions ^, 
 for instance a fine of £"1,000 is reduced to £100, £500 to 
 £30, and so on. And in fairness it must be admitted that 
 cropping the ears and slitting the nose were statutory punish- 
 ments for offences such as brawling in church, and provision 
 was carefully made by statute for branding in case the 
 offender's ears had already gone. 
 
 ^ 3 State Trials, 373. 2 jy^^ ggj 
 
 ' Les Beportes in Camera Stellata, p. 411. 
 
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THE STAR CHAMBER 147 
 
 In addition to its criminal business, according to Mr. Civil 
 
 Baildon, the Stax Chamber exercised considerable jurisdiction jn the 
 
 in cases of disputed customs of Manors, and in cases where ^^^ 
 
 (■!••«. loT Chamber 
 
 there was a great number either oi plaintifts or defendants, 
 
 also where foreigners were parties, in deceits of merchants, in 
 
 causes between corporations, mayors and commonalties, bailiffs 
 
 and burgesses, or great and mighty men ' where interest drew 
 
 malice and partaking.'' 
 
 Besides this, a great deal of miscellaneous business was 
 transacted there, proclamations of Orders in Council were 
 made, the Assay of the Mint was held, and the Lord 
 Chancellor's annual charge to the judges and justices of the 
 peace delivered. 
 
 The Court was abolished by Stat. 16 Car. I, c. 10, which its 
 recites that the matters examinable in the Star Chamber are ^"O""*"^' 
 all capable of being duly remedied at common law, and 
 that 'the reasons and motives inducing the creation and 
 continuance of that Court do now cease.' Though the 
 statute mentions, as an irregularity, that the Council does 
 not keep a Plea Roll, it does not allege that the Court , 
 
 was illegal. Even Sir Edward Coke said 'it is the most 
 honourable court (our Parliament excepted) that is in the 
 Christian world.' 
 
 The sinister fame of the Court of Star Chamber has 
 thrown into shadow that of other courts of analogous char- 
 acter and jurisdiction. The Court of Requests, of which we The 
 find some rudimentary indications in the reign of Richard II, Requests, 
 was a court of the Privy Council sitting to hear the com- 
 plaints of poor men or the king's household. It will be 
 described later ; at present it is enough to say that it was for 
 a time closely connected with the Star Chamber, and that in 
 two respects the history of the two courts present similar 
 features. Both were defined or regulated by Henry VII, 
 
 l2 
 
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148 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 The Presi- 
 dent and 
 Council : 
 (l)of 
 Wales ; 
 
 (2) of the 
 North ; 
 
 (3) of the 
 West. 
 
 Lasting 
 eifect on 
 the 
 
 Criminal 
 Law. 
 
 and in both the professional element became strongly 
 represented. 
 
 Some other courts with powers as ample and methods as 
 summary as those of the Star Chamber assisted the Common 
 Law. By, Letters Patent, Henry VIII established the Courts 
 of the President and Council in Wales and the President 
 and Council of the North. The Court of the President and 
 Council in the West was erected by Stat. 32 Hen. VIII, c. 50 
 with like authority. All three courts were subsidised by 
 Parliament, so that 'his true subjects . . . have undelayed 
 justice daily administered.' They had unlimited civil and 
 criminal jurisdiction. 
 
 Although these courts fell with the Court of Star Chamber, 
 they were not abolished in terms. The Court of the President 
 and Council of the Marches of Wales was expressly abolished 
 in 16881. 
 
 The President and Council of the North had co-ordinate 
 jurisdiction with the Border Commission which was established 
 after the union to prevent the ' thieving trade.' Commissions 
 of oyer and terminer were directed to an equal number of 
 EngHshmen and Scotchmen extending to certain limits on 
 each side of the Border. ' And these meet in their Sessions 
 and hang up at another rate than the assizes, for we were 
 told that at one session they hanged eighteen for not reading 
 sicut clerici. This hath made a considerable reform ^.' 
 
 The main offences punished in the Star Chamber were for 
 the most part unknown to the common law — perjury, forgery, 
 riot, maintenance, fraud, libel, and conspiracy. Cognizance 
 was also taken of attempts to commit certain offences such 
 as coining, miurder, burglary, and poisoning, and of black- 
 mailing and 'entangling young gentlemen in contracts of 
 
 1 1 Will. & Mary, c. 27. 
 
 ^ Lives of the Norths, i. 286, which see for an instance of Border 
 justice- 
 
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THE STAR CHAMBER 149 
 
 marriage to their utter ruin to which no statute extendeth.'' 
 (Hudson.) 
 
 It is important to observe that the jurisdiction exercised 
 by the Star Chamber permanently enlarged the limits of 
 the English Criminal Law, for when the Court fell never to 
 rise again the King's Bench without difficulty adopted the 
 Star Chamber view. 
 
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The 
 
 extraordi- 
 nary civil 
 jurisdic- 
 tion of the 
 Council. 
 
 The rise 
 of the 
 Chancel- 
 lor 
 
 CHAPTER XV 
 
 THE COURT OF CHANCERY 
 
 While the Council in the Star Chamber was exercising 
 criminal jurisdiction, it was at the same time developing 
 an extraordinary civil jurisdiction, which eventually fell into 
 the hands of the Council's most important legal member, the 
 Chancellor. As compared with the Justiciar the Chancellor 
 was, at first, a humble personage. He was the chief domestic 
 chaplain of the king and did the secretarial work, presumably 
 because he possessed the rare gifts of being able to read and 
 write. He apparently resided in the palace, and we know 
 that he had a daily allowance of five shillings, a simnel, two 
 seasoned simnels, one sextary of clear wine, one sextary 
 of household wine, one large wax candle and forty pieces 
 of candle^. In the time of Henry II this allowance was 
 made only si extra domum comederit, if he dined at home, 
 intra domum, he only got three and sixpence with a slight 
 variation in the other commodities ^- The Chancellor indeed 
 occupied and made the most of a position strategically valu- 
 able; he was, if one may say so, secretary and managing 
 director all in one, and being invariably in early times an 
 ecclesiastic he was always at the king's ear, he kept the 
 king's soul, and the king's seal ^- But the jurisdiction was 
 Council jurisdiction. 
 
 1 Mad. Ex. 1, 195. 2 Ihid., 42. 
 
 ' Seals were once rare, and not possessed by common persons. Note 
 the gibe of Ricardus de Luci the Chief Justice, ' vir magnificus et 
 
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THE COURT OF CHANCERY 151 
 
 Those who bear in mind the various facts we have already 
 mentioned, the constant references to the Council in novel 
 cases, the jealousy that the Council showed of the Chancellor 
 issuing writs other than de cursu, the origin of the very writ 
 o{ stibpoena, the fact that the Chancellor was a most important 
 member of the Star Chamber, and that owing to various 
 causes the residuary royal jurisdiction was really since Edward I 
 vested not in the King but in the King in Council, wiU have 
 little difficulty in attributing the Chancellor's rise to his due to his 
 connexion with the Council. The petition or bill which was ^^j^ ^j^g 
 addressed usually to the ChailceUor complained of an alleged Council, 
 ^vrong done by some one, and asked that the offender might 
 be sent for to answer, and that a remedy might be provided. 
 But occasionally a petition is addressed to the Chancellor and 
 Council ; thus one about 1S84> Ms ' To the Chancellor of our 
 most redoubted Lord the King and to his most wise Council,' 
 and another^ somewhere after 1396 is addressed to the 
 Chancellor ' and to the other most wise Lords of the Council 
 of our most redoubted Lord the King ' : the explanation 
 being that the Council sat as judges in the Coiu't of Chancery 
 well into the fifteenth century'- The Chancery and the 
 Star Chamber were the two developments of the Council : 
 'as the Chancery had the praetorian power for equity, so 
 the Star Chamber had the censorian power for offences under 
 the degree of capital.' The Chancellor, as we have seen, had 
 charge of charters, letters and public instruments, and, when 
 seals came into use, kept the Great Seal. So to-day a man 
 becomes Lord Chancellor by delivery of the Seal. He pre- His duties 
 sided ministerially over the writ office or Chancery, and when, '*^}S}^^'^'7 
 because the common law was inadequate in its remedies, the terial. 
 
 prudens/ when Gilbert de Balliol said that he had a seal. The great 
 man ' suhridens ' said that it used not to be that ' quemlihet militulum 
 sigillum habere quod regibus et praecipuis personis tantum competit.' 
 
 ' Select Cases in Chancery (Selden Society), edited by W. P. Baildon, 
 No. 107. 
 
 Mbid.,No.l9. =Ibid.,xiii. 
 
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152 ENGLISH LEGAL INSTITUTIONS 
 
 Stat. West. II ^ gave to the officma iustitiae the authority to 
 issue writs in consimili casu, and still the common law courts 
 did not take sufficient advantage of the statute, the Chan- 
 cellor, as representing extraordinary royal justice, was soon 
 busy. It may be said that up to the time of Edward I 
 the royal justice was making the common law, that after 
 that time it was correcting it. 
 Later About the end of Edward IIFs reign uses of land were 
 
 iu^ciallv iiitroduced ; they were discountenanced by the common law 
 courts but were considered binding in conscience by the 
 Chancellor. Then the judicial activity of the Chancellor 
 may be said to have started, though as we have mentioned 
 it is very doubtful if the Chancellor regularly sat alone in 
 a judicial capacity before Wolsey's tiine. Sir Francis Pal- 
 grave thinks it quite uncertain whether till Wolsey sat alone 
 in his own court and settled forms and practice, the earlier 
 Chancellors did anything but issue writs. This is probably 
 saying too much, but the composition of the tribunal was 
 evidently uncertain, as we may gather from the cases quoted 
 in the Select Cases in Chancery. 
 
 but not Thus in 1397^ the Chancellor alone dismisses a biU. Also 
 
 sarily ™ 1407-9^. In 1408 * Chancellor and Council are sitting 
 
 alone. togethei^ and through the reigns of Henry VI and Edward IV 
 
 the Chancellor is found sitting either alone, or with other 
 
 members of the Council, or with the common law judges. 
 
 Various statutes delegated to the Chancellor parts of the 
 jurisdiction claimed by the Council, e. g. to issue a Capias 
 to the sheriff for the arrest of those who commit felonies 
 and flee into an unknown place, and if that fails a writ of 
 proclamation ^. 
 
 The Chancery acted on the person, it had no power like 
 the common law courts to attach property. It could issue 
 
 ^ 13 Ed. I, c. 24. '^ Select Cases in Chancery, No. 106. 
 
 ' Ibid., No. 107. * Ibid., No. 95. ^ 2 Hen. V, s. 1, c. 9. 
 
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THE COURT OF CHANCERY 153 
 
 the subpoena, inattention to which was a contempt of the 
 royal authority to be visited in the last instance by a com- 
 mission of rebellion. 
 
 But the Chancellor's business was not confined to feoffment TheChan- 
 to uses : the jurisdiction was extended to afford relief against '^^.^ ^ 
 inequitable dealing, fraud, force, and generally in cases where 
 the practice of the common law was inelastic. Doubtless 
 the jurisdiction was in outline borrowed by him from the 
 Council and strengthened by repeated acts of delegation. 
 The following cases taken mainly from the Calendars of the 
 Proceedings in Chancery (temp. Richard II — Elizabeth) show 
 the variety of the complaints which came before him. 
 
 Kymberky v. Goldsmith. Bill for non-delivery to plaintiff" 
 'to his importable losse and hindryng' of a ton of woad 
 which defendant had sold him and which had been paid for 
 in wool ^. 
 
 A petition from ' your poor orator William de Egremont 
 parson of Workington ' alleging that one Richard Goldsmith 
 did horribly assault him in church, and imprisoned his ser- 
 vants till he paid £\Q as ransom. That our Lord the King 
 had sent writs, but only with the result of making him ' more 
 malicious and horrible than ever,' and that he subsequently 
 attempted to murder plaintiiF on the highway and still 
 threatens him so that he durst not abide in the country 
 or live in his parsonage (prayer for subpoena and that the 
 defendant find sufficient surety of the peace) ^, 
 
 Hodges V. Harry, temp. Henry VI. Petition to Chancery 
 to restrain defendant by oath from using the ' sotill craftys 
 of enchantement wychecraft and sorcerye ' whereby ' he brake 
 his legge and foul was hert ^.' 
 
 Godard v. William Ridmynton, probably temp. Henry V. 
 Bill addressed to the Master of the Rolls complaining that 
 
 * Cal. i. XX. ^ Seleot Oases in Chancery, No. 55. 
 
 ^ Oal. i. xxiv. 
 
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154 ENGLISH LEGAL INSTITUTIONS 
 
 defendant had ravished his servant maid, and beseeching the 
 Master of the Rolls to 'tenderly consider the premissis and 
 thereupon to set due correction ^Z 
 
 John Staveme v. John Bonynton. Petition to the Chancellor 
 for a writ of subpoena to be directed to a witness to come and 
 give evidence, and 'to declare the treweth in the matiers 
 foresaide ^.' 
 
 A very important part of the Chancellor's jurisdiction is 
 said to have arisen as follows. Covenants, agreements, and 
 declarations of trust used to be entered on the Close Rolls, 
 and it became customary to secure their performance by 
 a recognizance acknowledged in Chancery. The power of 
 issuing a writ of execution belonged to the court where the 
 recognizance was, and this court accordingly had first to 
 determine whether there had been default or not. 
 
 The following writs were employed by the Chancellor. The 
 subpoena, which was an order to attend in person and was 
 of general application. Thus a petition to the Chancellor 
 of our Lord the King that defendant find surety of peace 
 (1388), obtains it. 
 
 The Sub- ' Ricardus, &c., Thome Holbein, sal. Quibusdam certis 
 
 poena. (jg causis nos et consilium nostrum intime moventibus 
 
 tibi praecipimus firmiter iniungentes quod omnibus aliis 
 praetermissis et excusatione quacunque penitus cessante in 
 propria persona tua sis coram nobis et dicto consilio nostra 
 die sabbati proximo futuro ubicunque tunc fuerit ad 
 respondendum super hiis que tibi obiicientur tunc ibidem 
 ex parte nostra et ad faciendum ulterius et recipiendum 
 quod Curia nostra consideraverit in hac parte. Et hoc 
 sub poena centum librarum nullatenus omittas. Et habeas 
 ibi tunc hoc breve. T. meipso ^.' 
 
 A writ of Quibusdam certis de causis probably of earlier date 
 
 1 Cal. i. lix. 2 lbid.,xix. 
 
 ' Select Cases in Chancery, No. 7. 
 
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cum 
 causa.' 
 
 THE COURT OF CHANCERY 155 
 
 omitted the pecuniary penalty, and had ' sub gravi indigna- Quibus- 
 
 tione' or words similar^. The praemunire writ began with damcertis 
 
 T 1 1 ■ i> • /. '^^ causis. 
 
 the same phrase, as did the writ of venire facias. 
 
 This latter writ went to the sheriiF, directing him ' venire ' Venire 
 facias coram nobis in Cancellaria nostra,' presumably if it '^"^®- 
 was thought that the subpoena would not be attended to ^- 
 The defendant came or was brought, and was examined, viva 
 voce at first, later by written answers, but on oath. 
 
 K any one complained to the Chancellor that he was wrong- 
 fully imprisoned, the writ of corpus cum causa issued. Thus 
 in 1388 we have the following answer to a petition from 
 a man imprisoned as he says wrongfully for debt. 
 
 ' Ricardus, Vicec. London, sal. Praecipimus vobis fir- ' Corpus 
 miter iniungentes quod omnibus aliis praetermissis et 
 excusatione quacunque penitus cessante, habeatis coram 
 nobis in Cancellaria nostra die lune proximo futuro 
 ubicunque tunc fuerit lohannem Milner de Takely in 
 Comitatu Essex per vos in prisona nostra de Neugate 
 sub aresto detentum ut dicitur unacum causa arestacionis 
 et detencionis suae. Et hoc sub incumbenti periculo 
 nullatenus omittas hoc breve vobiscum deferentes. 
 T. meipso *.' 
 
 We may compare with these originals, the two most 
 familiar writs of the present day, the Subpoena and the 
 Habeas Corpus. 
 
 'Edward by the grace of God, &c. to . . . greeting. 'Sub- 
 We command you that laying aside all excuses and ipegy^f 
 pretences whatsoever you personally be and appear candum.' 
 before ... on the . . . of . . . there to testify the 
 truth and give evidence. And this you are not to 
 omit under the penalty of ^100 to be levied on the 
 goods and chattels lands and tenements of such of you 
 as shall fail herein.' {If ' duces tecum ' add : ' And that 
 
 ' Select Cases in Chancery, No. VJ. ' Ibid., No. 18. 
 
 s Ibid., No. 8. 
 
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156 ENGLISH LEGAL INSTITUTIONS 
 
 you or such of you in whose custody or power the same 
 be do bring with you and produce before . . . {pur 
 
 justices) . , . aforesaid . . .' (describe docwments). 
 
 'Habeas 'Edward by the grace of God, &c. to . . . greeting. 
 
 Subuci-*^ We command you that you have in the Queen's Bench 
 
 endum.' , Division of our High Court of Justice at the Royal 
 
 Courts of Justice in London immediately after receipt of 
 this Our Writ the body of ^. B. being taken and 
 detained under your custody as it is said together with 
 the day and cause of his being taken and detained by 
 whatsoever name he may be called therein, to undergo 
 and receive all and singular such matters and things as 
 our said Court shall then and there consider of con- 
 cerning him in this behalf, and have you there then this 
 our writ. 
 
 Witness.' 
 
 Injunc- In the reign of Henry VI we find the origin of the 
 
 equitable system of granting Injunctions. There was a case ^ 
 in which the plaintiff had given a bond in payment of certain 
 debts he had purchased. He then, on finding that he could 
 not bring an action to recover the debts in his own name, 
 filed a bill before the Lord Chancellor Waynflete to be 
 relieved from his bond. The case being adjourned into the 
 Exchequer Chamber, the judges held that the bond being 
 without consideration it should be cancelled by decree, which 
 the Chancellor accordingly pronounced. An action never- 
 theless was brought in the Common Pleas on the bond, 
 and succeeded, the Court holding that the Chancellor could 
 indeed imprison the contumacious party by way of enforcing 
 his decrees, but that the party could still sue on his legal 
 right in a court of law. To remedy this the Chancellor then 
 introduced the injunction by which he forbad the plaintiff 
 to proceed, or, if he had obtained judgement, to execute it. 
 This was a fruitful source of difference between chancery 
 
 » Year Book, 36 Hen. VI, 13. 
 
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THE COURT OF CHANCERY 157 
 
 and common law, which remained open till the famous battle 
 between Coke and Ellesmere. 
 
 In the Year Book 22 Edward IV, 37, we have a premo- 
 nition of variance. The Chancellor granted an injunction 
 after a verdict in the Kings's Bench on the ground that the 
 verdict had been obtained by fraud. The Lord Chief Justice 
 asked the plaintiiTs counsel if they would not pray judge- 
 ment, to which they said they were afraid of the injunction. 
 The Lord Chief Justice said no harm could come to them 
 except imprisonment, and if that happened ' apply to us for 
 a Habeas Carpus, and we will discharge you.' The matter 
 was apparently amicably arranged, and indeed at this period 
 the relations between the Chancellor and the judges were 
 close and friendly. He often consulted them, they often sat 
 with him, some writs ran ' per curiam cancellariae et omnes 
 iustitiarios ' or ' per decretum cancellarii ex assensu omnium 
 iustitiariorum.' The judges recognized the peculiar attri- 
 butes of chancery, and the occasions when resort might pro- 
 perly be niade to that court. On the other hand where 
 a man had a remedy at common law he should not have 
 a remedy in chancery. 
 
 The great advance that chancery made in this reign was The 'use.' 
 with regard to 'uses.' The judges said that the cestui que 
 use could maintain no action at law, for he had neither 
 ius in re nor ius in rem. 
 
 The Chancellors, therefore, 'with general applause' de- 
 clared that they would proceed by subpoena against the 
 feoffee to compel him to perform a duty which was in 
 conscience binding on him, and gradually extended the 
 remedy against his heir, and against his alienee with notice 
 of the trust, although they held, as their successors have 
 done, that the purchaser of the legal estate for valuable con- 
 sideration without notice might retain the land for his own 
 benefit. 
 
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158 ENGLISH LEGAL INSTITUTIONS 
 
 Cardinal The tenure of the Great Seal by Cardinal Wolsey was 
 marked by great vigour. He did not, as his predecessors 
 had done, call in the common law judges to assist him with 
 sits alone, their advice ; they complained that he issued his decrees 
 unduly : if they disregarded him he sent for them and repri- 
 manded them. But he enjoyed a high reputation for ability 
 and fidelity. So freely did he exercise his equitable autho- 
 rity, that the business in chancery grew enormously : of his 
 and makes own authority he established four new courts of equity in 
 Courts. ^^^ king's name. Only one survived the fall of their great 
 founder, and that was presided over by Cuthbert Tunstall, 
 The the Master of the Rolls. Till the Act 44 & 45 Vict. c. 68, 
 
 the RoUs *^^ Master of the Rolls sat separately for hearing causes in 
 chancery. In the 36th year of Henry VIII, 1544, Lord 
 Southampton, then Chancellor, gave a commission to the 
 Master of the Rolls ^ and three Masters in Chancery to hear 
 matters in his absence, but this was only a temporary matter. 
 
 The Com- In Elizabeth's reign the common law judges rebelled 
 Courts against the Chancellor's interference by injunction. The 
 
 and in- Chancellor took the position that his iurisdiction did not 
 
 junctions. . i • i 
 
 aftect to impeach the common law judgements ; but admit- 
 ting their validity merely relieved upon equitable considera- 
 tions arising thereon. The judges retorted that though the 
 Chancellor did not assume to examine their judgements, yet 
 by his decrees he took away their effect. 
 
 By 57 Eliz. c. 1, it was made a praemunire to apply to 
 other jurisdictions to impeach or impede the execution of 
 judgements given in the King's Courts, and in the thirty- 
 first year of Elizabeth a counsellor at law was indicted in 
 the King's Bench for exhibiting a biU in chancery after judge- 
 ment had gone against his client in the King's Bench ^ 
 
 ^ In the twentieth year of Edw. II, William de Armyn was made 
 Master of the Rolls to relieve the Chancellor of the custody of the 
 records. ^ Crompt. 67-58. 
 
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THE COURT OF CHANCERY 159 
 
 The Court of Chancery, however, pursued its way undis- 
 turbed. It had experienced some difficulty in enforcing its 
 decrees. The original process had been by subpoena attach- 
 ing the person. The Chancellors not finding this entirely 
 efficacious, invented (1) the commission of rebellion on which The com- 
 their officers proceeded to break open houses in execution rebellion 
 of the decree and arrest the party as a rebel, and (2) the 
 commission of sequestration to sequester the party's lands, and se- 
 The judges disliked this last commission extremely, and ^j^jj. 
 went so far as to say that if the sequestrator were resisted 
 or killed it would be only homicide se defendendo. 
 
 In 1616 matters came to a head in the great battle Coke and 
 between Coke and Lord EUesmere on the subject of injunc- mere, 
 tions. In a case in which, tried before Coke, a verdict had 
 been obtained by a gross fraud, the Chancellor perpetually 
 enjoined the successful party from proceeding to execute his 
 judgement. The verdict had been gained by decoying away 
 a necessary witness of the defendant and making the judge 
 believe he was dying. The witness was taken to a tavern, 
 and a bottle of sack ordered for him : as soon as he put it 
 to his mouth the emissary went back to court, and when 
 the witness was called the emissary swore that ' he had just 
 left the witness in such a state that if he were to continue in 
 it a quarter of a hour longer he would be a dead man.' 
 The Chancellor on learning this granted an injunction. 
 
 Indictments were then preferred against everybody, suitors, 
 solicitors and counsel for a praemunire for questioning in 
 equity a judgement obtained in the King's Bench. 
 
 The King, after taking advice with the great law officers. Settle- 
 supported the Chancellor not merely on the grounds that the dis- 
 they gave him, but added something about it being part of P*^*®" 
 his ' princely office ' and suitable for his ' princely wisdom '' to 
 determine disputes between his several courts. 
 
 From that time down to the Judicature Acts the power 
 
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160 ENGLISH LEGAL INSTITUTIONS 
 
 of the Court of Chancery to issue injunctions was never 
 disputed ^. 
 
 The strength of the jurisdiction of the Court of Chancery 
 lay in the writ of subpoena commanding the defendant to 
 appear, and the subsequent process against the person if 
 its decree was disregarded. Without too roughly wounding 
 Equity the susceptibilities of the common law judges by acting 
 Common directly against them, it obtained a virtual control over their 
 Law. courts by ordering a suitor on the application of the person 
 
 interested to refrain or desist from enforcing his legal 
 rights on pain of imprisonment. By this means it obtained 
 a practically exclusive jurisdiction over such matters as mort- 
 gages and trusts in which it took a different view of the 
 rights of parties from the courts of common law. It also 
 obtained a jurisdiction over the restraining of wrongs, the 
 winding up of partnerships and the taking of accounts which 
 the courts of common law neglected to assume, and forced 
 the defendant to make answer on oath to written interroga- 
 tories, a convenient mode of eliciting the truth, which was 
 in strong contrast to the practice of the common law by 
 which the parties to an action were not competent witnesses. 
 Such indeed was the slowness and want of elasticity of the 
 common law that had it not been for the genius of Lord 
 Mansfield the mercantile law of this country would have 
 found its way into equity. 
 
 Though at one time the Chancellor's equity was open 
 to the reproach of Selden that it varied with the length 
 of the Chancellor's foot, it gradually became systematized; 
 rules grew up because precedents were followed. Several 
 Chancellors, such as Lord Nottingham and Lord Eldon, have 
 gained fame on the ground that they powerfully contributed 
 to this result, but justice cannot be done to them here. 
 
 ' See Hoarev. Bremridge, L. R., 14 Eq. 622. 
 
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THE COURT OF CHANCERY 161 
 
 By 53 Geo. Ill, c. 24<, the Crown was authorized to appoint The Vice- 
 a Vice-Chancellor to help the Lord Chancellor. cdlors 
 
 By 5 Vict. c. 5 two more Vice-Chancellors were appointed, 
 on the occasion when the equitable jurisdiction of the Court 
 of Exchequer was taken away. 
 
 In 1851 were created two Lord Justices of Appeal in The Lords 
 Chancery, who together with the Lord Chancellor should Appeal in 
 form the Court of Appeal in Chancery ^. Chancery. 
 
 From that court appeal lay to the House of Lords ^- 
 M4 & 15 Vict. c. 83. " Ibid., § 10. 
 
 U 
 
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CHAPTER XVI 
 
 THE COURT OF REQUESTS 
 
 Its origin. The origin of this court is attributed by Palgrave and 
 Spence to the order of 13 Ric. II regulating the procedure of 
 the Council ^, which said that the Lord Privy Seal together 
 with such of the Council as were then present should expedite 
 (exploiter) the bills of the lesser folk, and hence Palgrave 
 deduces the claim of Lord Privy Seal to preside in the Court 
 of Requests. There seems, however, no authority for saying 
 that the Court of Requests dated from that period. The 
 learned editor of the Select Cases in the Court of Requests % 
 states that he first finds the name ' Court of Requests ' in 
 1529, and in the sentence which he quotes, ' Hereafter folowe 
 the names of such Counsaillours as be appoynted for the 
 heryng of power mennes causes in the Kynges Courte of 
 Requestes,' he points out that stress is laid on the fact that 
 the judges are Councillors. 
 
 The order of Richard II made a Committee of Council, and 
 the true view would appear to be that for a long time the 
 court was either a delegation or an aspect of the Council, 
 similar in character to the early position of the Court of 
 Chancery and the Star Chamber, and deriving its authority 
 from that fact. 
 
 Henry VII made it a definite tribunal, and nominated the 
 
 ^ Vide supra, p. 120. 
 
 " Edited for the Selden Society by I. S. Leadam, xiv. 
 
 Its con- 
 nexion 
 with the 
 Council. 
 
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THE COURT OF REQUESTS 163 
 
 members, thus turning into a permanent or standing com- 
 mittee what had before been a haphazard meeting of 
 councillors. But even then, its intimate connexion with the 
 Council and the Star Chamber is attested by the list of 
 Sir Julius Caesar^, which shows that all the judges in the 
 Star Chamber from the ninth year of Henry VII down to 
 the third and fourth of Philip and Mary sat altemis vicibus 
 in the King's Comt at Whitehall commonly called the Court 
 of Requests, or wherever the king held his council, for the 
 hearing of private causes between party ai^d party. The 
 Lord Privy Seal had also a seat in the Star Chamber. 
 
 Wolsey placed the Court of Requests permanently in The Poor 
 Whitehall, for the expedition of poor men's causes (1515-9). Court. 
 Till then, this 'Court,' as it was called, 'of Poor Men's 
 Causes,' attended the royal person on the royal progresses, 
 and it is not till about 1497 that its books indicate that any 
 difference is made between term and vacation. Mr. Leadam 
 pertinently remarks that this discrimination, when it was 
 made, indicates that a professional element was getting con- 
 trol of the court. Suppliants to the court alleged usually, 
 either that they were too poor to sue at common law or 
 that they were king's servants attending the royal person. 
 When the professional element first appeared in the court Its com- 
 it is hard to say, but at the end of the reign of Henry VIII P°*' '""■ 
 'the court was composed of professional lawyers, civilians 
 and canonists, and the judges were styled Masters of 
 Requests ^.' 
 
 Since the accession of Henry VII the court had never 
 been idle ; in especial, it had taken the part of copyholders 
 who were suffering under the enclosures of their lords. When 
 the dissolution of the monasteries had given estates to needy 
 courtiers, and rising prices made land more valuable, the 
 tenantry were forced to invoke assistance in increasing 
 
 ^ Select Cases inGowrt of Bequests, cvi, cviii. * Ibid., xvi. 
 
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164 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Its func- 
 tions. 
 
 Hostility 
 of the 
 Common 
 
 Courts. 
 
 numbers, and the legal element in the court became more 
 prominent. Two permanent judges, ' Masters of Requests 
 Ordinary,' ' began towards the end of Henry VIIFs reign to 
 control the work of the court ^' Elizabeth, being much in 
 love with royal progresses, required the old machinery to deal 
 with such petitions of justice and grace as were presented to 
 her en route. Two Masters of Requests Extraordinary were 
 then appointed to reinforce the court, and this set free two 
 to accompany her. 
 
 After the accession of James I, four Masters in Ordinary 
 were appointed, but as the volume of business became very 
 heavy, and as the king still went on progresses, there were 
 great complaints of the irregularity of the sittings and the 
 delays which naturally resulted. 
 
 The functions that the court during this period discharged 
 were analogous to those of the Council, at any rate prior to 
 the reign of Henry VII. There is this difference, that the 
 Court of Requests entertained only civil business, but both 
 are alike in this, that they offered relief to those who either 
 from disadvantages personal to themselves or from the rigidity 
 of the common law were unable to get justice. Here was the 
 poor man's court of equity, and it is beyond question that 
 it attracted an abundant amount of business. 
 
 Its jurisdiction was, however, to be seriously attacked. So 
 long as it was incontestably a committee of the Council, its 
 position was as impregnable as that of the Star Chamber. 
 But when the councillors disappeared from the board and 
 the purely professional element remained, it was vigorously 
 asserted by the common law courts that here was, in effect, 
 a new commission which the crown could not grant, and that 
 if a suitor desired equity there was the Court of Chancery 
 open to him. 
 
 It was doubtless the truth that however theoretically 
 * Select Cases in Court of Bequests, xix. 
 
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THE COURT OF REQUESTS 165 
 
 perfect the legal succession, practically this court could not, 
 as now constituted, claim the support of immemorial custom. 
 The Privy Council, that is the active members of the Council, 
 had become a distinct body: Privy Councillors sat in the 
 Star Chamber, they did not sit in the Court of Requests ; 
 the Star Chamber had in addition some statutory authority, 
 the Court of Requests had none. 
 
 On January 16, 1597, Sir Julius Caesar, one of the Masters Sir Julius 
 of Requests Ordinary, writing to Lord Burghley, enclosed defence. 
 a memorandum in defence of the Court of Requests, main- 
 taining that it was ' member and parcell of the King's most 
 honourable Counsell attendant on his person,' and giving 
 one or two instances in which the common law coiuls had 
 recognized the court, one case particularly in which by letter 
 the Common Pleas requested the intervention of the Court of 
 Requests ' being a court of equity ' to stay their own common 
 law process. This happened in 1585, but within a few years 
 the attitude of the common lawyers had entirely changed. 
 It is not very profitable to discuss motives, but it is certain 
 that the extensive operations of the Covu± of Requests, due 
 possibly to greater cheapness and less technicality, materially 
 diminished the quantity of business which came to the com- 
 mon law courts, and thus diminished the fees payable therein. 
 Prestige and profits were alike affected. The Requests 
 entertained suits which, the defendants constantly said, were 
 determinable at the common law, it issued injunctions stay- 
 ing suits at common law, and forbidding defendants to sue 
 the plaintiff pending the suit in the Requests or after judge- 
 ment, and took bonds of the parties to perform its decrees. 
 It is also possible that this dislike was strengthened by the 
 growing jealousy of the Prerogative. 
 
 At any rate in 1590, according to the authorities, the 
 attack commenced. The Common Pleas, speedily reinforced 
 by the Queen's Bench, commenced to issue prohibitions to 
 
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166 ENGLISH LEGAL INSTITUTIONS 
 
 plaintiffs in the Requests, issued writs of habeas corpus in 
 favour of persons imprisoned by the Requests for contempt, 
 and in Stepney's case (40 & 41 Eliz. 1598) it was adjudged, 
 according to Coke ^, that the Requests was no court that had 
 power of judicature, but that all proceedings there were coram 
 mm ivdke, and that an arrest under a warrant of Privy Seal 
 was false imprisonment. 
 
 When we remember Sir Edward Coke's furious indignation 
 against the injunctions of the Court of Chancery, it is not 
 surprising that he threw the weight of his authority against 
 the Requests. The year after he became Chief Justice of the 
 Common Pleas all the judges agreed that a perjury in the 
 Court of Requests was not punishable, ' for it is but a vain 
 and idle oath and not a corrupt oath because the Court of 
 Requests have nothing to do with nor can examine titles of 
 land.' Qvod rwta, adds the reporter ^. 
 
 Its disap- It has been generally accepted on the authority of Spence 
 and Palgrave that the Requests never survived the blow they 
 received in the forty-first year of Elizabeth. Now that 
 Mr. Leadam's book is published it is impossible to hold that 
 view. Blackstone^ said that the court was 'virtually 
 abolished ' by 16 Car. I, c, 10 (1640), commonly known as 
 the Act aimed against the Star Chamber and the courts of 
 cognate derivation. 'Virtually,' for the court is not men- 
 tioned in the Act, and as a fact continued without apparently 
 any challenge. Between April 28 and May 17, 1642, 
 Mr. Leadam has counted in its books of orders and decrees 
 656 orders made ! In August of that year the Civil War 
 broke out, the Privy Seal was withdrawn, the legal machinery 
 lost, and the court died a natural death. 
 
 > Inst, iv. 9, fo. 97. ^ Yelverton, 3rd ed.. 111. 
 
 ' Comm., iii. 51. 
 
 pearance. 
 
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CHAPTER XVIT 
 
 THE COURT OF ADMIRALTY 
 
 The history of the jurisdiction of this court is, says its origin. 
 Bishop Stubbs, ' as yet obscure." Prynne ^ asserts that there 
 was an Admiralty Court with civil and criminal juris- 
 diction temp. Henry I which dated from Saxon times, but 
 his authority is the Black Book of the Admiralty, which is 
 now supposed by the best authorities ^ to have been written 
 in the fifteenth century and of which the matter is not 
 earlier than the fourteenth century, the references to the 
 times of Henry I and John being considered apocryphal. 
 
 The title of Admiral does not occur much before the The office 
 fourteenth century, and then in connexion with the French ^jj^j' 
 possessions of the English Crown. In the Vascon Roll 
 23 Ed. I, we find mention of the appointment of an 
 Admiral of ' the Baion fleet ' ; in 1300, Gervase Alard was 
 made Admiral of the fleet of the Cinque Ports, and this is 
 the earliest known use of the title in England ^ The word 
 itself was employed in the Mediterranean navies, and is 
 believed to have come from the east by way of Genoa. 
 
 The Admiralty courts appear somewhere between 1340 Admiralty 
 
 Courts. 
 
 ^ Animadversions, 106. 
 
 ^ Select Pleas in the Court of Admiralty (Selden Society), Introd. 
 
 ' Holtzendorff, Handbueh des Volkerrechts, 346 and 350, says that 
 William de Leyboume has the title 'Admiral de la mer du Roy 
 d'Angleterre' in 1286. See Diet. Nat. Biog., s. v., W. de Leybourne. 
 As to prize jurisdiction see Holtzendorff, 351, 6 (vol. i. § 76), n. 3,6. 
 
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168 ENGLISH LEGAL INSTITUTIONS 
 
 and 1357, in consequence, it is said, of the difficulties ex- 
 perienced by us in dealing with piracy or ' spoil ' claims by 
 or against foreign sovereigns. Before 1340 there was a con- 
 stant correspondence between ourselves and foreign kings on 
 this topic and on the alleged inability of injured persons 
 to obtain justice. Our courts of common law when the 
 plaintiff was a foreigner seem to have given no redress. 
 
 The matter was brought prominently before the notice 
 of Edward III when he had to pay out of his own pocket 
 damages for outrages committed on his allies the Genoese by 
 his own subjects. In 1340 the battle of Sluys which gave 
 him maritime supremacy, and allowed him to assert his 
 claim to be sovereign of the sea, offered him the opportunity 
 of founding an Admiralty Court to keep the king's peace 
 thereon. 
 
 Con- Down to the early part of Edward Ill's reign, admiralty 
 
 Mxion ot matters came either before the common law com^s, the 
 Council Chancellor, or the Council (there is one case before the 
 miralty' Council in 1352); piracy, reprisals, and letters of marque 
 affairs. were considered specially within the purview of the Chan- 
 cellor and to be 'the most noble and eminent piece of his 
 jurisdiction.' (Hale.) 
 
 At the same time there were several maritime towns, e. g. 
 Ipswich and Padstow, which had from a very early period 
 ' Courts of the Seaport,' which administered the law maritime. 
 Between these courts and the Admiral's Court, there arose dis- 
 putes as to jurisdiction, and in consequence two statutes^ were 
 passed defining and restricting the jurisdiction of the Admiral, 
 while at the same time the crown granted charters of exemp- 
 tion to various towns from the Admiral's authority, and in some 
 cases, such as Yarmouth, Dartmouth, and Rochester, express 
 grants of admiralty jurisdiction were made to the town. 
 
 We are able from the records published by the Selden 
 ' 13 Ric. II, St. 1, c. 6 and 15 Ric. II, st. 2, c. 3. 
 
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THE COURT OF ADMIRALTY 169 
 
 Society to see what the Admiralty courts were doing before 
 the statute of Richard II was passed in 1389. 
 
 In 1353 a case as to ownership of goods recaptvu:ed from 
 pirates was tried before the Admiral and Council. 
 
 In 1357 there is an answer to the King of Portugal about 
 some Portuguese goods which had been taken by the English 
 from a French ship which had ' spoiled ' a Portuguese vessel. 
 Edward III says that the admiral had decided that the goods 
 were good prize. 
 
 In 1360 John Pavely is made captain of the fleet with A judicial 
 power to hold pleas (querelae). This is the first instance of gi^™™^" 
 such a commission. In the same year Beauchamp is given 
 the command of the fleets of the north, south, and west, with 
 grants of maritime jurisdiction. 
 
 In 1361 a commission to Sir R. Herle to try a case of 
 piracy and murder according to the common law, was recalled 
 on the advice of the Council, on the ground that by common 
 law felonies, trespasses, and injuries done on the seas, should 
 be tried by the admiral by the law maritime. 
 
 The theory of the common lawyers was that all matters Exclusive 
 arising outside the jurisdiction of the common law, i.e. J^i^djp- 
 outside the body of a county, were inside the jurisdiction the Ad- 
 of the Admiralty^. Crimes committed at sea were till 
 Statute 28 Hen. VIII, c. 15, indisputably within its juris- 
 dictional competence. ' That this court had originally 
 cognizance of all transactions civil and criminal, upon the 
 high seas in which its own subjects were concerned is no 
 subject of controversy" (per Lord Stowell in The Hercules ^). 
 And in fact, criminal cases even of the degree of capital 
 were habitually tried in the Admiralty, sometimes without 
 a jury, down to the time of Henry's statute. Piracy, we 
 may notice, was seemingly not a common law felony, for 
 
 1 4 Inst. 134-5. " 2 Dod. 371. 
 
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170 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Statutory 
 limita- 
 tions in 
 the in- 
 terest of 
 the Com- 
 mon Law 
 Courts. 
 
 The first 
 patent for 
 a judge of 
 the Court. 
 
 in 1429 Parliament petitions that it may be made so, and 
 gets for an answer, Le Roi s'avisera. 
 
 In 1364 there occurs a supersedeas to justices, to stay 
 proceedings on an indictment for a nuisance by driving piles 
 into the beds of certain creeks near Colchester, because it 
 hadf been dealt with in the AdmiraVs Court. 
 
 In 1369 an action on a charter party is tried before the 
 Admiral, and an action on the same matter in the sheriff's 
 court of London is stayed on production of the certificate. 
 
 The two statutes of Richard II (13 Ric. II, st. 1, c. 5, and 
 15 Ric. II, st. 2, c. 3) may be conveniently read together. 
 
 The first recites the complaints against the Admirals and 
 their deputies for holding sessions in divers places within and 
 without franchises, impoverishing the common people &c., 
 and the second provides that the Admiral's Court is to take 
 no cognizance of contracts, pleas, and quarrels, and all other 
 things arising within the bodies of the counties : but it may 
 take cognizance of the death of a man and of mayhem in 
 great ships hovering in the main stream of great rivers, but 
 only beneath the bridges of the same rivers nigh to the sea, 
 and in no other places. 
 
 The precedents in the Black Book of the Admiralty show 
 that the business of the court during the fourteenth and 
 fifteenth centuries consisted of criminal, mercantile, and ship- 
 ping cases. 
 
 In 1482 we have the first patent appointing a judge of the 
 Admiralty Court, to hear cases 'de iis quae ad curiam prin- 
 cipalem Admirallitatis nostrae pertinent ^.' 
 
 In 1509-19 Henry on his accession made treaties with 
 France providing for special tribunals to try piracy claims 
 with dispatch. In England, the Earl of Surrey the Lord 
 High Admiral, Cuthbert Tunstall, M.R., and Christopher 
 
 • Pat. 22 Ed. IV, pt. 1, m. 2. 
 
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THE COURT OF ADMIRALTY 171 
 
 Middleton, judge of the Admiralty, were appointed judges. 
 Judgement was to be given on the merits ' sine strepitu et 
 figura iudicii sola facti veritate inspecta.' No appeal was 
 allowed, except to the Council on bail. 
 
 Till that reign the Court of Admiralty exercised both civil 
 and criminal jurisdiction in virtue of the royal prerogative. 
 It was nearly connected with the Council, and it was inde- 
 pendent of the common law. 
 
 As in that reign its powers were much curtailed, it is Criminal 
 probably convenient to deal first with the history of its jj^ij™ 
 criminal jurisdiction. 
 
 The Statute 28 Hen. VIII, c. 15, recites that people Henry 
 
 committing offences on the sea often escape punishment, gg^^ig. 
 
 because it is hard to get witnesses, if the prisoners will ment: 
 
 victorv 
 not confess, which they will not do without torture. Ac- of the 
 
 cordingly all treasons, felonies, robberies, murders, and con- Common 
 ° •' . Lawyers, 
 
 federacies committed within the admiralty jurisdiction shall 
 
 be judged according to the Common Law, before the Admiral 
 
 or his deputy, and three or four other substantial persons 
 
 appointed by the king. 
 
 As a fact these ' substantial persons ' were always common 
 law judges, who thus gained the control of this mixed 
 commission. 
 
 Then came some very intricate legislation, which produced Recent 
 the result that all crimes committed at sea can be tried before ^^ ^ 
 any court in England if otherwise competent, or before any 
 Supreme Court in a colony, or any High Court in India. 
 
 By the Central Criminal Court Act ^ that court was em- 
 powered to try all offences committed within the admiralty 
 jurisdiction. 
 
 By 7 & 8 Vict. c. 2 (1844), all commissioners of Oyer and 
 Terminer or Gaol Delivery have all the powers which the 
 
 > 3&4Will. IV, c. 36. 
 
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172 ENGLISH LEGAL INSTITUTIONS 
 
 commissioners under the act of Henry VIII would have had. 
 The Consolidation Act of 1861 is to the same effect. 
 
 Besides these statutes, the Merchant Shipping Acts makes 
 similar provision for the punishment of crimes committed 
 at sea. 
 
 Admiralty jurisdiction begins below low watermark, such 
 being not within the body of any county, and when the tide 
 is in, below high watermark. 
 
 The three In the case of The Queen v. Keyn ^, the majority of the 
 judges held that the Admiral's jurisdiction does not extend 
 over a crime committed iy a foreigner on board a foreign 
 ship within three miles of the coast. This was amended 
 by the Territorial Waters Jurisdiction Act, 1878, but it 
 was provided that proceedings in such a case shall not be 
 instituted without the consent and certificate of a Secretary 
 of State. 
 
 Civil With regard to the civil jurisdiction of the admiralty, the 
 
 diction. common law courts never attempted to prohibit the Comrt 
 
 of Admiralty in relation to wrongs committed on the high 
 
 seas. But the jurisdiction with regard to contracts was 
 
 bitterly contested. 
 
 By Statute 32 Hen. VIII, c. 14, the admiralty got juris- 
 diction to try cases on contracts made abroad, biUs of 
 exchange, charter parties, insurance, average, freight, non- 
 delivery of cargo, damage to cargo, negligent navigation, and 
 breach of warranty of seaworthiness. 
 
 By his letters patent the king conferred wide jurisdiction, 
 ' statutis in contrariam non obstantibus,' previous patents 
 having always been limited agreeably to the statutes of 
 Richard II. The letters patent of 1547 include ' any thing, 
 matter, or cause whatsoever, done or to be done as well upon 
 the sea as upon sweet waters and rivers from the first bridges 
 
 * L. R., 2 Ex. D. 63. 
 
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THE COURT OF ADMIRALTY 173 
 
 to the sea throughout our realms of England or Ireland or 
 the dominions of the same.' 
 
 On the death of the Earl of Lincoln, the Lord High 
 Admiral in 1585, the question arose whether the judge of 
 the Admiralty Court could sit and decide cases during the 
 vacancy. The Queen was advised that he could, and that 
 the judge was appointed by the king's letters patent, so that 
 he was judge of the Admiralty, ' be there an admiral or no 
 admiral.' The Queen, nevertheless, ex dbundanti cautela, 
 issued a special commission. 
 
 About 1570 we find the Admiralty complaining that the Jealousy 
 common law courts are encroaching ^. The Queen then Common 
 
 wrote to the mayor and sheriflEs of London that this is ^^ 
 
 Courts. 
 ' very strange,' and tells them not to do so. But the com- 
 plaints still go on, and, in 1575, a special commission issues 
 to the Admiralty, empowering it to hear cases on charter 
 parties, bills of lading, bills of exchange, insurance, freight, 
 bottomry, necessaries for ships, and contracts binding ships, 
 others being prohibited from taking cognizance of such pleas. 
 
 Shortly after this, it is said that the Admiralty Court and A 'con- 
 the common law judges came to an agreement as to the limits 
 of their jurisdictions as follows : — 
 
 (1) After sentence pronounced by the Court of Admiralty, 
 no prohibition to be granted at common law unless applied 
 for within next term. 
 
 (2) The judge of the Court of Admiralty to be allowed to 
 appear and show cause against the prohibition. 
 
 (3) The judge of the Covurt of Admiralty is by custom, 
 time out of memory, to have cognizance of all contracts and 
 other things arising beyond and upon the sea without let or 
 prohibition. 
 
 ' For an instance of the Q. B. being rebuked for prohibiting the 
 Admiralty, see Dasent, xv. N. S. 314 (1687). 
 
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174 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 The Com- 
 mon Law 
 and Ad- 
 miralty 
 juris- 
 dictions 
 mutually- 
 exclusive. 
 
 The fiction 
 of the 
 Common 
 Lawyers. 
 
 Legisla- 
 tion. 
 
 (4) The Court of Admiralty to have cognizance of breaches 
 of charter parties over sea voyages according to 32 Hen, VIII, 
 c. 14, though such were made within the realm. 
 
 In 1632, the judges were summoned to the Privy Council 
 to advise on the same matter, and they signed a paper much 
 to the same eflFect. 
 
 But the rivalry continued. The common law gave no 
 remedy in cases of contracts made or torts committed abroad. 
 The admiralty jurisdiction was taken to supply this defi- 
 ciency, but not to apply within the body of a county. The 
 common law watched the proceedings of the Admiralty with 
 great attention and issued prohibitions without mercy. The 
 Admiralty vainly asserted its jurisdiction over claims for 
 necessaries and materials supplied to ships or over charter 
 parties. Unless the contract was actually made, or the goods 
 actually supplied on the high sea, the prohibition went, for 
 the Admiralty was not a court of record. 
 
 Blackstone ^ writes, ' it is no uncommon thing for a plaintiff 
 to feign that a contract really made at sea was made at the 
 Royal Exchange or other inland place, in order to draw the 
 cognizance of the suit from the Court of Admiralty to those 
 of Westminster Hall.' 
 
 The admiralty jurisdiction over contract thus gradually 
 fell into disuse, and the same fate befell it in respect of torts 
 of a ' transitory ' description. 
 
 In consequence of the great inconvenience caused to parties 
 by this state of affairs, in 1840 the first Admiralty Court 
 Acts were passed^, which increased the jurisdiction of the 
 court, and gave it power to enforce its decrees. In 1854, 
 the Merchant Shipping Act, and the Second Admiralty Court 
 Act ^, increased its procedural efficiency, and its powers with 
 respect to cases of wages and salvage. 
 
 Oomm., iii. 106. 
 
 ^ S&i Vict. cc. 65 and ( 
 
 17 & 18 Vict. cc. 78, 104. 
 
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THE COURT OF ADMIRALTY 175 
 
 In 1861, the third Admiralty Court Act ^ gave it almost 
 all the jurisdiction it asked except in cases of charter parties, 
 viz. over claims for building, equipping, and repairing ships, 
 claims for necessaries supplied to ships, claims for damages to 
 cargo imported, claims for damages done by ships, questions 
 touching ownership, claims for wages and disbursements by 
 masters, and in respect of registered mortgages. 
 
 The jurisdiction conferred by the Act might be exercised 
 either by proceedings in rem or in personam. 
 
 After the third Admiralty Court Act was passed, the 
 advantages of speedy administration of justice were so obvious 
 that the jurisdiction was delegated in the smaller cases to 
 the county courts around the coast, by the County Courts 
 Admiralty Jurisdiction Act, 1868, the operation of which was 
 extended by another statute passed the next year. The old Old mari- 
 local maritime courts had been abolished by the Municipal Courts 
 Corporation Act, 1835 ^ the Cinque Ports Admiralty Court abolished. 
 alone surviving. 
 
 Appeals from the Admiral went in the fifteenth century to Admiralty 
 delegates appointed by the crown, or special commissioners 
 ad hoc. In 1534 ^ commissioners called Delegates of Appeals 
 were appointed to hear appeals from the ecclesiastical and 
 admiralty courts. Their powers were by 2 & 3 Will. IV, 
 c. 92, transferred to the King in Council, and by 3 & 4 
 Will. IV, c. 41, the Judicial Committee of the Privy Council 
 was formed to take all appeals which may be brought before 
 the King in CouncU. 
 
 By the Judicature Act of 1873, the Court of Admiralty * Merger in 
 
 was merged in the High Court of Justice, and so indirectly Court of 
 
 Justice. 
 1 24 & 26 Vict. c. 10. , ^ 5 & g vTill. IV, c. 76. 
 
 ' 25 Hen. VIII, c. 19. 
 
 * By 20 & 21 Vict. c. 85, it was provided that the judge of the 
 newly-established Court of Probate might also be the judge of the 
 Admiralty Court at the next vacancy. 
 
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176 ENGLISH LEGAL INSTITUTIONS 
 
 obtained jurisdiction over all maritime causes, though limited 
 as to its jurisdiction in rem to those causes as to which its 
 jurisdiction was either original or given by statute. Appeals 
 lie to the Court of Appeal and thence to the House of 
 Lords. 
 
 The Vice-Admiralty Courts in the Colonies. 
 
 The These were established as a means of giving effect to the 
 
 Vice-Ad- existing jurisdiction of the Admiral's Court. 
 Courts^ III 1832, in view of doubts felt as to the jurisdictional 
 
 competence of these courts in causes of action arising outside 
 the limits of such colonial possession, the statute 2 & 3 
 Will. IV, c. 51 was passed declaring this jurisdiction to exist 
 in those cases usually tried in the Admiralty Court, viz. 
 collision, salvage, pilotage, bottomry, respondentia, &c. 
 
 From these courts, appeal lay to the Privy Council. 
 
 By the Vice- Admiralty Courts Act, 1863 ^, it was enacted 
 that the governor of a colony should be ex officio vice-admiral, 
 and that the chief justice of a colony should be ex officio the 
 judge of the court. The matters over which the court was 
 to have jurisdiction were set out in sec. 10, whether or no 
 the cause of action arose within or outside the limits of the 
 colonial possession. Appeal lay to the Privy Council within 
 six months. 
 
 In 1890 the Colonial Courts of Admiralty Act ^ was passed. 
 By it every court of law in a British possession, having in 
 the said possession original unlimited civil jurisdiction, shall 
 be a court of admiralty, and can employ in its admiralty 
 jurisdiction all the power it possesses for its other civil juris- 
 diction. Its jurisdiction shall be the same as the admiralty 
 jurisdiction of the High Court in England and it shall 
 exercise it in like manner. 
 
 Appeal lies to the local Appellate Court and thence to the 
 Privy Council. 
 
 1 26 Vict. c. 24. = 53 & 64 Vict. c. 27. 
 
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CHAPTER XVIII 
 
 THE JUDICATURE ACTS 
 
 By the Judicature Act of 1873 ^ which, after being deferred The Act 
 
 of 1873 
 for a year, came into operation on November 1, 1875, the 
 
 whole judicial system of this country was remodelled. 
 
 At the time that the Act was passed the Common Law, The 
 as we have seen, was administered in the courts of Queen's mad^ 
 Bench, Common Pleas, and Exchequer, each with a staff of 
 a Chief and his puisnes. From these courts lay appeal to the 
 Court of Exchequer Chamber (Cam. Scacc), and thence to 
 the House of Lords. 
 
 The equitable jurisdiction of the Court of Chancery was 
 exercised by the Lord Chancellor, the Master of the Rolls, 
 and three Vice- Chancellors sitting as judges of first instance. 
 The Lords Justices sat with the Lord Chancellor as a Court 
 of Appeal, and from them appeal lay to the House of 
 Lords. 
 
 Testamentary and matrimonial business was originally 
 taken by the Prerogative Courts of Canterbury and York : 
 in 1857 the Court of Probate and the Court for Divorce 
 and Matrimonial Causes were established and took over this 
 jurisdiction. From the Court of Probate appeal lay to the 
 House of Lords ^. It was provided that the Judge of the 
 Court might also be the Judge of the Admiralty Court at 
 the next vacancy. The Court for Divorce and Matrimonial 
 
 1 36 & 37 Vict. c. 66. 2 20 & 21 Vict. c. 77, § 39. 
 
 N 
 
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178 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 The 
 
 Supreme 
 Court : 
 
 (1) The 
 High 
 Court of 
 Justice. 
 
 (2) The 
 Court of 
 Appeal. 
 
 Causes was formed of the Lord Chancellor, the three Chiefs, 
 and the Senior Puisne Judge in each Common Law Court, 
 and the Judge of the Court of Probate, this latter being the 
 ' Judge Ordinary.' From the Judge Ordinary appeal lay to 
 the full Court, and from that in petitions for the dissolution 
 of Marriage to the House of Lords. 
 
 Under the Act creating it ^, the Court acquired the addi- 
 tional power of decreeing dissolution of marriage, which till 
 then could only be effected by Act of Parliament. 
 
 By the Act of 1873 all these Courts were united and 
 consolidated together and constituted one Supreme Court of 
 Judicature in England (§ 3). 
 
 This Supreme Court consists of two permanent divisions. 
 His Majesty's High Court of Justice, and His Majesty's 
 Court of Appeal (§ 4). 
 
 The High Court of Justice was to be constituted of the 
 Lord Chancellor, the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice of the Common 
 Pleas, the Lord Chief Baron of the Exchequer, the Vice- 
 Chancellors, the Judge of the Court of Probate and of the 
 Court for Divorce and Matrimonial Causes, the Puisnes of 
 the three Common Law Courts, and the Judge of the High 
 Court of Admiralty. 
 
 All these judges to have (except as otherwise provided) 
 equal power, authority, and jurisdiction. In the absence of 
 the Lord Chancellor the Lord Chief Justice of England to be 
 President (§ 5). 
 
 The Court of Appeal was to be constituted of five ex officio 
 judges, viz. the Lord Chancellor, the Master of the Rolls 
 and the three Chiefs, of ordinary judges not more than nine 
 in number (who were to be the Lords Justices of Appeal 
 in Chancery), the existing salaried judges of the Judicial 
 
 » 20 & 21 Vict. c. 85. 
 
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THE JUDICATURE ACTS 179 
 
 Committee of the Privy Council appointed under the Act of 
 1871 (four in number), and such three other persons as 
 Her Majesty might be pleased to appoint by letters patent. 
 The Lord Chancellor to be President (§ 6). 
 
 The jurisdiction of the High Court of Justice was to 
 include all the jm:isdiction of all the courts thus consolidated, 
 together with the jurisdiction of the Court of Common Pleas 
 at Lancaster, the Court of Pleas at Durham, Commissioners 
 of Assize, Oyer and Terminer, and Gaol Delivery, subject to 
 certain specified exceptions. 
 
 The new Court of Appeal was to have the powers and 
 jurisdiction of the Lord Chancellor and the Lords Justices in 
 equity, of the Exchequer Chamber in common law, and of the 
 Privy Council in admiralty appeals. 
 
 This Act provided for the extinction of the appellate Threat- 
 
 PTlPn n P— 
 
 jurisdiction of the House of Lords and Privy Council, but struction 
 
 as this pohcy was reversed by the Appellate Jurisdiction of the 
 
 '^ ■' . •' 1 Lords and 
 
 Act of 1876 (vide infra) it needs no more than a passing Privy 
 
 observation. C-f. 
 
 Law and equity are to be concurrently administered in \^°^' , 
 , . i^^ and 
 
 every court by every judge. Claims, defences, and relief. Equity 
 
 equitable estates, titles, rights, and all equitable duties and "^^^ 
 
 liabilities appearing incidentally, are to be recognized in the 
 
 same manner as the Coirrt of Chancery would have recognized 
 
 them prior to the passing of the Act. 
 
 Any barrister of not less than ten years' standing is qualified 
 to be appointed a judge of the High Court (§ 9). 
 
 The judges hold office for life subject to a power of 
 removal by the Sovereign on an address presented to him by 
 both Houses of Parliament. No judge can sit in the House 
 of Commons (§ 9). 
 
 By § 81 the High Court of Justice was divided into five The 
 ,. . . divisions 
 
 divisions : 
 
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180 ENGLISH LEGAL INSTITUTIONS 
 
 of the The Chancery Division consisting of the Lord Chancellor, 
 
 Court : the Master of the Rolls, and the Vice-Chancellors. 
 
 Q. B. D. The Queen's Bench Division consisting of the Lord Chief 
 
 Justice, and the puisnes of the Queen's Bench. 
 C. P. D. The Common Pleas Division consisting of the Lord Chief 
 
 Justice, and the puisnes of the Common Pleas. 
 Ex. D. The Exchequer Division consisting of the Lord Chief Baron, 
 
 and the barons of the Exchequer. 
 P.,D.and The Probate, Divorce, and Admiralty Division consisting 
 
 of the existing judges of the Probate Court and Admiralty. 
 
 By § 32 the Crown was authorized by Order in Council 
 to alter these divisions and abolish on a vacancy any of the 
 following offices, viz. of Lord Chief Justice of England, Master 
 of the Rolls, Lord Chief Justice of the Common Pleas, and 
 Lord Chief Baron of the Exchequer. 
 
 Consoli- (By Order in Council, December 16, 1880, the offices of 
 
 the Com- Chief Justice of the Common Pleas and Chief Baron were 
 
 mon Law accordingly abolished, and the Divisions of Queen's Bench, 
 Divisions. t T 1 1 \ 
 
 Common Pleas, and Exchequer were consolidated.) 
 
 By § 34 certain business is assigned (subject to modification 
 by Rules of Court) to particular Divisions. Thus to the 
 Chancery Division are assigned inter alia causes and matters 
 for the following purposes — administration of the estates of 
 deceased persons, dissolution of partnerships and taking 
 accounts, redemption and foreclosure of mortgages, the execu- 
 tion of trusts, the rectification and setting aside of deeds 
 or other written instruments, specific performance connected 
 with sales of realty, wardship, and care of infants' estates. 
 
 Jurisdiction in matters of law arising in criminal trials is 
 to be exercised by the judges of the High Court of Justice or 
 five of them at least of whom one chief shall be part (§ 47). 
 
 C. C. R. (This tribunal is known as the Court for Crown Cases 
 
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THE JUDICATURE ACTS 181 
 
 Reserved (C. C. R.) and was originally constituted by 11 & 12 
 Vict. c. 78.) 
 
 The jurisdiction of a judge on Circuit who carries His TheJudge 
 Majesty's Commission is not limited by the terms of his <"iCircuit. 
 commission ; he is deemed to constitute a Court of the said 
 High Court of Justice (§ 29). 
 
 (Before the Act, it is said, a mandamus could issue to him 
 if he refused to perform an obligatory duty ^.) 
 
 The Act after directing that in certain specified cases, as Assimila- 
 for instance, of assignment of choses in action, equitable prj^^nies 
 waste, merger, and stipulations not of the essence of the 
 contract, the old rule of the common law was to be altered 
 for the rule of equity, lays down the general principle that 
 wherever there is any conflict or variance between the rules 
 of equity and those of the common law with reference to the 
 same matter, the rules of equity shall prevail. 
 
 The Act not only affected principle but practice. Remedies and prac- 
 once peculiar to some particular court can now be given in ^*'®' 
 any Division. Thus, that practice and procedure of which 
 the benefit could once only be got by the plaintiff bringing 
 a bill in chancery, is made available by interlocutory applica- 
 tions in all the Divisions of the High Court. The courts 
 of common law, for instance, could give no relief against 
 threatened injury. The courts of equity both could and 
 did. Now, all courts can issue Injunctions. So with the 
 remedy of Specific Performance. On the other hand till 
 Lord Cairns' Act the courts of chancery were unable to give 
 damages. 
 
 TiU Bentham's time the common law excluded principals 
 from giving evidence in a civil action. They were not made 
 competent witnesses till 1851 ^. Chancery was never fettered 
 in this way, and on the assumption that the parties to an 
 
 ^ Begina v. Harland, 8 A. & E. 826. M4 & 15 Vict. c. 99. 
 
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182 ENGLISH LEGAL INSTITUTIONS 
 
 action possibly knew as much about the matter as other 
 people, granted interrogatories and orders for production of 
 documents, interrogatories being written questions put by 
 plaintiiF to defendant, or vice versa, to be answered on oath. 
 
 It does not, however, seem that by this Act the High 
 Court can exercise powers not previously exercised by any 
 court ^. 
 
 Thus was brought about what has been called the ' fusion 
 of law and equity.' Some would say that 'supersession' 
 would be a more accurate description of the process. But 
 whatever the name, the development has progressed by stages 
 which are normal and perfectly familiar to every student 
 of Jurisprudence, viz. Law, Equity, and Legislation. 
 
 The Act By the amending Act of 1875 ^ it was provided that the 
 
 of 1875. Lord Chancellor was not to be deemed a permanent judge 
 The Court of the High Court, and that the Court of Appeal was to be 
 
 constituted of five ex officio members and not more than three 
 
 ordinary members (§§ 3, 4). 
 
 The Act By the Appellate Jurisdiction Act, 1876 ^ appeal lies to 
 TheHouse ^^^ House of Lords from the Court of Appeal in England, 
 of Lords, and from those Scotch and Irish courts from which an 
 
 appeal lay before the commencement of this Act by common 
 
 law or statute. 
 
 There must be present at such an appeal not fewer than 
 three of the following persons, designated as Lords of 
 Appeal : 
 
 (1) The Lord Chancellor of Great Britain. 
 
 (2) The Lords of Appeal in Ordinary. 
 
 (3) Such Peers of Parliament as are holding or have held 
 ' high judicial office ' as defined in the Act*. 
 
 ^ North London Railway Company v. G7-eat Northern Railway Company, 
 11 Q B. D. 30. » 38 & 39 Vict. c. 77. 
 
 ' 39 & 40 Vict. c. 69. * See p. 128. 
 
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THE JUDICATURE ACTS 183 
 
 Two such Lords of Appeal in Ordinary may be appointed 
 by His Majesty; to be eligible the person must have been 
 for two years holding a ' high judicial office ' or a practising 
 barrister for not less than fifteen years. Such a Lord of 
 Appeal is entitled to the style of Baron, and can sit and vote 
 during his hfe. 
 
 (This provision comes from the amending statute, 50 & 51 
 Vict. 0. 70.) 
 
 The Lords of Appeal, if Privy Councillors, are members 
 of the Judicial Committee of the Privy Council, and it is 
 their duty to sit and act as such, without prejudice however 
 to their duties in the House of Lords (§ 6). 
 
 The hearing and determination of appeals may be pro- 
 ceeded with during prorogation, and even during dissolution 
 if authorized by His Majesty by writing under the Sign 
 Manual. 
 
 Whereas under the powers conferred by 34 & 35 Vict. 
 c. 91 Her Majesty appointed four paid members of the 
 Judicial Committee of the Privy Council, it was now pro- 
 vided that when any two of these should die or resign Her 
 Majesty might appoint a third Lord of Appeal, and on the 
 other two dying or resigning, a fourth. 
 
 There are now four Lords of Appeal in Ordinary, the 
 above condition having been fulfilled. 
 
 His Majesty may appoint three additional ordinary judges 
 of the Court of Appeal (§ 15). 
 
 By the Stat. 44. & 45 Vict. c. 68 (1881), the Master of the The Act 
 Rolls (who since the time of Cardinal Wolsey had sat as ^j^^, 
 a judge of first instance) is to be a judge of appeal only, Master of 
 thus ceasing to be a judge of the High Court of Justice, and ^^^ tjjg 
 the ordinary judges are to be five in number (§ 3). Court of 
 
 (There was at the time a vacancy in the Court of Appeal 
 which was filled by the Master of the Rolls. The Court now 
 
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184 ENGLISH LEGAL INSTITUTIONS 
 
 consists of the Master of the Rolls and five Lord Justices, not 
 counting its ex officio members,) 
 
 By § 4 the President of the Probate Division and Ad- 
 miralty Division shall be an ex officio judge of the Court of 
 Appeal. 
 
 By § 15 the Lord Chief Justice must form part of the 
 Court for Crown Cases Reserved unless he or his medical 
 attendant certifies that he is prevented ' by iUness or other- 
 wise' from attending. 
 The Act By Stat. 54 & 55 Vict. c. 53 (1891), ex Lord Chancellors 
 Ex Lord ^^^ made ex officio judges of the Court of Appeal, but are not 
 
 Chancel- required to sit, unless with their consent at the request of the 
 lorSi 
 
 Lord Chancellor (§ 1). 
 
 By § 4 the High Court is a Prize Court within the meaning 
 of the Naval Prize Act, 1864 : subject to Rules of Court such 
 jurisdiction shall be assigned to the Probate, Divorce, and 
 Admiralty Division, and appeal lies to Her Majesty in 
 Council as under the Naval Prize Act. 
 
 Again after eight centuries we see the Curia Regis, but it 
 is the Court at Temple Bar, and not that at St. James'. 
 
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CHAPTER XIX 
 
 THE COURTS OF THE COUNTIES PALATINE 
 AND OF WALES 
 
 The counties palatine were Chester, Din-ham, and Lan- Grants of 
 caster. Whatever may be the precise date at which these ^oji^l^'^^ 
 counties became ' Palatine ^,' it seems likely that there was 
 in Saxon times a jurisdiction equivalent to that of the Pala- 
 tine earl, and originating in usm-pation and necessity. The 
 Central Government was too far away both before and after 
 the Conquest to control eifectually the administration of the 
 Marches, which were always turbulent and lawless districts. 
 
 The county palatine of Chester was granted by the Con- 
 queror to his nephew, Hugh Lupus, and afterwards became 
 one of the honours of the Prince of Wales. 
 
 The county palatine of Durham was granted to the Bishop 
 of Durham by the same king. 
 
 The county palatine of Lancaster was granted in 1376 by 
 Edward III to John of Gaunt, Duke of Lancaster, for his 
 life, the duke to hold as freely as the Earl of Chester. 
 
 All these three grants were of full iura regalia. 
 
 ' The power and authority of those that had counties pala- 
 tine was kinglike, for they might pardon treasons, murders, 
 felonies, and outlawries thereupon. They might also make 
 justices of eyre, justices of assize, of gaol delivery, and of 
 
 ' ' Palatine' probably means ' on tte Pale' or 'Border.' 
 
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186 ENGLISH LEGAL INSTITUTIONS 
 
 the peace. And all original and judicial writs, and all 
 manner of indictments of treason and felony and the process 
 thereupon, were made in the name of the person having such 
 counties palatine. And in every writ and indictment within 
 any county palatine, it was supposed to be contra pacem. of 
 him that had the county palatine ^ 
 
 Their By 6 & 7 Will. IV, c. 19 the palatine jurisdiction of the' 
 
 tion*^ Bishop of Durham was transferred to the crown. 
 
 the 
 
 Crown. ^^ 1461, the Duchy of Lancaster was permanently annexed 
 
 to the crown. 
 
 In 1535, 27 Hen. VIII, c. M provided that none but the 
 king should have power to make any justice of assize, of 
 the peace, or of gaol delivery, in any coxmty palatine or 
 other liberty, and that aU writs and indictments should be 
 in the king's name, and laid as against the king's peace. 
 
 The commissions, however, to the county of Lancaster 
 should be under the king's usual seal of Lancaster, in manner 
 and form as before (§ 5). 
 
 Thus the Durham and Lancashire Assizes and Quarter 
 Sessions were assimilated to those held elsewhere, except that 
 the Lancashire commissions were under a different seal. 
 
 Till 1830 Chester had a local chief justice and second 
 justice both appointed by the crown. These offices were 
 abolished ^ and it was provided that the Assizes should be 
 held in Chester and Wales as in other places, and that was 
 the position at the time of passing the Judicature Act of 
 1873 ^ which enacted that the counties palatine of Lancaster 
 and Durham shall respectively cease to be counties palatine 
 as regards the issue of commissions of assize or other like 
 commissions, but no further *. 
 
 ^ Coke, Imt, iv. 204. 
 
 ^ 11 Geo. IV and 1 Will. IV, c. 70. » 36 & 37 Vict. c. 66, § 99. 
 
 * The Court of the Chancery of Lancashire is still vi orous. 
 
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COURTS OF PALATINE AND WALES 187 
 
 Of the courts in Wales it is perhaps sufficient to give a The 
 
 brief account. Welsh 
 
 Courts. 
 
 When Robert Burnel drafted the great Statutum Walliae ^ 
 for Edward I, he produced a complete scheme showing the 
 divisions of the country, the courts and the officers, sheriffs, 
 and coroners, and the writs in actions. 
 
 Six counties, viz. Anglesea, Carnarvon, Merioneth, Flint, 
 Carmarthen, and Cardigan, were provided with a justice, 
 sheriffs, coroners, and courts on the English pattern. 
 
 The rest of Wales was divided into districts called ' Lord- 
 ships'" Marchers,' subject to the hereditary rule of Lords 
 Marchers who exercised despotic authority, and in which the 
 king's writ did not run. 
 
 In 1535 and 1543 two statutes ^ were passed by Henry VIII 
 abolishing the ' Lordships' Marchers,' and forming them into 
 new comities, and establishing Welsh courts and judges quite 
 separate from the English judicial system. 
 
 This arrangement lasted till 1830, when the statute ' was 
 passed (see above) abolishing the separate jurisdiction for the 
 county palatine of Chester, and the Principality of Wales. 
 
 One additional judge was added to each of the Superior 
 Courts of Westminster, and Wales was brought into the 
 judicial system of England. 
 
 1 12 Ed. I. 
 27 Hen. VIII, c. 26 and 34 & 35 Hen. VIII, c. 26. 
 11 Geo. IV and 1 WiU. IV, c. 70. 
 
 3 
 
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CHAPTER XX 
 
 THE CORONER 
 
 The Although the coroner can hardly be said nowadays to 
 
 office of occupy an important place in the administration of the 
 
 coroner. '■•^ ^ ^ . 
 
 criminal law, a duty for which a special training not avail- 
 able for a medical practitioner or a solicitor is required, and 
 although the verdict of a coroner's jury carries little weight, 
 for in that court the ordinary rules of legal evidence are not 
 rigidly observed, yet the office is one of great antiquity, and 
 at one time was a most important piece of the legal system. 
 It is too early yet to say with anything like certainty — if 
 indeed we shall ever know — what connexion, if any, the 
 coroner's inquest had with the petty jury in the Crown Court, 
 but some account can be given of this officer and his duties. 
 
 His Briefly his duties are now, as they have been since the time 
 
 duties. p£ Edward I, to inquire into cases of suspicious death ^ and 
 
 * This institution, which some affect to consider moribund, seems 
 on the contrary to exhibit both the fire of youth and the dignity 
 of old age ; see the South American mummy case (Aitken v. 
 London and North Western Railway, Times, Dec. 11, 1901). This 
 was an action against the railway company for damages for negligence 
 in the carriage of a Peruvian mummy, which was broken in transit 
 from South America to Belgium. In April, 1899, the package, sent 
 from Liverpool and addressed to ' Maison de Melle, Belgium,' had been 
 opened at Broad Street. An inquest was held — verdict, ' That the 
 woman was found dead at the railway goods-station on April 15, and 
 did die on some date unknown in some foreign country, probably 
 South America, from some cause unknown. No proofs of a violent 
 death are found. The body has been dried and buried in some foreign 
 
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THE CORONER 189 
 
 of treasure trove, and the inquisition of the coroner to-day is 
 as it always has been, a formal accusation of any person found 
 by it to have committed murder or manslaughter, or to have 
 found and concealed treasure, and a person may be tried on 
 such inquisition without further accusation. In practice, 
 however, cases of homicide are always investigated by a 
 magistrate who commits to the Assizes or the Central 
 Criminal Court, where the prisoner is indicted and tried, so 
 that the inquiry before the coroner is superfluous, frequently 
 embarrassing and occasionally mischievous. 
 
 It is not certain when coroners were first appointed. 
 Bishop Stubbs gave 1194 (5 Rich. I) as the date, the 
 twentieth article of the eyre of that year being the authority. 
 The learned editor of the Select Coroners' Rolls^ for the 
 Selden Society finds evidence that they existed before that date. 
 
 The coroner was, as his name indicates, a king's ofiicer ^, 
 he was elected in the County Court ^ at any rate after the 
 Stat, of West. I, and his name was submitted to the king. 
 His duty was to hold inquests as to the manner of death 
 of those supposed to have died by violence, accident, or in 
 prison, to apprehend the guilty and attach all who knew 
 an)rthing of the circumstances, or with whom the dead man 
 lived, and keep them till the itinerants came, to look after 
 deodands *, wreck, and treasure trove, to have them valued, 
 
 manner, probably sun-dried and cave-buried, and the jurors are satisfied 
 that this body does not show any recent crime in this country, and 
 that the deceased was unknown and about twenty-five years of age.' 
 
 ^ Introd. xv-xix to which I am largely indebted. 
 
 ' ' He hath principally to do with pleas of the crown — and in this 
 light the Lord Chief Justice of the King's Bench is the principal 
 coroner in the kingdom, and may (if he pleases) exercise the juris- 
 diction of a coroner in any part of the realm.' Bl., Oomm., i. 346. 
 
 ' There were usually four coroners in a county, but sometimes three 
 or even two. Some boroughs had their own by special grant. Bristol 
 for instance had four. 
 
 * The instinct which leads the golfer to break his club so that it 
 shall bring no more woes upon the human race, is inherited from his 
 ancestors, who if death was caused by animals or inanimate objects took 
 
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190 ENGLISH LEGAL INSTITUTIONS 
 
 and safely kept till the eyre came, to take ' appeals ' and to 
 hear criminal accusations which would presently be tried 
 before the eyre. He was bound to keep a roll or official 
 record of events since the last eyre, which he handed to the 
 justices, who were enabled thereby to check the present- 
 ments of the various juries and get a fairly correct view of 
 the local administration. He was the oculus of the king, 
 but he was also the representative of the people, owing his 
 position to their votes, and probably feeUng considerable 
 sympathy with them. 
 
 From the clause in Magna Charta ' nuUus vicecomes con- 
 stabularius vel coronatores . . . teneant placita coronae meae,' 
 it may be inferred that he was in the habit of trying crimi- 
 nal pleas, and after that date he passed judgement on felons 
 caught in the act. He frequently sat in the Cotmty Court 
 with the sheriflF, taking civil pleas, and in default of the 
 sheriff executed the royal writ. 
 
 He also linked the Royal and Manorial jurisdiction, for it 
 was his duty to be present in privileged baronial courts when 
 felonies were tried, and to watch in the interest of the king, 
 and he could enter ' liberties' when the sheriff was excluded. 
 
 vengeance on the offending object. The manslaying ox in Exodus xxi. 
 28 is to be stoned, the Athenians banished the axe (Aeschines, koto 
 KnjiTK^. 244, 245). In the second century after Christ Pausanias notes 
 that they still sat in judgement on inanimate things in the Prytaneum 
 (i. 28 (ii) ). Mr. Tylor tells us that ' if a tiger killed a Kuki (Southern 
 Asia) his family were in disgrace till they had retaliated by killing and 
 eating the tiger or another ; but further, if a man was killed by a fall 
 from a tree, his relatives would take their vengeance by cutting the 
 tree down and scattering it in chips.' 
 
 ' Thus too by an ancient law,' says Blackstone, ' a well in which a 
 person was drowned was ordered to be filled up under the inspection of 
 the coroner' (Fleta, 1. 1, c. 26, § 10). 
 
 The same underlying feeling explains the nooeae datio of the Roman 
 Law. The thing is guilty : it, and not its ovraer, is to be punished. 
 It is to be handed over to the relatives of the dead man to do what 
 they please to it. 
 
 So in our law in death by misadventure, the thing causing the death 
 
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THE CORONER 191 
 
 If a thief was caught red-handed on the land of a lord who 
 had infangthef, the capital sentence could only be inflicted 
 when the coroner was present. 
 
 In 1276 the so-called Statute de Officio Coronatoris ^ 
 gives the coroner's duties, but a comparison with Bracton 
 De Corona ^ suggests that the statute was merely declaratory 
 of the existing practice. 
 
 The coroner was not paid though he got certain exemp- 
 tions, and the office was not sought after. 
 
 Subsequent statutes ^ have not affected his duties except in 
 such details as summoning jurors and "witnesses, but have pro- 
 vided him with a salary and he is now appointed by the County 
 Council under the provisions of the Local Government Act *. 
 
 was forfeitedj according to the laws of Ine and Alfredj to the kindred, 
 but later in Bracton's time to God pro rege. In the thirteenth century 
 the thing- was taken by the sheriff or coroner or other officer and sold, 
 and at the next eyre an order was made for him to account for its 
 value. The justices could direct for what specific purposes the money 
 should be applied, charitable or public, pro deo. Thus, when in 1221 
 some persons fell out of a boat on the Severn and were drowned, the 
 record says, ' value of boat eighteen pence, dentur deo ad pontem,' 
 i. e. to build a bridge {Select Pleas of County of Gloucester, 55). The 
 Church seems to have seen an opportunity of making a claim on the 
 ground that as the person died unconfessed in actual sin, the thing 
 should be devoted to buying masses for his soul, in the same way as 
 the apparel of a stranger found dead was applied to that purpose. 
 
 Blackstone speaks of the deodand as forfeited to the king to be 
 applied to pious uses and distributed in alms by his high almoner 
 {Inst.,\. 300). 'It matters not,' he says, 'whether the owner were 
 concerned in his killing or not, for if a man kills another with any 
 sword, the sword is forfeited as an accursed thing. And therefore in 
 all indictments for homicide, the instrument of death and the value 
 are presented and found by the grand jury (as that the stroke was 
 given by a certain penknife value sixpence) that the king or his grantee 
 may claim the deodand' (Inst., i. 301). 
 
 The accursed thing was known as the 'bane.' Deodands were 
 abolished in 1846 (9 & 10 Vict. c. 62). 
 
 1 4 Ed. I, St. 2. 2 Lib. 3, c. 6. 
 
 3 3 Hen. VII, c. 2 ; 25 Geo. II, c. 29 ; 23 & 24 Vict. c. 116. 
 
 ♦ 51 Vict. c. 41. 
 
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nersjury. 
 
 192 ENGLISH LEGAL INSTITUTIONS 
 
 The Coroner's Inquest. 
 The coro- The composition of the coroner's jury or inquest varied. 
 As a rule it was made up in whole or part of representatives 
 of the fom- neighbouring townships (yillatae) including that 
 in which the dead body was found. 
 
 The most common constitution was twelve men, repre- 
 senting, it is suggested, the hundred, and the reeve and four 
 men from each township, making thirty-two in all. There 
 was no invariable method in which the verdicts were given. 
 They might be given separately, one by the townships, one by 
 the himdred, or each township might give its verdict apart 
 from the others ; sometimes the inquest was per duodecim 
 iuratores, the duodecim coming from the townships. 
 
 Was it This much is not doubted, but if we go a little farther we 
 
 the petty ^ii^ ourselves in the region of conjecture. We are aware that 
 
 J'^T ■ it was the duty of the four townships to present felonies in 
 
 the hundred or County Courts, and also that when the judges 
 
 came round, twelve iuratores of the hundred had to present 
 
 persons accused of crime. 
 
 When the ordeal was in vogue, the procedure was simple, 
 but when the Lateran Council condemned the ordeal, what 
 exactly was the system that took its place .'' There is a jury 
 of twelve men who are required praecise dicere 'guilty' or 
 ' not guilty.' If they say ' guilty,' the representatives of the 
 four townships are sworn, and if they agree, sentence is 
 pronounced. 
 
 At the present day we are familiar with presentation by 
 a grand jury which is similar to the presenting jury of the 
 thirteenth century, and with the petty jury which tries the 
 case and says ' guilty ' or ' not guilty.' But what we do not 
 know is who were the mediaeval representatives of our petty 
 jury. Were they the second jury of twelve, or were they the 
 representatives of the four townships, or were they neither .'' 
 
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THE CORONER 193 
 
 One or two points may be borne in mind. Juries were 
 expected to give their verdict from their own knowledge, the 
 word ' knowledge' being used in a wide sense ; the four town- 
 ships came sometimes to present with the hundred, seemingly 
 when the hundred jury was in doubt ; the four townships had 
 already investigated the affair with the coroner, and at some 
 inquests had heard ' evidence' not of jurymen ^, so that they 
 would be in fiill possession of the circumstances. 
 
 The question will be approached in treating of the 
 Criminal Jiu-y; in the present state of our knowledge it 
 must suffice to say that the great authority of the learned 
 editor of the Select Coroners' RoTls favours the paternity of 
 the four townships, while Professor MaitlancJ, who once 
 inclined to that view, apparently on further examination 
 thinks the evidence not yet sufficient. 
 
 ' Sekct Cor. Bolls, p. 62. 
 
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CHAPTER XXI 
 
 THE JUSTICES OF THE PEACE 
 
 The Peace 
 and its 
 ' conser- 
 vators.' 
 
 Statutory disorder, 
 regula- 
 tion. 
 
 The 'peace' was practically the criminal law, and to 
 maintain it was one of the prerogatives of the crown. There 
 was a variety of persons who were charged with the duty; 
 great officers of the crown, such as the judges of the King's 
 Bench, were ex officio guardians or 'conservators' of the 
 peace, some were so by tenure or prescription, some were 
 elected in the county courts, as coroners, some carried extra- 
 ordinary commissions from the king ^. 
 
 The reign of Edward III was heralded by bloodshed, and 
 the king being a minor, special measures were taken against 
 The Statute 1 Ed. Ill, st. 2, c. 16, provided that 
 in every county good men and lawful should be ' assigned to 
 keep the peeice ' with, however, very limited authority. 
 
 Three years later they were given the power of receiving 
 indictments, and of keeping the persons indicted in custody 
 till the judges of gaol delivery came round ^. 
 
 By 18 Ed. Ill, st. 2, c. 2 Judicial powers were conferred 
 on them, viz. to hear and determine felonies and trespasses 
 against the peace with others wise and learned in the law, 
 and to inflict punishments reasonably. 
 
 ' The office may possibly have germinated from the frank-pledge 
 system, cf. the Dooms of Canute, c. 21 ; Stubbs, Sel. Ch., p. 74; the 
 Assize of Clarendon, §§ 1, 8 ; ibid., 143; and the Edictum Begium, 
 A. D. 1195 ; ibid., 264. M Ed. Ill, c. 2. 
 
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THE JUSTICES OF THE PEACE 195 
 
 By 34 Ed, III, c. 1 separate commissions were provided 
 for each county. The qualifications requisite and the extent 
 of the diities are set forth, and authority given to hear and 
 determine, at the king's suit, felonies and trespasses done in 
 the same county, and to take sureties for good behaviour. 
 
 In 1388 the number of justices in each commission was TheC 
 fixed at six, not counting the judges of assize, and they were Sessio 
 directed to hold their sessions four times a year. 
 
 Some later statutes were passed in the next reigns under 
 which the restriction on the numbers was removed, and by 
 which the dates of the sessions were fixed, but the court 
 formed in 1388 is substantially the Court of Quarter Sessions 
 of to-day. Its times of meeting are now regulated by 
 11 Geo. IV, 1 Will. IV, c. 70. 
 
 The activity of the justices seems not to have been all that 
 was desired, for the Statute 4 Hen. VII, c. 13 recites that the 
 justices of the peace have been negligent and misdemeaning, 
 and directs that complaints must be made to the king or his 
 chancellor, which probably means 'making a Star Chamber 
 matter of it.' In Henry IVs reign they were directed by 
 statute to put down riots, with the sheriff and his 'posse,' 
 and were told that they could only imprison people in the 
 common gaol, which looks as though they had been using 
 their own castles for the purpose. 
 
 The jurisdiction of Quarter Sessions rested tiU 1842 on Itsju 
 these statutes and on the commission issued thereunder, which 
 was ' settled ' in 1590 and has been in use ever since, which 
 embraced all crimes except treason, subject only to this, that 
 in cases of difficulty a judge of one of the benches or of 
 assize ought to be present. This jiudsdiction was exercised 
 and sentences of death were pronounced and executed accord- 
 ingly. But in practice these powers were gradually dropped, 
 and the hmits of jiurisdiction are now settled by 5 & 6 Vict. 
 c. 38, which removes the cognizance of treason, murder, 
 
 o2 
 
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196 ENGLISH LEGAL INSTITUTIONS 
 
 capital felony, felony punishable on first conviction with 
 penal servitude for life, and some other specified offences. By 
 59 & 60 Vict. c. 57, Quarter Sessions were empowered to try 
 cases of burglary. 
 
 and pro- The procedure at Quarter Sessions is as at Assizes, by 
 
 ce uie. presentment by a grand jury and trial by a petty jury. The 
 
 Quarter Sessions also hear appeals by way of rehearing from 
 
 convictions at petty sessions, and also appeals in Licensing, 
 
 Rating, and Poor Law matters. 
 
 Borough Of the Borough Courts of Quarter Sessions it must suffice 
 Sessions, to say that from very early times charters of incorporation 
 have been granted to towns, containing grants of courts 
 of varying importance. In such cases the corporation was 
 The generally authorized to appoint a judge of their own, usually 
 
 a Recorder, with criminal and sometimes civil jurisdiction. 
 In 1834 these charters and jurisdiction were investigated by 
 a Commission, following on the report of which the Municipal 
 Corporations Act, 5 & 6 Will. IV, c. 76, was passed, em- 
 powering the crown to grant a separate Court of Quarter 
 Sessions to any borough scheduled in the Act, that presents 
 a petition stating the salary that it is proposed to pay the 
 Recorder, and the right to appoint the Recorder is transferred 
 to the crown. The Recorder is to hold his court four times 
 a year or oftener, and he is the sole judge of the coiurt. 
 
 In matters of crime the procedure and jurisdiction of such 
 a court is identical with that of the County Quarter Sessions. 
 
 The law on the subject was consolidated by the Municipal 
 Corporations Act, 1882 (45 & 46 Vict. c. 50). 
 
 Courts of Summary Jurisdiction. 
 
 Summary Statutes at various times gave power to one or two justices 
 ticm^ "^' sitting together, to inflict summarily small penalties on un- 
 important offences^ such as trifling nuisances or misconduct. 
 
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THE JUSTICES OF THE PEACE 197 
 
 such as profane cursing or swearing^, 'Summary jurisdic- 
 tion' imports trial without either grand or petty jury. 
 
 By 11 Hen. VII, c. 3, justices of assize and justices of the 
 peace may upon information hear and determine, without a 
 jury, all olTences, except treason, murder, or felony, committed 
 against any statute not repealed. 
 
 This Act was repealed in the next reign,, but was the 
 beginning of summary jurisdiction in its more extended 
 sense. 
 
 The procedure to be used was left very vague, and was at 
 last regulated by 11 & 12 Vict. c. 43. 
 
 Under several statutes passed in 1828, 1847, 1849, 1855, Petty 
 1861, 1871, and 1879, provision was made for dividing ^«^»i°"«- 
 counties into petty sessional divisions, and the offences triable 
 thereat and the penalties which may be inflicted were therein 
 declared. 
 
 It is enough to say that, except where by statute one 
 justice sitting alone may act, two justices sitting together 
 have a petty criminal jurisdiction over what may be called 
 police offences and minor breaches of the peace, with a 
 power of inflicting terms of imprisonment not exceeding six 
 months. Where, however, the offence, other than assault, is 
 punishable with more than three months' imprisonment, the 
 accused has the option of being tried at the Quarter Sessions 
 or Assizes before a jury. ^ 
 
 The justices of the peace are appointed by the crown 
 acting through the Lord Chancellor, who takes the recom- 
 mendation of the Lord Lieutenant in the case of the county 
 bench. 
 
 Stipendiary magistrates exist in the metropolis, and other The sti- 
 pendiary. 
 
 ' 19 Geo. II, c. 21. 
 
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198 ENGLISH LEGAL INSTITUTIONS 
 
 towns in virtue of various statutes. They are appointed by 
 the crown on the advice of the Home Secretary, and when 
 acting judicially have all the powers of two justices of the 
 peace sitting together. Like the justices of the peace they 
 hold office 'durante bene placito.' 
 
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CHAPTER XXII 
 
 CRIMINAL TRIALS AND THE CRIMINAL JURY 
 
 Since the Norman Conquest there have been three modes Criminal 
 of trial in criminal cases — by ordeal, battle, and jury : and ^^^ ^' 
 three modes of accusation — appeal, or accusation by a private 
 person, indictment, or accusation by a grand jury, or an 
 information either by the Attorney-Genertil or the Master 
 of the Crown Office^. We do not count compurgation as 
 one, for this in criminal cases did not long survive the 
 Norman Conquest, though in civil actions, as Wager of Law ^, 
 it maintained a shadowy existence till 1834, when its appear- 
 ance in King v. Williams, 2 B. & C. 538 having informed the 
 legislature of its existence insured its abolition by 3 & 4 
 Win. IV, c. 42. 
 
 ^ A criminal information may be preferred only for misdemeanours, 
 and only by the Attorney-General, the Solicitor-General, or the master 
 ■of the Crown Office ' on the order of the Queen's Bench Division made 
 on motion heard in open Court ' (cf. 4 WiU. & Mary, c. 18). This 
 was passed because the Master used to lend his name to any one who 
 wished it, and thus private persons could frivolously bring a malicious 
 prosecution against a defendant without the intervention of a Grand 
 Jury. 
 
 The law officers, there is reason to suppose (E. v. Berchet and others, 
 1 Show. 106-21, 1689), exercised this right from temp. Edward I to the 
 Revolution in the King's Bench without indictment by Grand Jury, 
 and the procedure was ordinary before the Council and Star Chamber, 
 and is recognized and regulated by several Acts of Parliament. 
 
 ' So called from the preliminary stage of giving pledges to per- 
 form it. 
 
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200 ENGLISH LEGAL INSTITUTIONS 
 
 Appeal (1) Appeals. The history of appeals and battle goes 
 
 together, for battle was properly an incident of an appeal, 
 although it found its way into the civil courts eventually. 
 Appeals were deemed a most important part of the criminal 
 law, as might be expected, at a time when neither justice nor 
 police was well organized and the principal weapon available 
 for the administration of criminal justice was private revenge. 
 
 Trial by combat or Wager of Battle was a form of legal 
 procedure familiar to the Normans, though there is no trace 
 of it in Anglo-Saxon history. Ordeal was, on the other 
 hand, well known here. Combat may be said to be a bila- 
 teral kind of ordeal: both were appeals to the judgement 
 of God. To suit the habits of his Norman and Saxon sub- 
 jects the Conqueror ordained that if a Frenchman appealed 
 an Englishman of theft, murder, homicide, or rapine, the 
 Englishman could defend himself either by ordeal or duel, 
 and if he were infirm, by a champion. If the Englishman 
 appealed a Frenchman and declined proof by ordeal or 
 battle, the Frenchman nevertheless had to purge himself by 
 the unbroken oath of compm-gators ^. In cases where there 
 could be no battle, and no witnesses could be found, or the 
 man was of notoriously bad chareicter, he went to the ordeal. 
 
 The proper method of suing an appeal of felony was for 
 the complainant to promptly raise the hue, go with it to the 
 nearest vills, and there declare the crime, then go to the 
 king's Serjeants, then to the coroners, and then to the next 
 county court. 
 
 At this county court, before the sheriff and coroners, 
 the appellor made a formal and detailed statement, in order 
 that the appellee might know what he had to answer. If 
 the appellee did not appear he was called or 'exacted' 
 at the next four consecutive county courts. If the appellee 
 did not then appear, judgement of outlawry was given. If 
 
 1 StubbSj Sel. Ch.,^.M. 
 
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CRIMINAL TRIALS AND CRIMINAL JURY 201 
 
 the appellee appeared, the appeal was removed by writ into 
 the king's court ^ where the appellee raised any plea or ex- 
 ception he thought fit. If he did not plead, or pleaded 
 inadequately, battle was directed between the parties, but 
 the judges were to inquire, and not allow battle if the cir- 
 cumstances were such that there were 'presumptiones quae 
 probationem non admittunt in contrarium,' as for instance, if 
 an appellee was caught standing over the dead man with 
 a bloody knife, or taken with the 'mainour.' This is an 
 application of the general rule of orn: early law, that if 
 a culprit is taken red-handed, no accuser is wanted, and no 
 defence allowed; he is convicted. Nor was battle allowed 
 if the appellant was maimed, over sixty years of age, or an 
 infant. In most cases after the disappearance of 'ordeal' 
 appellees had the option of defending themselves per corpus 
 or per patriam, but not always. In secret crime, such as 
 poisoning, he must defend himself ^er corpus, for, as Bracton 
 says, the patria could know nothing of a concealed fact like 
 this. If the appellee was defeated before the stars appeared 
 he was hanged : if not, or if he won, he was acquitted from 
 the appeal, but as the appeal raised a presumption of guilt, 
 he was tried by the country as if he had been indicted. 
 
 The only appeals which had any definite history were those in 
 of murder. This seems to have been the usual way of prose- 
 cuting murder to the end of the fifteenth century. Indeed, 
 in 1482 (22 Ed. IV), it was determined that a homicide 
 should not be arraigned at the king's suit within the year, 
 in order to save the suit of the party, because by the 
 Statute of Gloucester (6 Ed. I, c. 9), an appellor was re- 
 stricted to a year and a day within which to bring his appeal. 
 This was so mischievous, that four years later (1486) we find 
 a clause in the statute known as the Star Chamber Act, 
 3 Hen. VII, c. 1, which recites that ' the party is oftentimes 
 slow and also agreed with, and by the end of the year all is 
 1 Sel. Cor. Bolls (Seld. Soc), 66. 
 
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202 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Accusa- 
 tion ' per 
 famam.' 
 
 Present- 
 ment. 
 
 Compur- 
 gation. 
 
 Ordeal. 
 
 Public 
 fame. 
 
 forgotten, which is another occasion of murder. And also 
 he that will sue any appeal shall sue in proper person, which 
 suit is long and costly that it maketh the party appellant 
 weary to sue.' Indictments for murder accordingly are to 
 be tried at once, and an acquittal on an indictment is to be 
 no bar to an appeal. Thus, an indictment was usually tried 
 first, and was practically conclusive, unless the prisoner was 
 acquitted under circumstances which greatly dissatisfied the 
 relatives of the dead man. In 1819 appeals were finally 
 abolished by the Statute 59 Geo. Ill, c. 46, following on the 
 appeal in Ashford v. Thornton ^. 
 
 (2) Accusation hy public report — ordeal — trial hyjury. In 
 the Laws of Ethelred ^, which in this connexion refer to the 
 northern parts of the realm, it is provided that in every 
 wapentake the twelve superior Thanes or freeholders, who 
 were at the gemot, shall go out with the reeve and swear on 
 the relic that they will accuse no innocent man nor conceal 
 any guilty one. The form survives to the present day in 
 the oath of the grand jury. If the man was taken in the 
 act the thing was clear and he got no trial ; if not, he was 
 required to clear himself by oath, if he was oath-worthy. 
 To find out whether he was credible or oath-worthy he had 
 to bring up people who would support him — ' compurgators,' 
 — other freeholders, frequently eleven, who swore that they 
 believed him. 
 
 Ordeal was apparently employed when the man was not 
 credible, or there was want of satisfactory evidence. It was 
 not unknown in the highest court to try and convict upon 
 public fame alone. Thus the judgement on the Mortimers 
 was on common fame recorded by the king : ' les quieux tresons 
 felonies roberies homicides arsouns mavesties et chevauchees 
 as baneres desplies sount notories et conuz el roialme et nostre 
 Seignour le Roy ceo record sur vous.' 
 
 I 1 B. & Aid. 405. ^ StubbSj Sel. Ch., p. 72. 
 
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CRIMINAL TRIALS AND CRIMINAL JURY 203 
 
 In 1176 the Assize of Northampton appeared. It was 
 a recension of the Assize of Clarendon (1166) with some 
 additions and alterations, making it more rigorous. The 
 provision that we are at present concerned with was this : 
 that 'if any one were accused before the justices of our lord 
 the king of minder, theft, or robbery, or harbouring men 
 who do such things, or forgery, or arson, by the oath of 
 twelve knights in the hundred, or if no knights, twelve lawful 
 men and four men from each township in the hundred, let 
 him go to the ordeal of water and if he fails let him lose 
 a foot and the right hand, and exile himself within forty days. 
 If acquitted by ordeal let him find pledges and remain unless 
 the accusation be of miu-der or base felony, when he must 
 abjure the kingdom in forty days ^.' 
 
 An accusation therefore of murder or base felony was 
 equivalent to banishment at the least. 
 
 As an instance of accusation by common fame we can 
 refer to the Roll of the Iter of Wiltshire, 10 R. 1 :— ' The 
 jm-ors say that Radulphus Parmentarius was found dead 
 with his neck broken, and they suspect one Cristiana, who 
 was formerly the wife of Emaldus de Knabbewell, of his 
 death, because Radulphus sued Cristiana in the ecclesiastical 
 court for breach of a promise of marriage she had made to 
 him, and after the death of her husband Emaldus, Reginald 
 a clerk frequented her and took her away from Radulphus, 
 and Reginald and Cristiana hated Radulphus for suing her, 
 and on account of that hatred the jurors suspect her and the 
 clerk of his death. And the country says it suspects her. 
 
 ^ Stubbs, Sel. Ch., p. 151. This 'implied prohibition' practically 
 abolished compurgation in the king's courts in the graver criminal 
 cases, though it lingered on in the local and ecclesiastical courts. The 
 method was much valued in pleas of 'the crown, as it was considered 
 more favourable to the prisoner than a jury, and was jealously pre- 
 served in London (see the Royal Charters of Hen. I, II, III, John, 
 Ric. I, II, and Ed. I, II, III). 
 
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204 
 
 ENGLISH LEGAL INSTITUTIONS 
 
 Disap- 
 pearance 
 of ordeal. 
 
 Difficulty 
 about a 
 substi- 
 tute. 
 
 Therefore it is considered that the clerk and Cristiana appear 
 on Friday, and that Cristiana purge herself by fire.' 
 
 But ordeal had not long to live. Rufus had commented 
 on it very unfavourably as a method of discovering truth, 
 when fifty men accused of killing the king's deer emerged 
 triumphantly from the ordeal. The king said that in future 
 he himself and not God would try these cases ■'. 
 
 The Lateran Council in 1216 condemned the ordeal, and 
 prohibited the clergy from assisting at it. In our country 
 this direction met with immediate obedience ^. By letters 
 patent, issued January 26, 1219, an Order in Council was 
 sent after the judges who had already started on their eyres, 
 telling them that the Roman Church had prohibited judge- 
 ment by fire and water, and directing them generally that in 
 the circumstances, if grave crimes were brought before them, 
 the prisoners must be kept in strict custody ' ita quod non 
 incurrant periculum vitae et membrorum.' This last pro- 
 vision disappears in the Statute 3 Ed. I, c. 12, which directs 
 prison ' forte et dure ' ; if there were crimes of a middle char- 
 acter, where ordeal would have been employed, the accused 
 are to abjiure the realm, and in trifling offences they must 
 give pledges to keep the peace, but the judges are to use 
 a large discretion. 
 
 But nothing is said in the Order about putting the accused 
 persons on their trial. The truth was that a very great 
 diificulty had now been raised. Trial by ordeal and com- 
 
 ' The king ' stomachatus ' said ' Quid est hoc .'' Deus est iustus 
 iudex .'' Pereat qui deinceps hoc crediderit. Quare per hoc et hoc meo 
 iudicio amodo respondebitur non;Deij quod pro voto cuiusque hinc inde 
 plicatur ' (Eadmer, Hist. , 102). 
 
 ^ In 1679 the Jesuit Gavan startled the Court by asking to be tried 
 by ordeal. To which the L. C. J. humanely replied, ' You are very 
 fanciful, Mr. Gavan ; you believe that your cunning in asking such 
 a thing will take much with the auditory : but this is only an artiiicial 
 varnish : our eyes and understandings are left us, though you do not 
 leave their understandings to your proselytes' (7 St. Tr., 383). 
 
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CRIMINAL TRIALS AND CRIMINAL JURY 205 
 
 purgation had gone, but the accusation by a grand jury 
 remained, and there was no method left of ascertaining the 
 truth of the accusation. Battle was a method of proof only 
 allowed in the case of appeals. The king at whose suit the 
 criminal was prosecuted could not bring an appeal, for he 
 did not see or hear the crime \ and he could not fight. 
 The only way was trial by the country, just as in an appeal 
 by a woman or a maimed man, for the^e were not expected 
 to fight. 
 
 But what was to be done if the prisoner declined to put Trial 
 himself upon his country ? It seems that for some reason or ^^^ ^"'*' 
 other it was considered an impropriety to direct an inquest 
 without first having got his consent. It may be that it was 
 considered that mere human testimony was not enough when 
 a man was being tried for his life. Indeed in the leges Henrici 
 it is said that ' no one is to be convicted of capital crime by 
 testimony' ; apparently the judgement of God ought in such 
 a grave matter to be invoked. Yet an inquest was not ob- 
 scurely indicated. In criminal as in civil cases ' exceptiones ' 
 were tried by inquisition either by consent or by purchase 
 from the king, the most important being the 'exceptio de 
 odio et atia' which alleged malice in the accuser, and in- 
 ferentiaUy the innocence of the prisoner. Such an ' exceptio ' 
 was frequently decisive ^- Sir F. Palgrave gives instances of 
 persons accused by presentment, even before the ordeal went 
 out of use, buying from the king the benefit of going before 
 an inquest of legaks mUites, to have it pronounced 'utrum 
 culpabilis sit inde necne.' And in the petty Assizes the 
 inquest was compulsory. 
 
 Still what was to be done .'' It is evident that the judges 
 hesitated, but at Warwick in 1221, Martin PateshuU, finding 
 two prisoners who refiised to put themselves on their country, 
 
 ^ ' Cadit appellum ubi appellans non loquitur de visu et audito,' 
 Bract, ii. 434. 
 
 " Such an inquisition was given gratis. Mag. Ch. c. 36. 
 
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206 ENGLISH LEGAL INSTITUTIONS 
 
 as the phrase went, chose twenty-four knights, who endorsed 
 the accusation of the twelve men of the hundred, and on that 
 hanged them both ^. 
 
 Consent The usual method, however, was to try to compel the man 
 
 pelled. to consent to an inquest. He was placed in rigorous confine- 
 ment, put in irons, and fed on alternate days on bad bread 
 and stagnant water till he either pleaded or died. In the 
 case of Hugo, when he refuses to plead, the judge says that 
 he had much better do so. ' Scilicet uno die manducabitis 
 et alio die bibetis : et die quo bibitis non manducabitis et 
 e contra: et manducabitis de pane ordeaceo et non salo 
 et aqua ^.'' 
 
 The peine But this developed into the extraordinary procedure known 
 dure. ^® t^^ peine forte et dure, which was that he was to be 
 
 stretched on his back naked, and to have iron laid upon him, 
 as much as he could bear and more ; indeed, as late as 1726, 
 one Bumwater, who was accused at Kingston Assizes of 
 murder, refused to plead, and was pressed for an hour and 
 three quarters with nearly four hundredweight of iron, after 
 which he pleaded not guilty, and was then tried, convicted, 
 and hanged. 
 
 In 1658 Major Strangeways was pressed to death in ten 
 minutes, under a wooden frame, with weights on it placed 
 anglewise over his chest; several persons standing on the 
 frame to hasten his death. A milder form of persuasion, by 
 tying the thumbs with whipcord, was practised in 17S4i at 
 the Old Bailey 3. 
 
 ' Sel. Pleas of the Crown (Seld. Soc), 99-101. See also (ib. 127) 
 the case, in 1220, of the man who put himself on the counties of Essex 
 or Norfolk or Southampton or all of them, as to his good character, 
 and then on the county of Surrey or upon all the men in England that 
 knew him. Then came twenty-four knights of Surrey at the king's 
 command. And he put himself on them, and was hanged. 
 
 2 Y. B., 30 & 31 Ed. I (Rolls Series), 529. 
 
 ^ Steph., E. O. L., 300. 
 
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CRIMINAL TRIALS AND CRIMINAL JURY 207 
 
 The practice was not formally abolished till 1772, by 
 12 Geo. Ill, c. 20, when standing mute was made equivalent 
 to a conviction. By 7 & 8 Geo. IV, c. 28 it was directed 
 that a plea of not guilty should be entered in such a case. 
 
 The object of refusing to plead in a felony was that, as 
 there was no conviction, there was no forfeiture, and the 
 property of the accused person was thus saved. But if the 
 man did put himself upon his country, how was he tried ? 
 We know from Bracton something of what took place when 
 the itinerants came round. They came, read their commis- 
 sion, talked about their useful errand, withdrew, and called 
 to them four or six busones comitatus, told them their duties, 
 swore them to obey, went back to court, summoned the 
 bailiffs of the hundreds, swore them to choose four knights 
 for each hundred, who came and swore to elect twelve other 
 knights, or liberos et legates homines. These twelve were Thepre- 
 scheduled, and, when produced, were sworn. The capitula jyry. 
 were read to them, and they had to bring their answers on 
 a certain day, and to say amongst other things against whom 
 there was a common fame. 
 
 It was not necessary for the presenting jury to believe in 
 the report which they made, and it is fairly certain that they 
 would omit nothing that they could remember, for the judges 
 in eyre had other sources of information, and notably had 
 before them the sheriiTs and coroner's rolls, which told them 
 a good deal that had gone on in the county since the eyre 
 last came, and omissions on the part of the presenting jury 
 were visited with amercements. HA. is presented by the 
 jury as malecreditus, i.e. as a 'suspect,' the judges question 
 the jury about the grounds of the report, whereupon, says 
 Bracton, some one will perhaps say, or the greater part 
 may say, that their presentment was learned from one of 
 themselves, and this is investigated. The report may at 
 last be traced ' ad aliquam vilem et abiectam personam,' one to 
 
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208 ENGLISH LEGAL INSTITUTIONS 
 
 whom credit is not to be given. If the matter is proceeded 
 with, the person who is presented is asked how he will 
 clear himself, and we will assume that he puts himself on his 
 country. 
 The jury Though what happens now is disputed (for it appears that 
 ance. ' ^^^ ^i^^ taken by Mr. Justice Stephen, in his History of 
 the Criminal Law'^, does not commend itself to Professor 
 Maitland^), it seems likely that the presenting hundred 
 jvirors are again asked a question. They have been already 
 sworn, and they are now asked to say 'guilty' or 'not 
 guilty,' which is a different question to the question they 
 answered before. If they say 'not guilty,' the man is ac- 
 quitted ; if they say ' guilty,' the four nearest townships are 
 summoned and asked the same question. Sometimes the 
 jury of another hundred is sworn, and asked if they support 
 the verdict of the presenting jury. If they all agree, sen- 
 tence is passed upon the accused; but the practice must 
 have been unsettled, for we find in the pleas of the county 
 of Gloucester^ that Marinus of Winchcombe, who was ac- 
 cused of homicide, gave two marks for having an inquisition 
 whether he was guilty or not, and it is said that the jurors 
 of Winchcombe, of Kiftesgate, and of Gretestan, 'dicunt 
 praecise quod non est culpabilis et ideo quietus.' One pre- 
 sumes that he was presented by a Winchcombe jury, and, if 
 that is so, it is clear that the body which presents and the 
 body which^raeme dicit 'guilty' or 'not guilty' is not identical ; 
 but it was the early practice to have some of the indictors 
 on the trial jury, otherwise 'it was not well for the 
 king*.' Still a feeling was growing up that none of those 
 who presented an accused person should be on the inquest 
 which tries him, and this was embodied in a statute of 1352 ^. 
 
 ' Viz. that there were two juries, i. 258. 
 
 ^ Pleas of the Orotimfor the County of Gloucester, xliii. 
 
 5 Ibid., 13. " Y. B., 14 & 15 Ed. Ill, 261. 
 
 s 25 Ed. Ill, St. 5, c. 3. 
 
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CRIMINAL TRIALS AND CRIMINAL JURY 209 
 
 In Britton, which is a recension of Bracton (1291-2), the 
 functions of the presenting jury are stated to be as above, 
 but the trial comes before other jurors who are directed as 
 to the points which they are to decide. If they cannot 
 agree, they are to be separated and examined as to why 
 they cannot agree, and if the greater part of them know 
 the truth, and the other part do not, judgement shall be 
 according to the opinion of the greater part. And if they 
 declare upon their oaths that they know nothing of the fact, 
 ' let those be called which do know it ; and if he who put 
 himself on the first inquest will not put himself on a new 
 jury, let him be remanded back to penance, tiU he consents 
 thereto ^.' 
 
 It will be noticed that though we have got as far as a jury Functions 
 to present, which corresponds to the Grand Jury of to-day, i^^^_ 
 and another to try, both juries give their verdict from their 
 own knowledge of the facts. And 'knowledge' included 
 information which they gathered by informal investigation, 
 so much so that according to Britton tjie jurors may be 
 strictly examined by the justices as to 'how they are in- 
 formed of the truth of their verdict,' when it may be dis- 
 covered to be mere tavern gossip or worse. 
 
 We know that the trial or petty jury has now a different 
 character, for it gives its verdict according to the evidence 
 and not from its own knowledge. In the book which 
 Fortescue wrote between 1460 and 1470, De laudibus legirni 
 Angliae, there occur expressions of an ambiguous nature 
 which leave it in doubt how far the change has progressed, 
 as that ' the law of England never decides a cause only by 
 witnesses when it can be decided by a jury of twelve men ^.' 
 
 It is to be observed, however, that witnesses are not 
 unknown at a much earlier period than this. Thus, in the 
 
 ' Brittouj 31, 32. ' c. xxxii. 
 
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210 ENGLISH LEGAL INSTITUTIONS 
 
 case of William, the son of Matilda^, who was tried for 
 murder, many bystanders testify that they saw him do the 
 deed, and took him with the weapon in his hand, the four 
 townships also agree, and twelve juratores say that he is 
 guilty. There is nothing anomalous in this, for the jury were 
 at liberty to make what inquiries they chose. 
 
 Again, as early as Bracton ^, the accused could challenge 
 jurors on the ground of enmity or corruption, and Fortescue 
 states that a person accused of felony could peremptorily 
 challenge thirty-five jurors, a right which, if the jurors were 
 the witnesses and could not afterwards give evidence, would 
 make a conviction almost impossible. 
 
 It seems that this is a period of transition. 
 
 After a considerable period, when the petty jury began to 
 be considered judges of presumptions rather than witnesses, 
 the practice started of bringing in written papers, deposi- 
 tions, informations, and examinations taken out of court. 
 But it was a long time before it was thought necessary to 
 produce evidence to support a prosecution, and longer still 
 before the prisoner was allowed any evidence at all. 
 
 A method of trial, where witnesses in our sense are rarely 
 if ever called, may do its work well enough in a small com- 
 munity where everybody knows what everybody else is 
 doing ; but these primitive conditions did not last for ever, 
 and when they changed, the position of an accused person 
 must have been, according to modern notions, extremely 
 harsh and difficult. He was not permitted to call witnesses. 
 Queen Mary is said to have directed the judges to allow 
 prisoners to call witnesses in felony : but this was regarded 
 as an indulgence, the rule being that witnesses were not 
 to be heard against the crown, even in felony, and if such 
 witnesses were called, they were not sworn. 
 
 ^ Pleas of the Crown for the County of Gloucester, 92. 
 = ii. 454. 
 
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CRIMINAL TRIALS AND CRIMINAL JURY 211 
 
 Before the great civil war the following were the features Earlier 
 in which a criminal trial differed from a criminal trial of triSs°1;he 
 to-day. (1) The prisoner was confined more or less secretly, position 
 and could not prepare his defence. He was examined, and prisoner, 
 his examination taken down and used against him. (2) He 
 had no notice of the evidence which was going to be pro- 
 duced against him. (3) He had no counsel either before or 
 at trial, (4) There were no rules of evidence as we under- 
 stand them. The witnesses were not necessarily confronted 
 with the prisoner, nor were originals of documents produced, 
 the confessions of accomplices were not only admitted, but 
 were regarded as specially cogent. (5) The prisoner was not 
 allowed to call witnesses on his own behalf; had he been 
 permitted, he could not have done so with effect, for he could 
 not find out what evidence they would give, or procure their 
 attendance. In later times they were not examined on oath 
 even if they were called. 
 
 After the civil war some improvements were made. In 
 1695^ persons indicted for high treason or misprision of 
 treason were to have a copy of the indictment five days 
 before trial, and to have counsel, and witnesses upon oath. 
 In 1708^ the prisoner was allowed to have a list of the 
 witnesses and of the jury ten days before his trial. In 1702 ^, 
 in cases of treason amdfelpny the prisoner's witnesses were to 
 be sworn as well as the witnesses for the crown. 
 
 A practice also sprang up, the growth of which cannot be 
 traced, by which counsel were allowed to do everything for 
 prisoners accused of felony except address the jury for them. 
 This we find in operation in 1758 *. On the other hand, at 
 the trial of Lord Ferrers, two years afterwards, the prisoner 
 was obliged to cross-examine the witnesses without the aid 
 of counsel, and was even put in the embarrassing position of 
 
 1 7 & 8 Wm. Ill, c. 3. ^1 Anne, c. 21. ' 1 Anne, st. 2, c. 9. 
 * William Barnard! s case, 19 S. T. 815. 
 
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212 ENGLISH LEGAL INSTITUTIONS 
 
 having to examine the very witnesses called to prove the 
 defence of insanity which he himself was setting up. By 
 6 & 7 Will. IV, c. 114, all prisoners accused of felony are 
 permitted to make their fuU defence by counsel. 
 
 It is pointed out by Mr. Justice Stephen \ that the ex- 
 perience of the reigns of Charles II and James II showed 
 that juries might be quite as unjust and tyrannical as the 
 Star Chamber, and that they were equally likely to be unjust 
 on any side in politics. After the Revolution, when one of 
 the great parties of the State had won a decisive victory, 
 the administration of criminal justice became decorous and 
 humane, and as it was mainly left in the hands of private 
 persons between whom the judges were really indifferent, the 
 questions which were involved came to be fuUy and fairly 
 investigated, it being left to each party to the contest to do 
 the best he could to establish that view of the case in which 
 he was interested. 
 
 ^ H. C. L. i. 426. 
 
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CHAPTER XXIII 
 
 CIVIL PROCESS AND THE CIVIL JURY 
 
 Early civil process in this country presents two noticeable 
 features, one that there is no weighing of evidence, for the 
 methods are those of proof and not of trial, the other, that 
 all complaints must be made probable, before the defendant 
 can be called on to defend himself. Such monstratio probcMlis 
 might be a preliminary oath, visible confirmation in the 
 shape of document or tally, or some witnesses who sup- 
 ported the complainant. 
 
 Proof was one sided, and the battle was usually won or Burden of 
 lost when the court settled who was to give the proof. To ^^°° ' 
 be given the proof might be a burden, or it might be a privi- 
 lege, it might mean victory, it might mean disaster. Ques- 
 tions of such delicacy and importance were not permitted to 
 arise without some prima facie evidence produced by the 
 complainant. His bare word, or ' simplex vox,' wa^ not good 
 enough ^. 
 
 The complainant's witnesses were called the 'secta.' The 
 secta was not necessarily sworn or even examined for the 
 plaintifij but the defendant could, if he chose, state his case 
 on the examination of it, and if it disagreed he won. If it 
 agreed, he was allowed to wage his law and produce twice as 
 many, up to twelve, to support him. If these would not swear 
 or disagreed he lost \ Otherwise the ' secta ' was not sworn ; it 
 
 1 Cf. Mag. Charta, § 38. 
 
 ' But the defendant was not allowed to wage his law against a 
 
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214 ENGLISH LEGAL INSTITUTIONS 
 
 was frequently made up of relatives or dependants, and at 
 a later date was not even produced ^, though it survived as 
 an allegation in pleading till 1834, ' and therefore he brings 
 his suit.' 
 
 Profert of deeds, the last relic of the monstratio proibaMUs, 
 was not abolished till 15 & 16 Vict. c. 76, § 55. 
 
 Methods In trying a case, resort might be had to ordeal, battle, 
 of proof. ^^^^^ ^j. witnesses. 
 
 The two first may be dealt with brieily, for they did not 
 live long. 
 
 Ordeal, an appeal in more than one form to the judgement 
 of God, though not so frequent in civil as in criminal process, 
 was not uncommon in cases relating to lands ^ or status ^, but 
 fell into disuse after the decision of the Lateran Council, 
 
 Battle is described by Glanvill as one of the chief modes of 
 trial in the King's Court as in cases of debt, and we have seen 
 that it was the ordinary mode of determining a 'writ of 
 right ' ; the witnesses came prepared to fight *, and could 
 be challenged by the other side. 
 
 But this method was hated by the EngHsh; the charters 
 and usages of various towns as London and Ipswich gave 
 exemption from it, and it died a lingering death after the 
 institution of Henry's Grand Assize ^. The Statute 59 G. Ill, 
 c. 46 abolished the process with special reference to its use in 
 appeals and in writs of right. 
 
 Originally the champion was the witness who offered to 
 prove his statement per corpus suum *. 
 
 writing, his proper defence heing nient le fait, i. e. it is not the de- 
 fendant's deed. 
 
 * In 1343 the court declined to examine the ' secta,' tender of it heing 
 only formal (Y. B. 17 Ed. Ill, 48. 14). 
 
 2 PI. Ang.-Nor., 40-43. ' Ibid., 43. * Ibid., 19. 
 
 " In 1304 the court refused to allow battle in trespass, though the 
 parties had agreed (Y. B. 32, 33 Ed. I, 318-20). 
 
 ° This identity was made unnecessary by Stat, of Westminster I, c. 41. 
 
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CIVIL PROCESS AND THE CIVIL JURY 215 
 
 The Oath, if taken by the defendant, was sometimes 
 allowed to clear him. But the popular mediaeval method 
 was the oath of the defendant supported by oath helpers, 
 or as they are now called compurgators. These were not wit- 
 nesses of fact, but rather to character, and appeared as 
 believers in their principal ^. They might be kinsmen ^ It 
 was the chief method of trial in the popular courts, and in 
 the King's Court in personal actions, and was marked by 
 excessive addiction to formality. Although highly prized 
 this method of 'wager of law' became exceptional, surviving 
 chiefly in actions in debt and detinue, till its unexpected 
 appearance in King v. Williams * led to its abolition by 
 statute in 1832 *. 
 
 Witnesses. Before Henry invented his Assizes and brought Wit- 
 the Inquest or Recognition into fashion, justice was done in "^sses. 
 the local courts and judgement given by the pares curiae. 
 Some members of the court might have personal knowledge 
 of the facts ; if not, there was the form of one-sided proof, 
 without cross-examination. But we know that Edgar's 
 ordinances provided oflicial witnesses for sales of chattels, 
 twelve at least in every hundred and small ' burh,' thirty- 
 three in other 'burhs.' This was for the protection of 
 buyers, for unexplained possession of a movable which a 
 week ago notoriously belonged to some one else is apt to be 
 dangerous in primitive society. Such persons naturally 
 informed the other pares curiae their fellows. 
 
 Witnesses were also used to prove age, or death. So in 
 1219 * the defendant said the plaintiff" was a minor. This the 
 plaintiff denied, and said the court might inspect him, and if 
 they doubted he would bring his mother and relatives. The 
 
 * On the possible explanation of this institution see ch. iii. 
 ^ For a curious case of selecting compurgators by chance see B. B. 
 of Ad. ii. 170, 173. 
 " 2 B. & C. 538. * 3 & 4 WiU. IV, c. 42. 
 
 ° Bract. Note Book, ii. case 46. 
 
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216 ENGLISH LEGAL INSTITUTIONS 
 
 court said he must bring twelve legales homines. This was 
 not a jury, for he could select whom he pleased. According 
 to Bracton such a one swears he is twenty-one and the rest 
 swear the oath is true, and then they have to give reasons 
 for their belief, and each gives his reason^. The delicate 
 and dangerous question of a lady's age was apparently 
 reserved for the court on personal inspection ^. By the time 
 of Henry VII the question might be settled by a jury ^. 
 
 The A fresh beginning was made when Henry II adapted the 
 
 tioneT'" system of Inquests to the Assizes. The recognitors of the 
 Assize, or shortly ' the Assize,' was a small body chosen ad 
 hoc, as being likely to know the truth of the matter in dis- 
 pute. But it was summoned to answer a particular question 
 and no more, and the defendant could raise ' exceptiones ' 
 which had the effect of deferring or possibly destroying the 
 assize. He could raise an 'exceptio' to the writ or the 
 person or the assize. If he excepted to the assize, all the 
 ' operative words ' could be disputed such as iniuste et sine 
 mdick) — disseisivit eum — de libero tenemento stio — in tali 
 vUla. All these exceptions were 'out of the assize,' and 
 could not be determined by the recognitors of assize. They 
 were subsidiary; and at first not being cognizable by the 
 assize were tried by battle, unless either by consent or order 
 of the court, or per preceptum domini Regis* the verdict of 
 
 The a iurata or jury was taken which was sworn ad hoc. Com- 
 
 'iurata.' 
 
 ' Requisitus qualiter hoc scit ; ' what made you particularly notice 
 
 that year ? ' ' Oh ! a fire burned ray neighbour's house down on the day 
 he was christened, personaliter interfui.' Just the same form of stock 
 question, one may notice, as to-day is put to a witness who comes to 
 prove an alibi (Liber de Ant. Leg., Camden Soc, cxlix-cliii). 
 
 ' Even the king's judges sometimes confessed themselves unequal to 
 the emergency. In Y. B. 50 Ed. Ill, 6. 12, Cavendish C. J. declined 
 flatly to inspect a lady, saying, ' There is not a man in England who 
 can rightly adjudge her of age or under age. Some women who are 
 thirty years old will seem eighteen.' 
 
 ^ Y. B. 21 Hen. VII, 40, 58. 
 
 * Rot. Cur. Beg., ii. 189. 
 
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CIVIL PROCESS AND THE CIVIL JURY 217 
 
 monly the assize being ready on the spot was asked to decide 
 the point : while doing so it is not an assize, it is a iurata, 
 assisa vertitur in iuratam. 
 
 A ' iurata ' always implied the consent of the parties, and 
 so could not be attainted for a false verdict, till 1275 when 
 the law was altered ^. It wa^ not permitted to reprobate the 
 tribunal that one had chosen. A similar argument protected 
 the recognitors in the Grand Assize in Bracton's time, for 
 the party, it was said, had the choice of battle and so could 
 not complain. 
 
 In the Assizes if there was neither consent nor order of 
 court the exceptions had to be tried by battle, but the judges 
 seem to have forced the iurata on the litigants, and in all 
 new forms of action not covered by established rules trial 
 by jury was the recognized mode *. The Statute 15 Hen. VI, 
 c. 5 recites that this method is now general in cases touching 
 life and death, lands and tenements, goods and chattels of 
 every one of the king's subjects. 
 
 If a man put himself on his ' country,' the country was The 
 represented by persons who were likely to know the facts ^ patria. 
 These persons came de vicineto, for as Littleton says ' vicinus 
 facta vicini praesumitur scire,' though in time the requirement 
 of vicinage was satisfied if some came from the hundred to 
 inform the rest, or, as Fortescue * says, to enable the rest to 
 judge of the credibility of the witnesses. The number of 
 necessary hundredors, which in the reign of Ed. Ill was six, 
 was in the time of Fortescue reduced to four. The Stat. 
 
 1 Stat, of West. I, c. 38. ^ See Stat. Walliae, c. xi. 
 
 ^ The parties might ' put themselves ' on one man who knew the 
 facts : as in the case where a defendant asserted that the plaintiff 
 ' assigned ' him to pay money to the Earl of Oxford. The plaintiff 
 denied this^ and et se de hoc ponit super ipsum. comitem. The defendant 
 does the like. A writ is sent to the Earl, who comes and says the 
 assignment was made (Eot. Our. Beg., No. 140 ; Pasch. 34 Hen. Ill, 
 m. 17). * c. 26. 
 
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218 ENGLISH LEGAL INSTITUTIONS 
 
 35 Hen, VIII, c, 6 restored the number of six, a provision 
 soon virtually repealed by Stat. 27 Eliz. c. 6, which required 
 only two. At length, by Stat. 4 & 5 Anne, c. 16, the re- 
 quirement was abolished in civil cases, it being sufficient if 
 the jury came from the body of the county at large ^. 
 
 If the ' patria ' did not know of itself, it was expected to 
 collect evidence, and certify itself, as the writ said ' se inde 
 certificent,' and it was allowed about a fortnight for doing it ^. 
 But it is not known when the witnesses first make their 
 formal appearance in court. 
 
 Charters and writings were from the first shown to the 
 jury. If a plaintiff produced a writing under seal properly 
 attested by witnesses, and the writing was denied, he put him- 
 self, according to Bracton, 'super patriam et testes in carta 
 nominatos.' The sheriff then summoned the testes and the 
 twelve milites 'ad reeognoscendum.' If the witnesses were 
 dead or out of the realm, he put himself ' super patriam.' 
 Bracton mentions that the party could prove his deed by 
 similarity of impression of the seal. If the 'testes' came the 
 jurors questioned them, and the court questioned them all, 
 sometimes separately, in order to get the best information ^. 
 
 It was apparently improper for a jin-y specifically to find 
 matter of record without evidence*, or a deed^ unless pro- 
 duced, because if it had been produced to the other side, it 
 might perhaps have been avoided on the ground of insanity 
 or minority or some other defect. 
 
 Chal- Documentary evidence apart, it seems that temp. Edward III 
 
 tW^ a distinction is appearing, in that witnesses cannot be chal- 
 
 nesses and lenged, while jurors can, and that while the jurors are sworn 
 Jurors. 
 
 > Blackstone, iii. 360. ' Britton, ii. 87. 
 
 ' PI. Abb. 331, col. 1. 
 
 * Y. B. 14 Ed. Ill, 25 sq., and Introd. xxxvii-xl (Rolls Series). 
 
 ■> Y. B. 7 Hen. V, 5, pi. 3. 
 
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CIVIL PROCESS AND THE CIVIL JURY 219 
 
 to tell the truth to the best of their knowledge, ' secundum 
 credulitatem,' the witnesses are sworn to tell the truth simply, 
 for they ought to say nothing that they do not know for 
 certain. This distinction, which is highly significant, was 
 known tO the Law Merchant £^s early as the fourteenth cen- 
 tury ^. The Law Merchant indeed seems to have been far in 
 advance of the Common Law in these matters. 
 
 By the time of Henry VI we find Fortescue, the chancellor, 
 describing trial by jury in a civil action, as a trial by evi- 
 dence, ' each of the parties by themselves or their counsel, in 
 the presence of the court shall declare and lay open to the 
 jury all and singular the matter and evidence whereby they 
 think they may be able to inform the court concerning the 
 truth of the point in question. That each of the parties 
 has a liberty to produce before the court all such witnesses 
 as they please or can get to appear on their behalf, who, 
 being charged on their oaths, shall give any evidence that 
 they know touching the truth of the fact concerning which 
 the parties are at issue ^.'' 
 
 It is curious to find that about the same time the judges 
 were expressing the view that if A volunteers evidence to 
 show the truth to B he is guilty of maintenance ; he must be 
 asked for his evidence unless he has some interest in the 
 case^. In consequence people asked for a subpoena to be 
 sent to them which should protect them *- 
 
 This may have helped to prevent oral testimony from being 
 given in court; and there are indications that as compared 
 with the jury the witnesses are comparatively unimportant. 
 So in 1499, where a jury separated without leave in a storm 
 and talked to a friend of one of the parties, the court said 
 that it was immaterial, for evidence was only given to inform 
 
 ' App. 3. The Little Bed Book of Bristol, c. vi. 
 
 * De Laud. Leg. Aug., c. xxvi. 
 
 = Cf. Y. B. 28 Hen. VI, 6. 1. * Cal. Proc. Ch., i. 19. 
 
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220 ENGLISH LEGAL INSTITUTIONS 
 
 their consciences, and if no evidence were given yet the jury 
 must give a verdict \ 
 
 In 1562 ^ the right was first given to have process against 
 all sorts of witnesses, which indicates that the practice of 
 examining witnesses before the jury has become general. 
 
 It was regarded as the right of the parties to give informa- 
 tion to the jury after impannelling and before trial % and at 
 first the parties could talk to the jury after they had retired, 
 but in the last half of the fourteenth century this practice 
 and that of giving new documents to the jury after retire- 
 ment was discouraged by fine and imprisonment, and in 
 14>81 * we find Brian C. J, delivering to the jury all the 
 material evidence, but what was not material he would not 
 allow to be delivered. But in Burlier s case, in 1670^, itj 
 seems to have been recognized that a jury might act on its I 
 private knowledge, even of documents not known to the 
 parties. 
 
 By Stat. 14 & 15 Vict. c. 99 the parties to a civil action 
 became for the first time competent witnesses. 
 
 Unanimity was not at first necessary. According to Meta 
 if a civil jury disagreed they might be afforced, or compelled 
 by starvation to find a verdict, or the judge might take 
 a majority verdict, ex dicto maioris partis iuratorum, but in 
 the second half of the fourteenth century the rule appears 
 that twelve must agree ^■ 
 
 The number of the early juries does not seem to have been 
 fixed. Perhaps Henry's recognitions established twelve as 
 the proper number, but this is uncertain. 
 
 ^ Y. B. 14 Hen. VII, 29. 4. =! By 6 Eliz., c. 9, § 6. 
 
 ' See 6 Hen. VI, c. 2, as to the sheriffs furnishing the parties with 
 a copy of the pannel. 
 * Y. B. 21 Ed. IV, 38. 1. = Vaugh. 135, 149. 
 
 « Y. B. 41 Ed. Ill, 31, 36 ; s. c. 41 "Ass. 11. 
 
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CIVIL PROCESS AND THE CIVIL JURY 221 
 
 At the present day the general rule is that fact is for the 
 jury, law for the judge. The old popular courts declared the 
 custom and found the facts. But in the fourth year of 
 John a jury says that nonpertimet ad eos de iure discemere^. 
 This distinction is found in the second book of the Decretals, 
 where the direction is, that if the facts are admitted, the 
 question is for the judge alone, if the facts are not admitted, 
 they must be proved by witnesses and not by ordeal or duel. 
 
 Although the County Court and the Coimty Court jury The 
 are institutions well known at the present day, they have bounty 
 no connexion with the old local courts of the eleventh Court. 
 century. The local courts that survived are either held in 
 chartered towns, as the Passage Court of Liverpool and the 
 Chancellor's Court in Oxford, or are Courts of Request 
 foimded on statute. 
 
 The modem County Court is the creature of statute. The 
 first County Court Act was passed in 1846, and divided the 
 country into circuits, each with a Court of Record, which had 
 jurisdiction, up to a certain amount, and in specified classes 
 of case. Subsequent statutes have extended these limits, 
 and further extension may well be expected. The judge is 
 appointed, and is removable, by the Lord Chancellor. He 
 sits either alone or with a jury of five, and from him on 
 a question of law raised at the trial, an appeal lies to the 
 High Court 2. 
 
 1 PI. Abbrev., 40 Line, 4 John. ^^ 51 & 52 Vict. c. 43. 
 
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CHAPTER XXIV 
 
 THE CLERK 
 
 The law Although the custom of the King's Court became the 
 
 Church Common Law of the land, there were three classes of persons 
 
 who were in a varying degree exempt from it — the Clerk, the 
 
 Jew, and the Merchant. 
 
 Before the Norman Conquest, the law of the National 
 Church consisted of a body of canonical law that contained 
 the Scriptures, the Creeds, and the canons of General Councils 
 which were recognized as authoritative in the whole Western 
 Church, and secondly the decrees of National Councils, manuals 
 of discipline known as ' Penitentials,' some foreign canons, 
 and the legislation of Christian kings. The union between 
 Church and State was complete and entire. 
 
 The proper court of the Church was the Court of the 
 Bishop : his jurisdiction was personal and could be exercised 
 'anywhere, in camera or in itinere, and the bishop's executive 
 officer was the archdeacon. The bishop was also a secular 
 lord, and had a recognized place in the courts of the Hundred, 
 the Shire, and the Witan. In these secular courts, it is sup- 
 posed ^ that oifences of a mixed character were tried which 
 were liable to both civil and ecclesiastical penalties, such as 
 adultery and detention of tithe. The procedure is assumed 
 to have been ordinary, viz. by ordeal and compui'gation. The 
 Metropolitan authority of the archbishop was recognized by 
 the bishops. 
 
 ^ Report of the Ecclesiastical Courts Commission, 1883. 
 
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THE CLERK 
 
 Provincial synods were from time to time summoned, and 
 were attended by the clergy, and sometimes by the king 
 and the lay lords. In them canons were passed, and occa- 
 sionally bishops were removed from their sees. It is very 
 doubtful if there was any appeal to a superior court secular 
 or religious at that time, and no traces have been discovered 
 of appeals to Rome. 
 
 The Conqueror as in secular so in ecclesiastical matters The 
 imposed no new code of law. His activity was directed La^"" 
 rather to the proper administration of the laws civil and 
 religious, than to new legislation which in matters ecclesi- 
 astical was always carefully watched by the crown. The 
 Canon Law was still the traditional law of the Church, which 
 was always liable to be altered by the Decretals of the popes, 
 which were the statute law of the Church K 
 
 ^ There have been two views held as to the authority of the Canon 
 Law of Rome in the Ecclesiastical Courts of this country. The Report 
 of the Ecclesiastical Courts Commission, 1883, gave support to the view 
 that though the Canon Law was of great authority and entitled to 
 respectful consideration, yet it was not binding. On the other side 
 Professor Maitland, in his Canon Law in the Church of England, firmly 
 maintained that the Canon Law of Rome was in the Courts Christian 
 of this country regarded as absolutely binding. 
 
 But inasmuch as the late Bishop of Oxford, who drew the Com- 
 missioners' Report, intimated to me sometime before his death that he 
 was not prepared to dissent from Professor Maitland's view, that view 
 must be considexed for the present as authoritative. It is put briefly 
 as follows. 
 
 The Decretum Gratiani was the text-book of the old Church law, but 
 in 1234 it was out of date. Three popes, Gregory IX, Boniface VIII, 
 and John XXII, issued three collections of Decretals, each of which 
 was a statute-book for the whole Catholic Church, and as such 
 binding. 
 
 Professor Maitland calls as his chief witness William Lyndwood, the 
 great English Canon lawyer., and the principal official or judge of the 
 Archbishop of Canterbury : he wrote a commentary for beginners on 
 the archiepiscopal constitutions of Canterbury. In this he never 
 suggests that the Decretals are other than law, and that though their 
 meaning be doubtful they are not binding, and he explicitly states that 
 
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ENGLISH LEGAL INSTITUTIONS 
 
 Effect of The edict of William which severed the civil and spiritual 
 edict. courts was pregnant with far-reaching results, but its imme- 
 
 diate effect was to develop the machinery of ecclesiastical 
 judicature. The tribunal was no longer of a mixed character, 
 The the laity were no longer united with the clergy. Dioceses 
 
 Courts. were divided into archidiaconal districts, and a regular 
 system of appeal was instituted. This activity first mani- 
 fested itself in the vigorous growth of the Archdeacon's 
 Court, which within fifty years had usurped a customary 
 jurisdiction which began seriously to rival that of the Bishop. 
 To meet this competition the bishops created Officials, Chan- 
 cellors and Commissaries, trained experts whose duty was to 
 represent the bishop in his court. This delegation did not 
 prevent the bishop from sitting himself were he so minded ^, 
 and these offices though strictly tenable during the bishop's 
 pleasure became by usage life appointments. 
 
 the Pope is ahove hoth a general Council and the law, and that to 
 dispute the authority of a Decretal is heresy. Obstinate heretics, he 
 adds, are to be burnt. 
 
 In contrast with the Pope, an archbishop can make statutes or con- 
 stitutions for his province, either of a declaratory or supplementary 
 nature, but such ordinances cannot derogate from the Decretals. If 
 they are contrary to the Decretals they are ultra vires, and at any rate 
 they may be upset by a future Decretal. As might be expected the 
 archiepiscopal constitutions did not contain anything of great im- 
 portance. Not only was the pope superior to the archbishop, but so 
 was the legate a latere ; hence Lyndwood makes the following list in 
 order of authority : (i) Decretals, (ii) legatine constitutions, (iii) pro- 
 vincial constitutions, provided they do not contravene the other two. 
 
 Though the king and the king's courts could and did restrict the 
 area of activity for the Church Courts as by writs of prohibition, yet 
 within the permitted limits the Church could cultivate its own garden 
 in its own way, nor was there any claim to dictate to the Church 
 Courts what judgements should be given. When the Church took the 
 position that subsequent marriage legitimated offspring born before 
 marriage, the King's Court declined to recognize the church view so far 
 as it affected the law of inheritance, but for the purposes of ordination 
 permitted an illegitimate person to take orders with a dispensation. 
 
 ' See R. V. Tristram, 1902, 1 K. B. 816 (C. A.). 
 
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THE CLERK 225 
 
 From the Archdeacon's Court appeal lay to the Bishop, 
 from the Bishop to the Archbishop, and according to foreign 
 custom thence to the Pope. But the Pope was not merely The juris- 
 the ultimate court of appeal, he was an omni-competent f^^^^^ 
 court of first instance for the whole of Christendom, ' dominus 
 papa index est ordinarius singulorum ^,' and he could and did 
 delegate his jurisdiction either generally or in particular cases ; 
 and in this country his delegates would be English ecclesi- 
 astics appointed by the papal rescript. In such a case the 
 plaintiff applied to the pope for a writ or breve just as in 
 a sectilar matter he went to the king's chancery. Popes also 
 appointed resident legates to represent them, and when this 
 step was objected to by the kings, clothed the Archbishop of 
 Canterbury with legatine authority which had the effect of 
 making it quite uncertain in which capacity, metropolitan or 
 legatine, the archbishop on any occasion was acting. Appeals 
 to Rome were regarded by the kings with disfavour. The 
 Constitutions of Clarendon ^ provided that appeals from the 
 archbishop should lie to the King's Court for failure of justice, 
 but the panic which attacked Henry after the murder of 
 Becket made the provision a dead letter, and appeals to 
 Rome went on as before. Henry III and Edward I both 
 forbad their subjects to be cited out of the realm, statutes 
 of praemunire penalized the practice, but appeals continued, 
 till the Reformation, in those matters which lay outside the 
 cognizance of the secular courts, viz. in testamentary and 
 matrimonial causes. 
 
 The ecclesiastical system in its complete form was as 
 follows. The kingdom was divided into provinces, pro- 
 vinces into dioceses, dioceses into archdeaconries, archdeacon- 
 ries into rural deaneries, and there were besides ' peculiars ' 
 belonging to the crown, the archbishops, bishops, deans, 
 chapters, and prebendaries. Proper courts corresponded with 
 
 ' And see Bracton, f. 412. ^ Cap. viii. 
 
 Q 
 
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226 ENGLISH LEGAL INSTITUTIONS 
 
 these divisions, provincial, diocesan, archidiaconal, ruridecanal, 
 and peculiar. 
 
 The Arch- The provincial courts of the archbishop were essentially the 
 Courts. same in both provinces. There were four in Canterbury, and 
 two in York. In Canterbury they were, the Court of the 
 OfEcial Principal or the Court of Arches, the Court of 
 Audience, the Prerogative Court (till 1857), and the Court 
 of the Archbishop's Peculiars. In York they were the 
 Chancery Court, and (tiU 1857) the Prerogative Court. 
 
 The Court of the Official Principal or the Cotu-t of Arches 
 was the consistory of the archbishop, the court of appeal 
 from the diocesan courts of the province, and also a court 
 of first instance in all ecclesiastical matters. The judge was 
 the Official Principal, he held all the judicial powers of the 
 archbishop and stood in relation to him as the Chief Justice 
 did to the king, process issuing in his name. He also has the 
 style of ' Dean of Arches ^ : originally the Dean held a sub- 
 ordinate position, and then the two offices were merged. 
 
 The Court of Audience was the court in which such 
 personal jurisdiction of the archbishop was exercised as was 
 not exhausted by the appointment of the Official Principal. 
 It is said to have had co-ordinate authority, and process issued 
 in the name of the archbishop. It has been suggested that 
 perhaps the foundation of this jurisdiction was legatine. It 
 was presided over by the Archbishop in person or by his 
 Vicar-General. 
 
 The Prerogative Court took the testamentary and matri- 
 monial business. If the Official Principal did not sit, another 
 judge took his place with the style of Master, Keeper, or 
 Commissary. 
 
 The Court of Peculiars was a branch or an aspect of the 
 Court of Arches, exercising jurisdiction originally over the 
 thirteen London parishes which are exempt from the juris- 
 diction of the Bishop of liOndon. 
 
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THE CLERK 227 
 
 In the province of York the Chancery Court corresponds 
 to the Court of Arches, the Prerogative Court to the court 
 of the same name in Canterbury. 
 
 The Diocesan Court was the consistory court of the bishop, The 
 and was held by the bishop's Chancellor, or Official Principal, q^^^ ^ 
 It took all ecclesiastical causes arising in the diocese. If 
 the see was vacant, the archbishop through the vicar-general 
 of the province presided. 
 
 The Archdeacon's Court originated in the functions of the The Arch- 
 archdeacon, which were at first purely executive. It was his (;Qujt. 
 duty to hold visitations in his district, inquiring, amongst 
 other matters, into the condition of church fabric and church 
 furniture. 
 
 But by degrees the Archdeacons built up a customary 
 jurisdiction of a more extended character depending partly 
 on usurpation, partly on varying agreements made with 
 the bishops. The ruridecanal court which was not strictly 
 judicial, but was held preparatory to the visitation of the 
 archdeacon, has become obsolete. 
 
 The bishop's visitations gave an opportunity for hearing 
 complaints of or by the clergy, and for correcting abuses so 
 presented according to the methods prescribed in the ' Peni- 
 tentials,' and thus became an effective part of the episcopal 
 and archidiaconal jurisdiction. 
 
 The procedm-e for over three centvu-ies before the Reforma- 
 tion followed the forms of the Roman Civil Law. 
 
 TTie Extent of the Spiritual Jimsdiction. 
 When the lay and spiritual courts became distinct, the 
 Church claimed jurisdiction in two great classes of case : 
 (1) where a clerk was accused of felony ; (2) where the matter 
 was of a spiritual nature. 
 
 The claim of the Chiurch to try its felonious clerks pro- 
 
 a2 
 
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228 ENGLISH LEGAL INSTITUTIONS 
 
 duced an extraordinary condition in the English criminal 
 law and is discussed in the following chapter. 
 
 Matters of The matters which the Church declared to be of a spiritual 
 
 spiritual nature were numerous, and some of its claims have also had 
 nature. ' 
 
 momentous eifects on our law, for to them is directly due the 
 
 difference in the devolution of real and personal properly. 
 
 The Church courts assumed jurisdiction, with respect to 
 churches, over patronage, furniture, ritual, and revenues ; 
 with respect to the clergy, over faith, practice, dress, and 
 behaviom- in or out of church ; with respect to the laity, over 
 morality, religious behaviour, marriages, legitimacy, wills, and 
 administration of intestate estates. They also concerned 
 themselves with the maintenance of doctrine, and claimed to 
 examine into contracts where faith was alleged to have been 
 pledged and broken, into oaths, promises, and fiduciary 
 undertakings ^. 
 
 Suits about ecclesiastical property were always, with the 
 ' exception of advowsons, claimed by the secular courts : and 
 advowson suits were reclaimed by Henry II by the Assize 
 of Darrein Presentment and were thereafter tried in the 
 King's Coiut ". The King's Courts never interfered in church 
 services, church administration, or the distribution of church 
 revenues. 
 
 The The testamentary and intestate business fell into the 
 
 execu or. ecclesiastical hands in the twelfth and thirteenth centuries. 
 
 ^ In a book, now rarely to be bought, by Archdeacon Hale con- 
 taining precedents of criminal cases in the Consistory Court of London 
 (1480-1639) we find inter alia the following topics dealt with : forni- 
 cation, adultery, incest, bigamy, rape, sorcery, unseemly demeanour 
 in church, absence from church, the marital relations, haunting taverns 
 and keeping bad company, defamation, tale-bearing, administering . 
 goods without the ordinary's authority, destroying parish boundaries, 
 practising as surgeon or midwife without licence, vexatious prosecution, 
 not living in charity, and fox-hunting and fowling on Sundays. 
 
 ^ Constitutions of Clarendon, cap. i. 
 
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THE CLERK 
 
 As freeholds could not be devised by will, the jurisdiction 
 was restricted to chattel interests, and the competence of the 
 church coxuts to compel the executor to carry out the testator's 
 directions was conceded by the king's courts without difficulty 
 and was firmly established before Glanvill wrote. The 
 administration of intestate estates is closely connected with 
 testamentary business, and naturally accompanied the testa- 
 mentary jurisdiction. 
 
 The matrimonial jurisdiction rested on the sacramental and 
 religious character of the ordinance, and was undisputed. 
 
 No objection was ever raised to the Church's jurisdiction 
 over ecclesiastical offences committed by the clergy. With 
 regard to the laity the Church claimed the correction of 
 sinners for their souls' health (pro scdute cmimae). So far as 
 it dealt with such immorality as was untouched by the State, 
 the claim was not seriously attacked before the Reformation. 
 At the present day, indeed, it seems that if in England incest 
 is punishable at all, it is only so in the ecclesiastical courts. 
 But the pretensions of the Church under this head included 
 the cognizance of breach of contract, perjury, and slander, 
 where civil remedies coexisted. These claims were maintained 
 till the Reformation and were regarded with much jealousy ^. 
 The jurisdiction was exercised under the visitatorial and 
 penitential system, or on express complaint, the penalties 
 imposed being penitential, but commutable for a money 
 payment. The efforts of the crown were directed mainly 
 to restricting appeals which were vexatiously multiplied, and 
 limiting the area of the jurisdiction. 
 
 The grave offence of heresy was in the fourteenth century Heresy, 
 a novelty ; and if we except the case of the unlucky deacon 
 mentioned by Bracton, it seems that no penalty beyond 
 excommunication could be enforced. But the canonists of 
 the thirteenth and fourteenth centuries took their views of 
 
 ' Constitutions of Glarendmi, cap. xv. 
 
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230 ENGLISH LEGAL INSTITUTIONS 
 
 heresy from the Theodosian Code, which punished people 
 such as Manichaeans with death, and they contended that 
 the ecclesiastical courts could convict for heresy and that 
 the civil power was bound to act as executioner. The common 
 lawyers however stoutly resisted this encroachment. Accord- 
 ingly, in 1382, the clergy having found their spiritual 
 weapons inefficacious, resorted to an unparalleled and in- 
 structive expedient. They forged an Act of Parliament, 
 5 Ric. II, st. 2, c. 5, directing the sheriffs, on the certificate 
 of the prelates, to hold ' in arrest and strong prison ' heretics, 
 till they conformed. Next Session the Commons preferred 
 a Bill stating that they had never assented to this Act, and 
 desiring that it should be declared void. The Royal Assent 
 was given, but the clergy so managed that this Act of Repeal 
 was never published nor printed with the Acts of Parliament. 
 It is now printed 3 Rot. Pari., p. 141, no. 53. 
 
 The writ On February 26, 1400, the king, the temporal lords assenting, 
 tico com- issued a writ ^ for burning one William Sawtre, who had been 
 burendo. ' convicted by the Provincial Council of Canterbury as a relapsed 
 heretic. 
 
 On March 10, 1400, the Statute 2 Hen. IV, c. 15, was 
 passed, directing that obstinate and relapsed heretics should 
 be burnt. This being the position, the church party main- 
 tained that it proved the existence of a writ de heretico 
 comburendo at common law. If such a writ existed, it is 
 curious that it was never used, and if it was usual, the assent 
 of the temporal lords was not required for its issue. 
 
 The Statute of Henry IV was reinforced by a severer 
 statute in 1414^, and mider it people were examined, pimished, 
 and burnt freely down to 1539, when the Act of the Six 
 Articles* was passed, defining heresy and punishing it with 
 burning, imprisonment, and execution as a felon. 
 
 ^ 3 Rot. Pari., p. 459 a. ^ 2 Hen. V, c. 7. 
 
 ' 31 Hen. VIII, c. 14. 
 
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THE CLERK 231 
 
 On the accession of Edward VI these statutes were repealed 
 and the common law restored, but with the construction 
 added, that the writ de heretko comburendo existed at 
 common law, and issued after conviction by a Provincial 
 Council. 
 
 Mary re-enacted these statutes, Elizabeth repealed them, 
 but established the Court of High Commission. Practically 
 the statute by its wording took no account of any one but 
 Anabaptists, i. e. Unitarians. These ' wretches abhorred in 
 the eyes of all orthodox Anglicans' were tried and burnt 
 under this supposed common law writ, the last execution of 
 the kind occurring in 1612 ^. 
 
 In 1640 the ecclesiastical courts fell, in 1661 the ordinary 
 ecclesiastical courts were revived, but deprived of the eas officio 
 oath, and the law of heresy fell into a state of obscurity. In 
 1677 the writ de heretico comburendo was abolished by 
 29 Car. II, c. 9, the clergy being only permitted the use 
 of excommunication, deprivation, degradation, and other 
 ecclesiastical censures. 
 
 'As a mere matter of legal theory,' says Mr. Justice 
 Stephen, 'I know of no reason why any layman who is 
 guilty of atheism, blasphemy, heresy, schism, or any other 
 damnable doctrine or opinion should not be prosecuted in an 
 ecclesiastical court and have penance enjoined, e. g. the public 
 recantation of his opinions, and, on refusal, excommunication, 
 and the comt on that might direct imprisonment for not 
 more than six months ^.^ 
 
 The Reformation Period. 
 
 The Reformation marked a great change. The Church 
 was now expected to enforce and did enforce the Statutes 
 of Parliament. The Canon law was permitted only in so far 
 as it was not repugnant to the Laws of the Land. 
 
 * 10 Jac. I. ^ Stephen, History of the Criminal Law, ii. 468. 
 
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ENGLISH LEGAL INSTITUTIONS 
 
 Legisla- By the Statute of Citations^ Henry forbad the citation 
 
 Hen" ^y *^® Provincial Court of persons resident in the dioceses 
 VIII. of the suffragans, and thus stopped the direct jurisdiction of 
 
 the archbishop, which was perhaps of legatine character, or 
 was perhaps claimed by the archbishop over his province 
 in humble imitation of the pope's 'ordinary' jurisdiction 
 of first instance over Christendom. 
 
 The Statute of Appeals ^ forbad appeals to Rome : they 
 went no further than the Court of the Archbishop. 
 
 The Act for the Submission of the Clergy ^ disallowed any 
 new canons made without the Royal authority. The old 
 canons were to be revised ; tiU revision, all canons not re- 
 pugnant to the law and the royal prerogative were to stand. 
 The immediate result of this was the desuetude of the canon 
 law, the universities ceasing to give degrees in it as a separate 
 faculty. Not more than seven or eight persons after that 
 period graduated at Oxford in canon law, and then imder 
 the description of Doctors Utriusque luris. A forther appeal 
 was allowed from the archbishop to the King in Chancery : 
 this Court thus took the place of the pope, and was popularly 
 known as the Court of Delegates. 
 
 By the Statute of Supremacy* almost unlimited powers 
 of ecclesiastical jurisdiction were assumed, and under it, a 
 commission, of which no copy exists, was issued to Crom- 
 well as Vicar-General and Vicegerent with large powers 
 of visitation which he used vigorously, and which after- 
 wards served as a precedent for the establishment of the 
 Coiut of High Commission. The old tribunals remained, 
 'but the supreme judicature of the king exercised through 
 special commissions of visitation and jurisdiction, and the 
 obligation under which the bishops or some of them placed 
 themselves by taking out commissions for the exercise of 
 
 1 23 Hen. VIII^ c. 9. ^ 24 Hen. VIII, c. 12. 
 
 ' 25 Hen. VIII, c. 19. * 26 Heu. VIII. c. 1. 
 
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THE CLERK 
 
 their ordinary jurisdiction, paralyzed the working of thp 
 ancient courts^.' 
 
 The reign of Mary was retrogressive and episodical. The 
 accession of her sister is of importance, ' the statutes passed 
 in the first Parliament of Elizabeth for their comprehensive 
 as well as their permanent character, embracing the whole 
 subject of the ecclesiastical constitution and remaining in all 
 but one important matter practically in force until the present 
 century.' 
 
 The Royal jurisdiction in matters ecclesiastical was imme- 
 diately restored. The Act of Uniformity^ while providing 
 process before lay tribunals recognized and confirmed the 
 power of the Ordinary to reform, correct, and punish by 
 censures of the Church all offenders against the provisions 
 of the Act. The joint effect of the Marian and Elizabethan 
 legislation was that the authority under which the ordinary 
 courts were held was that of the archbishops, bishops, and 
 ordinaries. 
 
 As the canon law had never been revised, it remained in The law 
 force so far as it was not contrary to the law or the royal qi/ t^ 
 prerogative, and such canons and the king's ecclesiastical laws 
 were concurrently administered by the ecclesiastical courts. 
 To this body of law were added, canons made in convocation 
 with royal sanction, royal proclamations, injunctions, and 
 advertisements issued in virtue of the supremacy or under the 
 Act of Uniformity. 
 
 The ecclesiastical jurisdiction of Elizabeth was exercised by : 
 
 1. The old courts administering the ancient law modified 
 as above stated. 
 
 2. The Court of High Commission *, 
 
 3. The Court of Delegates ^ 
 
 * Report of Ecclesiastical Commission, xxxiii. sq. ^ 1 Eliz. c. 1. 
 
 => Created under 1 Eliz. c. 1, § 18. * 26 Hen. VIII, c. 19. 
 
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234 ENGLISH LEGAL INSTITUTIONS 
 
 In Whiston's case^ the right of Convocation to exercise 
 jurisdiction by examining, censuring, and condemning here- 
 tical tenets and the authors and maintainors of them, was 
 affirmed by eight judges to four. But these expressions were 
 extra-judicial, and the better opinion seems to be that the 
 power of Convocation to condemn a heretical work is as well 
 established as its incompetence to try a clerk for heresy ^, 
 
 TTie Court of High Commission. 
 
 By 1 Eliz. c. 1 the Crown was empowered to issue com- 
 missions for the purpose of correcting all manner of errors, 
 heresies, schisms, abuses, offences, contempts, and enormities. 
 Under the statute temporary commissions were at various 
 times appointed. One issued on June 24, 1559, for the 
 dioceses of York, Chester, Durham, and Carlisle, and five 
 altogether issued during the first twenty-five years of Eliza- 
 beth's reign. 
 
 In 1583 a permanent Court was established of forty-four 
 persons, twelve being bishops, and three making a quorum. 
 Under the general words of the statute it exercised almost 
 despotic powers of fining and imprisoning, even for offences 
 of by no means spiritual cognizance. It was as arbitrary 
 as any lay court, as inquisitorial as any ecclesiastical court. 
 It only differed from the Roman Inquisition in having no 
 power to kill or torture. It was for suitors a court of first 
 instance, and was open to informers of every class, it pro- 
 ceeded on suspicion, information, presentation, or inquiry, 
 and except for a short time under James I, it was subject to 
 no appeal. It did not, however, supersede the courts of the 
 ordinary, but exercised concurrent jvurisdiction. While there 
 is sufficient evidence of jurisdiction exercised by it in doctrinal 
 and disciplinary matters, the largest proportion of offences 
 comes under the head of misconduct and immorality, both 
 
 ' 15 State Tnals, 703. ^ Phillimore, Ecclesiastical Law, p. 1961. 
 
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THE CLERK g35 
 
 of clergy and laity, and of proceedings in recusancy and 
 nonconformity. The ex officio oath was largely used and 
 twenty-four interrogatories of the most stringent type were 
 drawn up and were administered to every ' suspect ' clergy- 
 man. Not only his public proceedings but his private 
 conversation was investigated. If he declined ihe esc officio 
 oath, he was deprived and imprisoned for contempt. 
 
 The Court was abolished by 16 Car. I, c. 11, and any new 
 Commission forbidden by 13 Car. II, c. 12. Nevertheless 
 James II tried to revive it under the name of the ' Court of 
 Commissioners for Ecclesiastical Causes ' : it was to consist 
 of three clerics and four laymen, and Jeffreys was to preside. 
 But James' reign came to a sudden end, and his attempt 
 was declared illegal by the Bill of Rights. 
 
 The Court of Delegates. 
 
 The powers of this Court were full and final : it carried the 
 full judicial authority of the crown, and from it there was 
 no appeal. But the Elizabethan lawyers held that in virtue 
 of the supremacy, there remained in the crown the power of 
 rehearing the whole case de novo by a Commission of Review, 
 issuing on a petition to the King in Council. 
 
 The iJfelegates could not hear appeals from the Court of 
 High Commission, but from the ordinary courts could take 
 appeals on all matters, cognizable therein, with the possible 
 exception of heresy. 
 
 The Delegates were to be ' such persons as shall be named Its com- 
 by the king's highness.' Doctors of the civil law were always 
 employed in conjunction with bishops or judges. The bench 
 was made up from a rota of D.C.L.'s and the common law 
 puisne judges. The original commission was filled by three 
 common law judges, three senior and three junior D.C.L.'s, 
 taken in order, beginning at both ends of the list. If sentence 
 was to be pronounced one common law judge must concur. 
 
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236 ENGLISH LEGAL INSTITUTIONS 
 
 'The judges in the Court of Delegates did not publicly 
 assign the reasons of their sentence, but in deliberating on 
 their judgement they assigned their reasons to each other 
 and in the presence of the registrar.' 
 
 In 1830 this court was made the subject of a Royal 
 Commission which reported in 1832. No substantial charge 
 of injustice or excess of powers could be laid against it, 
 though its proceedings were somewhat expensive and dilatory, 
 ' We are informed that it seldom reversed the judgements 
 of the Provincial Courts, that it was so far as the civilian 
 element went frequently composed of junior and inexperienced 
 Doctors, that its proceedings were undignified, especially the 
 mode of payment (a guinea a day paid by the victorious 
 party at the close of the cause to each of the judges). The 
 fact, moreover, that the reasons for the judgements were 
 not given seems to have been regarded as infosing an 
 element of uncertainty as to the nature of the law adminis- 
 tered by the court ^.' The learned witnesses who appeared 
 before the Commission were, however, unable to suggest 
 anything more satisfactory. 
 
 and abo- In consequence of the Report the Court was aboHshed for 
 almost aU purposes by 2 & 3 Will. IV, c. 92 (the exception 
 being the recourse allowed to the Delegates by the patent of 
 a Colonial Bishop). 
 
 By the same Act Commissions of Review were forbidden ; 
 the powers of the Court of Delegates were transferred to the 
 King in Council, and by 3 & 4 WiU. IV, c. 41, went to 
 the Judicial Committee of the Privy Coimcil, further regula- 
 tions being made by 3 & 4 Vict. c. 86, §§ 15, 16, and 6 & 7 
 Vict. c. 38. 
 
 Appellate The Appellate Jurisdiction Act of 1876 restored to the 
 
 Jurisdic- Privy Council the iurisdiction which had for a time been 
 tion Act. •' •> 
 
 ^ Report of Ecclesiastical Commission, 1883. 
 
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THE CLERK 237 
 
 menaced by the Judicature Act, 1873, and it was provided 
 that a number of archbishops and bishops to be appointed by 
 Order in Council (five being subsequently the number fixed 
 upon), should sit as assessors to the Judicial Committee. 
 
 The powers of the Church courts have been considerably Jurisdic- 
 affected by legislation. Church 
 
 In 1813, by 53 Geo. Ill, c. 127, excommunication was ^•''^'*^- 
 prohibited as a penalty for non-appearance on citation, or for 
 contempt, irregularities which seem to have been incidental 
 to cases of non-payment of church rates (see 3 & 4< Vict. 
 c. 93). By 2 & 3 Will. IV, c. 93, provision was made that 
 the orders of the courts should be enforced by sequestration. 
 
 By 18 & 19 Vict. c. 41, suits for defamation were abolished, 
 and by 23 & 24 Vict. c. 32, ecclesiastical proceedings against 
 laymen for brawling were similarly dealt with. 
 
 In the case of Phillimore v. Machon ^ it was held that since 
 the passing of 4 Geo. IV, c. 76, the ecclesiastical jurisdiction in 
 perjury had gone ; and that a statute giving jurisdiction to 
 a temporal court in any matter, inferentially withdraws that 
 matter from the cognizance of the ecclesiastical tribunals. 
 
 It should be observed that perjury in an ecclesiastical 
 matter was properly cognizable in the spiritual courts. If it 
 was a mere voluntary oath (laesio Jidei) opinion fluctuated. 
 The early view was that if the oath occurred in a spiritual 
 matter, e. g. an oath to marry, that was for the ecclesiastical 
 courts, but not if otherwise, e. g. an oath to pay money, for 
 on that an action would lie at common law. The later 
 opinion, temp. Ed. IV, was that in laesio Jidei the spiritual 
 court might punish ex officio, but not at the suit of the 
 party. 
 
 Peijury 'in a judicial proceeding,' the only species now 
 known to the criminal law, before the reign of Elizabeth 
 
 1 L. R. 1 P. D. 481. 
 
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238 ENGLISH LEGAL INSTITUTIONS 
 
 was recognized in the conduct, not of a witness, but of the 
 jury who gave a false verdict, thus making themselves liable to 
 an attaint. In Archdeacon Hale's book there are, however, 
 some cases where the offence is perjury before arbitrators^. 
 
 The In 1840 the Church Discipline Act^ was passed which 
 
 Discipline completely changed the procedure in ' causes of correction.' 
 Act. The jurisdiction of the chancellor in the Consistory Court 
 
 was swept away, and the bishop was required to sit there 
 in person with his prescribed assessors, five in number, one 
 being his vicar-general, or an archdeacon or rural dean of 
 the diocese. But the action of this new tribunal was para- 
 lyzed by the power given to the bishop, of sending any case, 
 at any time before articles were filed, by Letters of Request 
 to the Court of Appeal of the Province, ' a power which has 
 been so generally exercised as to make it difficult to say 
 whether the tribunal has or has not been satisfactory.' 
 
 This act which restored the bishop's personal jurisdiction 
 over clerks who had offended against the laws of the church 
 or given rise to scandal, was agreeable to the Canon Law 
 which says that to the Bishop belong 'inquisitio correctio 
 punitio excessuum seu amotio a beneficio ^.' 
 
 ^ePublic In 1874 the Public Worship Regulation Act * was passed 
 Regula- giving an alternative procedure in case of offences against the 
 tion Act. ceremonial law of the church. It provided for hearing by 
 a 'judge,' appointed as below, of 'representations' of alleged 
 infringements of the ceremonial law. The 'representation' 
 must be made to the bishop by the archdeacon, a church- 
 warden, or three aggrieved parishioners, in the manner pre- 
 scribed in the Act. 
 
 If the bishop thinks that proceedings should be taken, he 
 
 1 Ixx. 5, 18. ^ a&i Vict. c. 86. 
 
 ' The Dean of Arches is not affected by the canon forbidding a 
 chancellor to pronounce sentence of deprivation without the presence 
 of a bishop. * 37 & 38 Vict. c. 85. 
 
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THE CLERK 239 
 
 invites the parties to submit to his direction without appeal, 
 and, on submission, deals with the matter himself. If they 
 decline he sends his representation on to the archbishop who 
 requires the 'judge,' who must be a barrister of ten years > 
 standing, or an ex-judge of the High Court, and a member 
 of the Church of England, to hear the case. The appointment 
 of this judge is vested in the two archbishops, his tenure 
 is during good behaviour, and he is judge of the Provincial 
 Courts of Canterbury and York. The same person shall 
 be ex officio Official Principal of the Arches Court of Canter- 
 bury, and of the Chancery Court of York^. From him 
 appeal lies to the Queen in Council. 
 
 This Act does not seem to have given any powers for 
 the repression of oiFences which were not comprehended in 
 those conferred by the Church Discipline Act, and 'there 
 is no reason to suppose that any saving of time and expense 
 is effected by the substitution of proceedings under the later 
 for those under the earlier Act.' 
 
 Under neither statute could any proceedings be taken The two 
 without the sanction of the bishop of the diocese : and both ■'^<'t^ '3om- 
 allowed him absolute discretion as to giving his sanction. 
 , Under the former Act he need not even hear the parties ^, 
 nor is he boimd to give any reasons for his cotu-se : under the 
 later Act if he refuses his sanction, he must state his reasons 
 in writing, deposit the statement in the diocesan registry and 
 send copies to the complainants and to the clerk complained 
 of. Under the former Act complaints may be made by any 
 one, under the later only by those who are by reason of 
 residence or official position directly affected. Under the 
 former Act, the judge could issue a monition and enforce it 
 by suspension, but not by deprivation ; under the latter, a 
 vacancy is made automatically on inhibition after monition, 
 should such inhibition remain in force for three years (no 
 
 ' 37 & 38 Vict. c. 85, § 7. " -Ea; parte Edwards, 9 Ch. App. 138. 
 
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240 ENGLISH LEGAL INSTITUTIONS 
 
 relaxation occurring till obedience is promised in writing), 
 or should a second inhibition be issued on the same monition 
 within three years of relaxation. 
 The In 1892 a further change was made by the Clergy Disci- 
 
 Discipline pline Act ^ which provided that if a clergyman be convicted 
 Actjl892. of treason, felony, misdemeanour on indictment, or be sen- 
 tenced to hard labour or any greater punishment, or has 
 a bastardy order made against him, or is found in a divorce 
 or matrimonial cause to have committed adultery, or has 
 an order for judicial separation, or a separation under the 
 Matrimonial Causes Act, 1878, made against him, then within 
 twenty-one days of a conclusive finding, the bishop shall 
 declare the preferment empty, and the clergyman becomes 
 incapable of holding preferment unless he obtains a free 
 pardon. If the bishop will not act, the archbishop shall. 
 
 Complaints against clergymen for immorality shall be 
 heard in the Consistory Court before the chancellor of the 
 diocese and, if either party desire, five assessors. The chan- 
 cellor determines questions of law, questions of fact are found 
 by the unanimous decision of the assessors chosen in the way 
 prescribed in the Act, or by the chancellor and at least 
 a majority of the assessors. 
 
 The bishop may, if he think the charges too vague and 
 frivolous, disallow the prosecution. 
 
 The prosecutor may be any parishioner, the bishop, or any 
 person appointed by the bishop. 
 
 Appeal at the option of the appellant may be to the 
 Provincial Court or to the Queen in Council, but if to the 
 Provincial Court its decision is final. 
 
 On conviction the clergyman may be deprived or suspended, 
 and if the preferment becomes vacant he may be deposed by 
 the bishop from holy orders. 
 
 ' 55 & 66 Vict. c. 32. 
 
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THE CLERK 241 
 
 Questions of doctrine and ritual are excluded from the 
 purview of the Act, but with respect to any proceedings 
 instituted for an oifence for which a clergyman can be prose- 
 cuted under the Act, the Church Discipline Act of 1840 is 
 repealed, saving certain sections which are re-enacted, under 
 which inter aJia the bishop can pronounce sentence by consent 
 \vithout further proceedings, and is empowered to inhibit 
 the party accused from performing the services of the church 
 pending the investigation. 
 
 By the Benefices Act, 1898 1, the bishop may refuse to TheBene- 
 institute or admit a presentee to a benefice, on the ground ,0?! '^ ' 
 amongst others, that he is unfit by reason of physical or 
 mental infirmity, serious pecuniary embarrassment, grave 
 misconduct or neglect of duty in an ecclesiastical office, 
 evil life, or having by his conduct caused grave scandal 
 concerning his moral character, since his ordination. From 
 his refusal, appeal lies to the archbishop of the province 
 sitting with a judge of the Supreme Court, nominated by 
 the Lord Chancellor from time to time, for the purposes of 
 the Act. The judge shall decide all questions of law, and 
 find as to any fact alleged as reason of unfitness or dis- 
 qualification, and his decision thereon shall be binding on 
 the archbishop, who shall thereupon, 
 
 (1) if the judge finds that no such fact sufficient in law 
 exists, direct institution or admission, or, 
 
 (2) if the judge finds that any such fact sufficient in law 
 exists, decide if necessary, whether by reason thereof the 
 presentee is unfit for the discharge of the duties of the 
 benefice, and determine whether institution or admission 
 ought under the circumstances to be refused. 
 
 And in either case the archbishop shall give judgement 
 accordingly, and that judgement shall be final. 
 
 1 61 & 62 Vict. c. 48. 
 
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CHAPTER XXV 
 
 THE CLERK (continued) 
 
 Thecrimi- It was said in a previous chapter that on the severance 
 clerk °^ *^^ ^^^^^ ^^^ spiritual jurisdictions the Church claimed 
 
 the right to try aU cases in which a ' clerk ' was accused. 
 Although this expression is wide, clerici rettati et accusati 
 de quacunque re ^, the claim, in fact, was only pressed with 
 regard to ' felonies,' as the King reserved cases of high treason ^, 
 while of smaller offences, ' misdemeanoiu:s,' the Church took 
 no account, perhaps because they did not involve the conse- 
 quences on conviction of death, mutilation, or escheat ^. 
 
 This claim, which for a time was successfully made, produced 
 some remarkable consequences in the sphere of the Enghsh 
 Criminal Law. 
 
 It may be useful here to make two statements which I 
 think are accurate. Down to the year 1826 * treason and 
 all felonies, except petty larceny and mayhem, were punish- 
 able with death. All felonies, except insidiatio viarum et 
 depopulatio agrorwm ^, were ' clergyable ' unless taken out of 
 the benefit by statute. 
 
 ' Constitutions of Clarendon, c. 3. 
 
 2 Halej ii. 360 ; and cf. 25 Ed. Ill, stt 3 de clew. 
 
 ^ This exemption of ecclesiastics from the secular jurisdiction did 
 not originate in William's ordinance. It had been long the practice 
 for men in orders when accused to clear themselves in a way not 
 available for laymen, e. g. the corsnaed was reserved for them : and if 
 they went to compurgation they had fellow priests for compurgators. 
 
 * 7 & 8 Geo. IV, c. 26. ^ Hale, ii. 333. 
 
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THE CLERK 
 
 The story of ' benefit of clergy ' is not easy to tell, for The 
 the authorities are rather difficult to understand. But it practice, 
 seems hardly possible to doubt that the construction placed 
 by Professor Maitland ''■ on the famous third chapter of the 
 Constitutions of Clarendon is correct. The accused clerk is 
 to be summoned to the King's Court, thence he is sent to the 
 Ecclesiastical Court, which, if he is convicted, will degrade 
 him. He is then no longer a clerk, and he will be tried and 
 punished in the King's Coiul; as a layman. An official of the 
 royal court will attend the Ecclesiastical Court to see that 
 he does not escape. This view, which seems agreeable to 
 the Canon Law, was opposed by Becket on the ground that 
 by this procedure the man was punished twice over, which 
 was unjust, ' nee enim Deus iudicat bis in idipsum ^.' 
 
 The view of Becket, whatever we may think of it, would Its modi- 
 seem to have prevailed after his death. 
 
 According to Bracton ^, ' when a clerk of whatever order or 
 dignity is taken for the death of a man or any other crime 
 and imprisoned, and an application is made for him in the 
 Court Christian by the ordinary ' the prisoner must be imme- 
 diately given up without any inquisition being taken. He 
 must be kept in prison till he has duly purged himself, and 
 if he fails to do so he shall be degraded. 
 
 Bracton lays it down that even in murder the king's 
 justices could not try clerks till degraded, and as the King's 
 Court could not degrade them, they must be handed over to 
 the bishop. Degradation, he proceeds, is sufficient punish- 
 ment, quae est magna capitis derrmmtio; but in a case of 
 apostasy, he says a man was degraded and statim fuit igni 
 
 ^ Canon Law in the Ghurch of England, pp. 132 sq. 
 
 '^ Some ecclesiastics had been accused of various offences, including 
 rape and murder. A canon had spoken ill of the king's Justiciary. 
 They had been found guilty in the Court Christian, but the king 
 thought this penalty inadequate, and desired a secular punishment. 
 
 « Bracton, De Cor., II, c. ix. p. 298. 
 
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244 ENGLISH LEGAL INSTITUTIONS 
 
 traditus per manum laicalem'^. But no doubt this was in 
 consideration of the more heinous character of the offence. 
 
 Canonical purgation proceeded as follows : the prisoner was 
 tried before the bishop or his deputy and a jury of twelve 
 clerks. The prisoner first swore to his innocence, and twelve 
 compurgators swore that they believed him ; the evidence on 
 oath was taken but cmly on behalf of the prisoner, the ]vxy of 
 clerks found their verdict on oath, and the prisoner was 
 usually honourably acquitted. Should it happen that he was 
 convicted, he might be degraded, or put to penance, whipped, 
 or imprisoned, but the Church could not pronounce a sentence 
 of blood. 
 
 The practice in cases of this nature underwent considerable 
 change, but in the second stage of development it seems that 
 if a clerk committed a murder, the sheriff arrested him. If 
 his bishop desired he could demand him, in which case he was 
 bound to keep him in custody, and to produce him sub poena 
 centwm librarum before the justices in eyre, when they next 
 came. In the thirteenth century, the clergy complained that 
 this practice kept them years in prison. When the justices 
 at length come, the prisoner is produced and declines to 
 answer, saying that he is a clerk, and the bishop's official 
 demands him. He is handed over, and the justices have no 
 further concern with him. 
 
 Secular But late in Henry Ill's reign, and certainly early in 
 
 ference. Edward I's, the practice has changed. Sir Edward Coke 
 attributed the change to a construction placed upon the 
 Statute of Westminster I, c. 2, but the statute says nothing 
 expressly on the subject, and perhaps it was appealed to, in 
 order to confirm an existing practice. Whatever the authority 
 
 ^ This was the case of an unfortunate deacon ' qui se apostatavit pro 
 quadam ludaea.' This was no douht an aggravating circumstance, for 
 Fleta, i. c. 35, regards connexion with a Jew or a Jewess as partaking of 
 the nature of bestiality. That sort of person is to be buried alive. 
 
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THE CLERK 245 
 
 W£is, the principle was now recognized, that the truth of the 
 charge ought to be investigated by the country and not by 
 a partial tribunal. Accordingly the twelve jurors and the 
 four townships were summoned to say in what character 
 (qualis) the prisoner was handed over to his bishop, i.e. guilty 
 or not guilty. This process is not Trial in the proper sense 
 of the word, for the prisoner was not called on to plead. It 
 is an inquisition ex officio. And according to Hale ^ an in- 
 quisition might be taken on the question whether he was 
 a derk or no. The inquisition was taken after indictment, 
 that being the moment at which the bishop's claim was 
 usually made. If the inquisition pronounced him guilty, he 
 was handed over to the bishop, but his goods and chattels 
 were forfeited, and his lands seized into the hand of the king 
 tiU the result of the trial in the Bishop's Court. 
 
 This method was, or was alleged to be, a great disadvantage 
 to the prisoner, for in an inquisition ex officio he was unable 
 to challenge the jury, and besides, he might possibly be 
 acquitted of the felony if he put himself on the jury de 
 bono et malo, and took his chance. 
 
 Accordingly in Henry VI's reign, on the ground that it was 
 better for the prisoner to claim his clergy after conviction, he 
 was usually directed to plead to the felony, and put himself on 
 the country. He could thus challenge the jury, have a chance 
 of acquittal, and if foimd guilty then claim his clergy. 
 
 If the clerk cleared himself in the Bishop's Court, he had 
 restitution of his lands, of which the king in the meantime 
 had been taking the profits. But with regard to his goods, 
 a difference was made. If the prisoner claimed and got his 
 clergy on arraignment, that is before conviction, as was the 
 old practice, then if he made his purgation, he had a writ to 
 the sheriff to restore his goods. If, however, he pleaded to the 
 felony, which w£is the new practice, and stood his trial before 
 
 ' Hale, P. C. ii. 377 sq. 
 
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246 ENGLISH LEGAL INSTITUTIONS 
 
 the justices, and was convicted, his goods were forfeited 
 irretrievably. The new practice inaugurated in tenderness 
 for the prisoner's interests, undoubtedly benefited the royal 
 revenue. 
 
 The jusjtices, moreover, had a discretion ; they could hand 
 the convicted clerk over absqtie purgatione, which meant that 
 he was not to be allowed to make his purgation, but was 
 imprisoned in the bishop's prison for life. In that case the 
 king not only had his goods but the profits of his lands 
 during his life. 
 
 Extension The privilege was originally confined to those persons who 
 lege.' ' ^^ ' habitum et tonsuram clericalem,' but by the statute De 
 clero ^ clerks, secular and religious, convicted before the secular 
 justices of treason or felony touching other persons than the 
 Tcmg or his royal majesty, were allowed the benefit. The 
 expression 'secular clerk' included doorkeepers, readers, 
 exorcists, and subdeacons, and then the courts gradually 
 extended the rule to all who could read, although in the 
 reign of Edward II we find that one Shardelowe, subsequently 
 a judge, said 'literatura non facit clericum nisi habet 
 sacram tonsuram^.' But by the time of Edward IV the 
 coMit gave clergy, if the case was clergyable, even though 
 the prisoner had no tonsure, if he could read, and though 
 the ordinary refused him *. This oiRcial seems to have sat 
 regularly in coiut, and to have claimed his men ' of course ' ; 
 he was, at first, the only judge of their competency when 
 the reading test was introduced, but the court soon took the 
 view that the ordinary was but the minister of the court, 
 and if he happened to be absent, the court could give the 
 prisoner his book and hear the man read, even though the 
 ordinary had made a return non legit. It appears, though 
 this point is rather obscure, that if a prisoner claimed his 
 
 ' 25 Ed. Ill, St. 3. * 26 Ass. 19 ; 20 Ed. II. 
 
 ' Y.B. 9Ed. IV, 28 b. 
 
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THE CLERK 247 
 
 clergy on arraignment and read, he went to prison, even if 
 the ordinary did not claim him, but if he put himself on the 
 country de bono et mah, and if after conviction the ordinary 
 would not claim him, he was hanged^. Women were ex- 
 cluded from the benefit till 4 W. & M. c. 9 : so also was the 
 ' bigamus,' that is, ' one who hath married two wives or one 
 widow.' He was relieved from his unfortunate position by 
 1 Ed. VI. c. 12. 
 
 Henry VII took the benefit away from certain offences. Change in 
 The distinction now becomes one between offences and not ^ ^^^ ^^' 
 between offenders, and the list was further curtailed by 
 Hemy VIII. 
 
 The reading test** which once sifted out the clerks now let The read- 
 in the layman. The practice was for the court to refer the ^^^ ^ ' 
 prisoner to the ordinary, who certified whether he could read, 
 and if he could, he had the benefit. 
 
 In 1487 by 4 Hen. VII, c. 13, every one convicted of a 
 clergyable felony shall be branded on the brawn of the thumb 
 with M if it is murder, with T if it is theft. If any claimed 
 clergy a second time, he should be denied, if not actually in 
 orders, or if he could not produce his letters of ordination or 
 a certificate from the ordinary. 
 
 By 18 Eliz. c. 7 it was enacted that persons admitted to 
 their clergy shall not be delivered to the ordinary (purgation 
 having in the meantime been abolished), but after clergy 
 allowed and burning in the hand shall be set at liberty; but 
 the justice may, as further correction, imprison them for 
 a period not exceeding one year. The burning was to inform 
 the judge whether the prisoner had had his clergy before. 
 
 ' 12 Ass. IS, 39 ; 27 id. 42. 
 
 ^ It became usual at some period to test a prisoner's clerkly powers 
 by giving him Ps. LI, v. 1, to read and translate. A prudent and 
 unlettered felon might establish his claim to benefit of clergy, by 
 showing a parrot's knowledge of this so-called ' neck ' verse. 
 
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248 ENGLISH LEGAL INSTITUTIONS 
 
 We have (preserved in Mr. Baildon's book) a charge delivered 
 June 3, 1595, in camera stellata by the Lord Keeper to the 
 * Justices of the Peace living in or near London, ' devised by 
 the Queen herself,' which states inter alia that benefit of clergy 
 is not to be allowed more than once, nor in case where it is 
 not allowable by law, ' for it is no pietye but wicked pitye.' 
 By 5 Anne, c. 6 the necessity for reading was abolished. 
 
 By 4 Geo. I, c. 11 larcenies might be punished with seven 
 years' transportation instead of branding. 
 
 By 19 Geo. Ill, c. 74 branding was practically though not 
 expressly abolished. 
 Abolition. By 7 & 8 Geo. IV, c. 28 benefit of clergy was abolished. 
 So that, to quote Mr. Justice Stephen, at the beginning of the 
 eighteenth century the position was : — 
 
 All felonies were either clergyable or not. 
 
 Every one charged with a clergyable felony could have 
 benefit of clergy for the first ofience, and clerks in orders had 
 it for any number of offences. 
 
 The benefit gave immunity from capital punishment, but 
 till 1779 the prisoner was branded, and sentenced besides 
 to one year's imprisonment, or in a larceny to transportation 
 for seven years. 
 
 The number of felonies at common law was small, and all 
 with the exception of petty larceny (i. e. of goods value less 
 than 12<i.) and mayhem were punished with death. 
 
 So till 1487 any one who could read might commit any 
 number of murders without any other penalty than that of 
 being delivered to the ordinary to make purgation, unless he 
 was delivered absque pii/rgatione. 
 
 After 1487 any one who could read could commit murder 
 once without any punishment except branding, and if a clerk 
 in orders he could till 1547 commit any number of them 
 without being branded more than once. 
 
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THE CLERK 249 
 
 Connected with benefit of clergy was the law of Sanctuary. Sanc- 
 Every consecrated church was sanctuary. The malefactor *'^^'^y- 
 who took refuge there could not be extracted, but it was 
 the duty of the four neighbouring towns to beset the holy 
 place and send for the coroner. He came, parleyed, and gave 
 the criminal the choice of standing his trial or confessing 
 and abjuring the realm. If he chose the latter he hastened 
 in pilgrim's dress to the port assigned, and left imder oath 
 never to return. His lands escheated and his goods were 
 forfeited. If he would do neither, the legal view was that 
 he might after forty days be starved into submission ^. 
 
 Abjuration became obsolete, but various places came to be 
 privileged and 'sanctuary men' were allowed to live there 
 even under statutory regulations^. 
 
 Sanctuary was abolished by 21 Jac. I, c. 28, but in defiance 
 of the law lingered on for another century, and was a pro- 
 tection at any rate against the execution of civil process : for 
 there is an Act 8 & 9 Will. Ill, c. 27, making it penal in 
 sheriffs not to execute their writs in 'pretended privileged 
 places' such as Whitefriars and the Savoy ^. 
 
 ^ Pollock and Maitland, ii. 590. There is a picturesque case in Rot. 
 Cur. Reg. i. 69j 95, where William Fitz Osbert, who was a troublesome 
 character, had behaved very badly to his brother Robert, and, in the 
 absence of Richard I, posed as a patriot leader in the City of London. 
 On being deserted by his followers, he fled to the church of St. Mary 
 le Bow, and went up the tower. The Justiciar, who, unfortunately for 
 William, was archbishop, had no scruples, disregarded the sanctuary, 
 ordered the tower to be set on fire, smoked William out, caught him, 
 had him tried by the Proceres, dragged him to Tyburn, and hanged 
 him. But this conduct was considered unseemly even in an arch- 
 bishop, and led to his retirement. 
 
 2 See 27 Hen. VIII, c. 19 ; 32 Hen. VIII, c. 12. 
 
 = Stephen, H.O.L. i. 491 sq. 
 
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CHAPTER XXVI 
 
 THE EARLY HISTORY OF THE LAW 
 MERCHANT 
 
 The materials necessary for a fiill account of the legal 
 position of the merchant are unfortunately scanty. He 
 did not much resort to the King's Courts, and the local 
 records such as those of the Piepoudre Court of Bristol, 
 the great western port of the kingdom, have most unfor- 
 tunately been lost or destroyed. 
 
 Early And yet by piecing together fragments of evidence col- 
 
 tile Law lected here and there, we can arrive at an opinion to the 
 was Inter- effect that there was a definite body of mercantile law, 
 slightly affected perhaps by local variations, which was re- 
 cognized in this country and in the ports of Europe, and 
 that it was administered there and here in Coiuts of similar 
 character supported by the royal authority. It was really 
 Law, and it was really International. The history of the law 
 merchant in this country can shortly be stated. It was from 
 the first administered in local and popular Courts of Tnerca- 
 tores et marmarii^, and was intimately connected with the 
 King in Council. There is statutory recognition of this 
 connexion in the Statute of the Staple ^. The Court of 
 Admiralty after a struggle usurped the jurisdiction, the 
 common law Courts in tiu-n destroyed the Admiralty jinris- 
 diction by repeated prohibitions, while the merchants, dis- 
 satisfied with the illiberal pohcy of the common lawyers, 
 
 ' Cf. the case of the ship of Placentia (Cor. Reg. Trin. 18 Ed. II, 
 rot. 18). 2 27 Ed. Ill, st. 2, c. 21. 
 
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EARLY HISTORY OF THE LAW MERCHANT 251 
 
 might have resorted to the Courts of Chancery whose doc- 
 trines and practice were very similar to their own, had not 
 Lord Mansfield appeared to create the mercantile law of this 
 country. 
 
 The nature of the law merchant has been stated by the 
 most eminent authorities. liOrd Mansfield said 'the mari- 
 time law is not the law of a particular country but the 
 general law of nations V and ' the law of merchants and the 
 law of the land is the same ^.' And other judges used similar 
 language '. 
 
 The hx mercatoria interested two kinds of people, the mer- 
 catores and the marmarii. 'As the roundness of the globe 
 of the world,' says Malynes, ' is compounded of the Waters 
 and the Earth, so this work of the Law Merchant cannot be 
 compleat without the Sea Lawes *.' As to what the sea laws 
 were, there is I think no shadow of doubt. Amongst the 
 collections of Dooms, and the Custumaries of maritime law, 
 
 ' Luke V. Lyde, 2 Burr. 887. 
 
 ^ PiUans v. Van Mierop, 3 Burr. 1669. 
 
 ' ' This custom of merchants is the general law of the kingdom, part 
 of the common law, and therefore ought not to have been left to a 
 jury after it had been already settled by judicial determination ' (per 
 Foster J., Edie v. E. I. O., 2 Burr. 1226). ' The custom of merchants 
 is part of the common law of this kingdom of which the judges ought 
 to take notice, and if any doubt arise to them about their custom they 
 may send for the merchants to know their custom, as they may send 
 for the civilians to know their law ' (per Hobart C. J. , Vanheath v. Turner, 
 Winch. 24). ' The law of merchants is ivs gentium, and the judges are 
 bound to take notice of it' {Mogadara v. Holt, Show. 318). ' We take 
 notice of the laws of merchants that are general, but not of those that 
 are particular usages' (per Holt C. J., Lethulier's case, 1 Salk. 443). 
 ' When the custom has been judicially ascertained and established it 
 becomes part of the Law Merchant which the courts are bound to 
 know and recognize ' (per Lord Campbell, Brandao v. Burnett, 12 CI. 
 & F. 787). ' A system of equity, founded on the rules of equity, and 
 governed in all its parts by plain justice and good faith ' (per Buller J., 
 Master v. Miller, Smith's L. C. i. 856). 
 
 * Lex Mercat. 87. 
 
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252 ENGLISH LEGAL INSTITUTIONS 
 
 indeed the basis of many of them, the so-called laws of 
 Oleron stand pre-eminent. 
 
 The Laws On the continent of Europe we find a French Ordinance 
 of Oleron, ^f Charles V (1364) ^ admitting the CastiUans to trade in 
 Normandy, ' selon les Coustumes de la Mer et les droiz de 
 Layron dehors,' and in the Ordinance of the same king on 
 the rights and pre-eminences of the Admiral of France we 
 have ' ledit Admiral doibt administrer justice a tous marchans 
 sur la mer selon les droitz, jugemens coustumes et usaiges 
 d'Olleron ^.' There is besides a tradition in a MS. in the 
 Royal Library in the Escorial, that the rolls of Oleron were 
 adopted in Castille by Alphonso X in the thirteenth century 
 as positive law in suits between merchants and mariners, and 
 that the laws in the fifth Partida of that body of Castilian 
 law known as the Siete Partidas were framed in accordance 
 with the rolls ^. 
 
 There is sufficient evidence of the authority of those judge- 
 ments in this country. In the archives of the city of London 
 there are two MSS., one called the Liber Horn, the other 
 the Liber Memorandorum. The Liber Horn is attributed to 
 Andrew Horn, who was City Chamberlain during the reign 
 of Edward II, and died in 1328. It contains a copy of the 
 laws of Oleron. The Liber Memorandorum of the Corpora- 
 tion contains various ordinances and charters, none later 
 than 15 Edward II, and in the middle, preceding some 
 charters of William the Conqueror, which are there stated 
 to have been copied in 1314, is another copy of the laws. 
 In the records of Bristol, the great port of the West of 
 England, there is another copy dating from the fourteenth 
 century. From these facts we may draw the inference that 
 the copies were kept for the purposes of reference and use. 
 But we need not be contented with inference. 
 
 ' Bl. Bk. of Admiralty (Rolls Series), i. Ixiv. n. 
 
 2 Ibid., i. 448. ' Ibid., i. Ixvii. 
 
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EARLY HISTORY OF THE LAW MERCHANT 253 
 
 There is extant a judgement of the mayor and baihffs of 
 Bristol, that the master of a ship is liable for loss of cargo 
 by the theft of the crew, and certified by them to the Chan- 
 cellor as based on the lex et consii£tvdo de Oleron. This case, 
 PUk V. Venore, was originally tried ' in plena curia coram 
 maiore et ballivis et aliis probis hominibus villae et magi- 
 stris et marinariis,' and both plaintiff and defendant pleaded 
 the lex de Oleron, saying, ' talis est ^.' 
 
 The inquisition taken at Queenborough by command of 
 Edward III, in the forty-ninth year of his reign, directed, 
 amongst other things, inquiry to be made ' about all mari- 
 ners who lay violent hands upon or beat their masters 
 against the laws of the sea and the judgement of Oleron 
 made thereon,' and also 'concerning all mariners who are 
 rebellious against the honest commands of their masters, 
 and of masters who do not keep their mariners quiet at 
 table or elsewhere as the judgements of Oleron do require ^.' 
 
 In a fifteenth-century case heard in the Coiurt of Ad- 
 miralty, a master of a ship was tried for cruelty to a seaman 
 according to the law of Oleron ^. And in 1402, in the 
 fourth year of Henry IV, Parliament petitioned ' Que les 
 Admirals usent leur leies tant solement per la ley de Oleron 
 et anxiens leyes de la mere et per la ley d'Engleterre et nemy 
 per custume *.' 
 
 We know what the judgements of Oleron contained. They Their 
 are judgements as to the power of the master to engage part Matter. 
 of the ship's furniture, and to sell merchant's goods to raise 
 funds for necessary expenses, his duties to all concerned in 
 case of wreck, his treatment of sick mariners, his duty to 
 jettison, accidental collisions in a roadstead and anchorage 
 
 ^ Transcribed by Prynne (Animad. 117) from the records in the 
 Tower. Brevia Regis, Tr. An. 24 Ed. Ill, nu. 44, Bristol. 
 ' Bl. Bk. of Admiralty, i. 161. 
 = Ibid., i. 255. * -Roi. Pari. 3. 498. 
 
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254 ENGLISH LEGAL INSTITUTIONS 
 
 therein, wages and perquisites of mariners, claims against the 
 merchant for not providing, and against the master for not 
 taking cargo, the time when freight is payable, the master's 
 lien for freight, what is liable to contribute to a jettison, and 
 the liability of pilots. 
 
 There is one instance in which a successful appeal was 
 made to the Crown against the rule of the judgements. In 
 1285 Edward I gave judgement^ on a complaint by the 
 barons of the Cinque Ports, that the merchants of Gascony, 
 England, Wales, and Ireland were compelling the English 
 shipowners to contribute for jettison on vessel, apparel, and 
 stores. Edward directed that only merchandise should con- 
 tribute, thus overruling the judgements of Oleron ^ and the 
 Roman law rule, and his judgement was apparently after- 
 wards followed in the Mayor's Court at Oleron ^. 
 
 No code of the rest of the lex mercatoria is extant, but some 
 of its features are known, and it is hardly possible to doubt that 
 it was a definite body of customary law recognized here and 
 on the continent. Not only do enactments like the Statute 
 of the Staple * and the Carta Mercatoria ^ speak of it as an 
 entity distinct and intelligible, but what we know of the 
 character of the tribunals who administered it supplies an 
 irresistible argument. These tribunals were lay and not pro- 
 fessional, they were not national, for they might be mixed. 
 The men who formed part of a market Court at Antwerp 
 might in six months be doing the same thing at St. Ives. 
 This is beyond question, for the Carta Mercatoria provides 
 that in all cases except capital a foreign merchant is to have 
 if possible a medietas de eisdem mercatoribus, and the Statute 
 of the Staple directs not only that where two strangers are 
 
 1 Munim. Gild. (Rolls Series), i. 490. Rymer, Foed. a. d. 1286. 
 
 ^ Bl. Bk. of Admiralty, i. 97, Art. 8. 
 
 ' Ibid., ii. xxxiii. Ibid., 395. Coutumier of Oleron, c. xciv. 
 
 ♦ 27 Ed. Ill, St. 2. 
 
 " 31 Ed. I. Munim. Gild. ii. 205. 
 
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EAHLY HISTORY OF THE LAW MERCHANT 255 
 
 parties the inquest is to be made up of strangers, and if one 
 stranger then a jury de medietate, but that in every staple ^ 
 there shall be a mayor having knowledge of the law mer- 
 chant elected by strangers as well as denizens, two 'con- 
 veniable ' constables chosen by the merchants, and two mer- 
 chant aliens to be associated to the mayor and constables to 
 hear the plaints of merchant aliens. The international cha- 
 racter of the tribunal makes it certain that the law adminis- 
 tered was international too. This is a very interesting entry 
 illustrating this point in the Manorial Pleas published by the 
 Selden Society^, viz. a summons to all the merchants of as 
 many communities as there were present at the fair of 
 St. Ives, A.D. 1275 ^, to present themselves on the morrow 
 coram seneschallo to consider and see that four merchants 
 have justice and equity, inasmuch as their servant had been 
 caught measuring canvas with a false ell and selling it. Of 
 these communitates^ certainly one came from Ypres. It is 
 alleged also ^ that King Amauri I, who succeeded his brother 
 Baldwin as King of Jerusalem in 1162, established a special 
 Court of the Sea, and also a mercantile Court, la Cort de la 
 fonde, consisting of a royal bailiff and a mixed jury of four 
 
 ^ The staple towns were Newcastle, Lincoln, York, Norwich, West- 
 minster, Canterbury, Chichester, Winchester, Exeter, Bristol, Car- 
 marthen, Devylen, Waterford, Cork, and Drogheda (27 Ed. Ill, 
 St. 2). 
 
 ' Select Pleas in Manorial Courts, i. 153. 
 
 ' This fair belonged to the Abbot of St. Ives, and the Court was pre- 
 sided over by his steward, but the merchants were the pares curiae. 
 
 * A communitas was an association in which every individual guaran- 
 teed the trade debts of every other, ' his peer parcener and commoner.' 
 See the remarkable case at the same fair (Manor. Pleas, i. 162), where 
 the plaintiff, B. of Bordeaux, complains of O. and B. of Norwich, the 
 pares participes et communares of R. and John his son, that the said 
 G. D. R. and J. unjustly deforce him of £8 which they ought to pay 
 ' eidem B. vel cuicunque de suis scriptum obligatorium inter ipsos 
 confectum portanti ' on Midsummer Day, 1274, for wines sold by B. to 
 R. and J. at the fair at Boston on Friday before St. James' Day, 1273. 
 
 ° Bl. Bk. of Admiralty, iv. xvi. 
 
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256 ENGLISH LEGAL INSTITUTIONS 
 
 Syrians and two Franks. It is not unreasonable to believe 
 that, wherever the Court was held, the law administered was 
 the same. The same people met each other in succession at 
 the great fairs, where the same questions must have con- 
 stantly arisen, and it is incredible that they would have 
 administered a system in which their rights varied with the 
 locality, they themselves being both litigants and judges. 
 Owing to the exigencies of trade, merchants, of all men, re- 
 quire that the law should be known with precision. To the 
 great fairs such as those at Lyons, Besan^on, Antwerp, Win- 
 chester, Stourbridge, and St. Ives, merchants came from 
 afar^- The Courts were 'popular,' judgement being given 
 by those who knew the customs, whether they were prud- 
 hommes at Oleron or Barcelona \ or mercatores et marinarii 
 sitting on Bristol quay ^, or merchants in a Court of Pie- 
 poudre. ' Popularity ' is however not peculiar to mercantile 
 Courts, but was common to aU early local Courts, such as the 
 Manorial Court and the SherifTs Court in this country. 
 
 The The name Piepoudre was frequently given to those Courts 
 
 Court^ '® which were attached to fairs 'to determine the plaints of 
 
 persons passing through who cannot make any stay there, 
 
 such persons, that is to say, as are called pepoudrous ''.'' 
 
 These Courts were of record, and if the fair was a franchise 
 
 ^ We may notice the regulations of the ' Feste de Pui,' a society of 
 foreign merchants, ' that mirthfulness, peace, uprightness, gaiety, and 
 good love may be maintained,' in which we find ' e pur ceo qe la feste 
 du Pui est mut honore par la venue des compaignons, e tuit lui pluis 
 de la compaignie sont marchantz hauntaunz les feires,' so that they 
 cannot come to London on the fixed day of the great feast, ' le quel 
 jour ceo est duraunt la feire de Sainte Ive et autres feires,' the day is 
 to be altered {Munim. Gild., ii. 228). 
 
 '^ In The Ordinance of Maritime Police, published by James I of 
 Arragon (1258), the Corporation of the Prudhommes of the Strand 
 at Barcelona is spoken of as a council of administration in maritime 
 matters of co-ordinate authority with the king himself (Bl. Bk. of 
 Admiralty, ii. Ixvii). 
 
 ' Bl. Bk. of Admiralty, i. 378. ■* Liber Albus, ed. Riley, 59. 
 
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EARLY HISTORY OF THE LAW MERCHANT 257 
 
 of some lord the Court was held before the lord's steward ^. 
 If not a franchise fair, the Court, like other mercantile 
 courts, was held before a mayor and two coadjutors. In 
 a great city like London the mayor was probably elected by 
 the commimitas of London^, in the staple towns according 
 to the Statute of the Staple, the foreign merchants had 
 votes. So a Piepoudre Court could be held by special cus- 
 tom before the mayor and two citizens. The case of Good- 
 son V. Duffield^ was a proceeding in error on a judgement in 
 the Court of Pie Powder at Rochester, in which it was said 
 that these Courts are held in divers cities, as in Bristol and 
 Gloucester*. And here the record was 'Curia dom. regis 
 
 1 Y. B. 6 Ed. IV, 3 b. 
 
 " The terms ' mayor ' and ' communitas ' go together. Stubbs, Sel. 
 Ch., 308. 
 
 ' Cro. Jac. 313, 2 Bulst. 21, and cf. Howelv. Johns, Cro. Eliz. 773. 
 
 * I am indebted to the kindness of Mr. A. H. Wansey, of Bristol, 
 for the following information regarding the Tolzey and Piepoudre 
 Courts of Bristol, which still exist. A statement was drawn up in 
 J 789 by Mr. Arthur Palmer, Prothonotary of the Tolzey Court, to 
 the following effect : — ' The Tolzey Court is an old court of record by 
 prescription, dating by tradition from Saxon times, and sits every 
 Monday in the year. The hundred of Bristol was originally in the 
 honour of Gloucester (Madox, F. B. p. 17, Magn. Rot. 31 Hen. II). 
 The honour vested in the Crown temp. John, when Bristol Castle 
 became a royal residence. Among the royal officials was the seneschal, 
 who was judge of the palace court, with which the old court became 
 united, the seneschal being assisted by the bailiffs, and the court being 
 held at the Tolzey, where the king's tolls were collected. The first 
 sheriff of Bristol was appointed in 1373 by the charter (47 Ed. Ill), 
 which made Bristol a county ; a second sheriff was created by the 
 Bristol Charter (15 Hen. VII), which directed that the two bailiffs 
 should always be the two sheriffs. The seneschal or steward who pre- 
 sided in the Tolzey was thus a royal officer, the sheriffs sitting with 
 him as bailiffs of the hundred. In this court was the process of " foreign 
 attachment" of immemorial usage, to recover debts from foreigners 
 who do not come to England to be served. The " foreign attachment " 
 seizes their cargoes, ships, goods, and debts in Bristol, and enforces 
 payment, like the process in the Lord Mayor's Court in London. In 
 this court all actions of debt, assumpsit, trespass, trover, covenant, 
 and other civil actions to an unlimited amount are tried, where the 
 
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258 ENGLISH LEGAL INSTITUTIONS 
 
 pedis pulverisata («c) tent, apud civitat. RoiFens. coram 
 maiore et duobus concivibus secundum,' &c. There was 
 such a Court also at the fair of Stourbridge, which belonged 
 to the Corporation at Cambridge ^, and this was held before 
 the mayor and bailiffs of Cambridge. 
 
 The Gild In connexion with this popular or lay character of mer- 
 cantile justice we may notice the institution known as the 
 Gild Merchant, which seemingly was an association for the 
 purpose, amongst others, of mutual arbitration. Members 
 of the same gild were bound to bring their disputes before 
 
 cause of action arises within the city. The Court of Pie Poudre is 
 a branch of, or a continuation of, the Tolzey, and is held annually in 
 the open street, called the Old Market, before the steward and bailiffs, 
 or one of theln. It commences the day after the bailiffs are sworn, 
 which is the 29th Sept., unless the 30th is a Sunday. It sits for 
 fourteen clear days, during which the Tolzey at the Guildhall is sus- 
 pended. Proceedings there are as in the Tolzey, and are styled " In 
 the Tolzey Court, Bristol, held in the Old Market there." At the end 
 of the fourteen days everything is adjourned into the Tolzey. To this 
 day (1789) there is the Saxon practice of compurgators.' 
 
 According to the additional information kindly furnished by 
 Mr. Wansey, down to 1868 there were no rules regulating process in 
 these courts, whereas the Superior Courts of Westminster had the 
 C. L. P. Acts of 1852, 1854, 1860, and various orders and rules. In 
 1871 these courts were mainly brought under the C. L. P. Acts. By 
 6 & 6 Will. IV, c. 76, the Recorder of Bristol was made judge of these 
 courts. The records only go back to 1827. All kinds of actions may 
 be tried in them, provided they arise in the city, and there is no 
 appeal. No sittings are now held in the Old Market, but the court is 
 duly opened and adjourned into the Tolzey, but for the fourteen days 
 the style is as of old. In 1878 the Judicature Acts were applied to the 
 courts. 
 
 I have also to acknowledge the courtesy of Mr. L. Smeathman, the 
 Town Clerk of Hemel Hempstead, who tells me that there was till 
 1898, when the borough was reincorporated, a Piepoudre Court held 
 there once a year, though in his time the only work done was con- 
 nected with the management of the tolls, buildings, stallages, &c. It 
 was held before a bailiff and jury. Under the new charter the mayor 
 is styled ' mayor and bailiff.' I have not been able to inspect the 
 records. 
 
 ' Dyer, 182. 6, pi. 80. 
 
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EARLY HISTORY OF THE LAW MERCHANT 259 
 
 the gild before litigating the matter elsewhere. This function 
 of the gild merchant was recognized by the kings. The 
 great Gild of St. John of Beverley ^ of the Hans House held 
 charters from the Archbishops of York, with the royal Mcence 
 of Henry I, granting to the town and burgesses a gild mer- 
 chant and the right of holding pleas among themselves, 
 and this grant was confirmed by an inspeximus charter of 
 Richard H in 1379. The city of York ^ has a charter of 
 John, dated 1200, giving a gild merchant with the liberties 
 pertinent, and in 1581 the queen, in consideration of the 
 losses and decay of merchants, allows the merchants there to 
 elect a governor and eighteen assistants, with power, inter 
 alia, to try all suits among its members or between the latter 
 and others ^. 
 
 AVhat may have been the relations between the merchants 
 and the Crown under the Norman and early Plantagenet 
 kings we have at present no means of knowing, but judging 
 from the hardness of the task of consolidating the common 
 law, it may well be that this outlying portion was left to 
 itself for the time being. In any case Edward I made the 
 connexion firm. The foreign merchant was a person to be 
 considered and treated tenderly, for with him the king could 
 bargain directly as to customs without the intervention of 
 Parliament, and money was never too plentiful, and in return 
 the king gave him his support against the ' rings ' or ' trade 
 unions ' of the Enghsh merchants, and made himself the final 
 Court of Appeal. 
 
 For eight hundred years merchants have cried for speedy 
 justice. Mercantile men must be about their business, for 
 
 ^ English Gilds (Brentano), 150. 
 
 * The Gild Merchant (Gross)j ii. 279. 
 
 ' In a charter to the city of London (62 Hen. Ill) it is granted 
 to the citizens not to plead without the walls except (inter alia) to 
 pleas concerning merchandise, which are wont to be decided by Law 
 Merchant in the boroughs and fairs by four or five of the citizens there 
 present (Nortoi), Comm. 416). 
 
 s2 
 
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260 ENGLISH LEGAL INSTITUTIONS 
 
 trade will not wait. Once, the merchant was here to-day 
 and gone to-morrow ; now, he will sooner cut his loss than 
 have his case hung up indefinitely ; if he cannot get king's 
 justice he wiU go to arbitration. In a report drawn up in 
 the reign of Henry II on the ' customs ■" of Newcastle-on- 
 Tyne, as they existed temp. Henry I, the following sentence 
 appears : ' Inter burgensem et mercatorem si placitum oria- 
 tur, finiatur ante tertiam refluxionem maris,' which indicates 
 a mercantile court doing speedy justice ^. In the Doomsday 
 of Ipswich^, which is a recension of the old book of the 
 second year of John, and drawn up in the nineteenth year of 
 Edward I, it is stated that whereas pleas between persons 
 sitting and dwelling in the town should be pleaded ' by two 
 days in the week,' the merchant stranger was treated with 
 that greater consideration which seemingly was everywhere 
 shown to him : — 
 
 'The plees betwixe straunge folk that men clepeth 
 pypoudrous, shuldene ben pleted from day to day . . . 
 The plees in tyme of feyre betwixe straunge and passant 
 shuldene bene pleted from hour to hour . . . and the 
 plees yoven to the lawe maryne, that is to wite, for 
 straunge marynerys passaunt and for hem that abydene 
 not but her tyde, shuldene been pleted from tyde to 
 tyde.' 
 
 Among the questions put to the citizens of London on the 
 Iter held by Hubert de Burgh and his associates ^ and the 
 answers thereto *, we note the following : — 
 
 Q. 9. ' May the Bailiffs (these are afterwards called 
 Sheriffs) of the city determine the plaints of persons 
 passing through the city who cannot make any stay 
 there, such persons, that is to say, as are called pepou- 
 
 ' Stubbs, Sel. Oh. 112. So Bracton, 1. 6, f. 334 a ' Item propterea 
 qui celerem debent habere iustitiam, sicut sunt mercatores quibus 
 exhibetur iustitia pepoudrous.' ^ Bl. Bk. of Admiralty, ii. 23. 
 
 ' 6 Hen. III. ■" Uber Albus, 55. 
 
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EARLY HISTORY OF THE LAW MERCHANT 261 
 
 drous as to debts due or injuries done, or must they 
 await the sitting of the Hustings ? ' ^ 
 
 Ans. ' It is answered that of usage such pleas are not 
 holden out of the Court of the IJustings. But it is 
 further provided and agreed that in future the mayor 
 and sheriffs, assisted by two or three aldermen, shall 
 hear such plaints and that immediately from day 
 to day.' 
 
 In the Ordinances ^ which Edward I made when he took 
 into his hand the franchises of the city of London is the 
 following : — 
 
 'And whereas the king doth wiU that no foreign 
 merchant shall be delayed by a long series of pleadings, 
 the king doth command that the Warden or Sheriffs 
 shall hear daily the pleas of such foreigners as shall 
 wish to make plaint . . . and that speedy redress be 
 given unto them.' 
 
 Not only was the king doing his best to get the merchant 
 speedy justice, but he also invited him to regard the King in 
 Council as the ultimate fountain of justice. The Statute 
 of the Staple^ is an epitome of the royal policy in this 
 regard. The king's judges are not to take cognizance of 
 things touching the staple (§ 5). This is the province of 
 a lay tribunal elected by the merchants, who are to apply the 
 law merchant and not the common law (§ 21). Merchants 
 are to have right done them from day to day and from hour 
 to hour (§ 19). In case of doubt the matter is to be shown 
 to the Council, or if any merchant complains of want of 
 justice it shall be redressed by the Chancellor and Council 
 without delay (§ 21). 
 
 There are two celebrated cases which found their way to 
 
 ^ ' Et busting sedeat semel in tebdomada videlicet die Lunae.' Carta 
 Civ. Lond., Sel. Ch. 108 (temp. H. I). 
 
 2 Uber Albus, 257- " 27 Ed. Ill, st. 2. 
 
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262 ENGLISH LEGAL INSTITUTIONS 
 
 the king. The first was the case of Simon Dederit of Guynes ^ 
 
 (a foreigner, it will be noticed) which came from the great 
 
 fair at St. Ives on a point of mercantile law, and shows the 
 
 carefulness of the tribunal. This was an appeal to the 
 
 Dommus Rex at Westminster, 'et praedictus Simon dicit 
 
 quod lex mercatoria talis est in omnibus et singulis nundinis 
 
 per totum regnum. Paratus est verificare.'' His opponent 
 
 denies this, and the sheriffs of London, Lincoln, Winchester, 
 
 and Northampton are each directed to produce before the 
 
 king twelve good and lawful merchants to recognize, &c. 
 
 In the second case^ a merchant stranger complains before 
 
 the Chancellor and judges in the Star Chamber. He had 
 
 come into this country on a safe conduct, and his goods 
 
 had been stolen at Southampton. The Chancellor said 
 
 that such a person was entitled to sue here according to 
 
 The Law the law of nature in the Chancery, that is the law merchant. 
 
 Merchant ^hich is law universal throughout the world. 
 
 and the 
 
 Chancery. ' Cest suit est pris par un marchant alien que est 
 
 venus par safe conduit icy, et il n'est tenus de suer 
 
 selonques le ley del terre a tarier le trial de xii homes et 
 
 autres solempnities del ley de terre, mes doit suer icy 
 
 et sera determine solonques le ley de Nature en le 
 
 Chancery, viz. ley Merchant que est ley universal par 
 
 tout le monde ^.' 
 
 One cannot help being struck with the fact that the Chan- 
 cellor is here identifying the law of nations with the law of 
 
 1 8 Ed. II, cor. reg. Plac. in Dom. Cap. Westm. 321. 
 
 = Y. B., 13 Ed. IV, p. 9. 
 
 ' On which case Jenkins (Rep. 102) notes that if a merchant alien 
 has a controversy with an Englishman or another merchant alien^ 
 these controversies should be decided in the Chancery or the Star 
 Chamber, or before the King's Conncil, or at common law, according 
 to the law of nature and nations. Cf . a note to the same effect on 
 a case, 2 Ric. Ill, p. 12, where three Lombards sued in Chancery, 
 and the Chancellor called the judges into the Exchequer Chamber to 
 consult (Rep. 164-6). Cf also two cases mentioned in Sel. Pleas in the 
 Court of Admiralty, i. xlviii-ix (Selden Soc). 
 
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EARLY HISTORY OF THE LAW MERCHANT 263 
 
 nature, just as the Roman lawyers identified the ins gentium 
 with the ideal ius naturae. And here, we may surmise, lay 
 the bond between the Chancellor and the merchants. He, 
 like the praetor, considered what was aequumi et bonmn and 
 what was agreeable to the mores, or the usages of honest and 
 honourable people. One might go further and surmise that 
 the law merchant was in fact largely based on the Roman 
 law. Possibly the law merchant was the channel through 
 which the Roman law chiefly afiected our law. The four 
 consensual Roman contracts cover most of the field of mer- 
 cantile law. The contract of affreightment is covered by 
 D. 19. 2. 13, the doctrine of general average by D. 14. 2. 1, 
 and the contracts of bottomry and respondentia by D. 22. 2. 
 There is some corroboration of this view in the story told by 
 Malynes ^ of the fair at Frankfort, where a question of surety- 
 ship arose. The opinion of the merchants was demanded 
 thereon, ' wherein there was great diversity, so that the civil 
 law was to determine the same . . . according to the title de 
 mandato consUii.'' We may remember that the civil law was 
 recognized as proper in the Court of Admiralty '^. It is 
 almost certain, jfrom what Lord Blackburn* has said, that 
 the right of ' stoppage in transitu ' came through the Courts 
 of Equity, and that it is the same right as that revendication 
 which on the continent was the representative of rei vindi- 
 catio. We may give one or two particulars in which the 
 Chancellor and the merchant agreed as against the common 
 lawyei;. As Mr. Bigelow has' said in the introduction to his 
 book on Bills Notes and Cheques, in the foreign custom 
 
 ^ Lex Merc, p. 69. Malynes' date is 1622. Pandect law was the law 
 of Hanse towns ; Sohm, Inst. 6. 
 
 " Bridgeman's case. Hob. 11 (11 Jac), a case of bottomry and 
 borrowing of necessity. Even to-day, on a question of agency, the 
 Digest is referred to (Durant &;Co.v. Roberts and Keighley, &;c. [1900] 
 1 Q. B. 629, C. A.), though see the judgements of the House of Lords 
 reversing this decision, [1901] A. C. 240. 
 
 ' Blackburn, On Sale, p. 314 sq. 
 
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264. ENGLISH LEGAL INSTITUTIONS 
 
 The Law which the merchants brought into England there were two 
 
 Merchant . . 
 
 and the peculiar features which the Common Law regarded with aver- 
 
 Common gJon — negotiability and grace. Negotiability is the property 
 by virtue of which certain choses in action, that is under- 
 takings to pay, pass from hand to hand like cash on delivery. 
 The common law repudiated the notion that a promise of A 
 to B could be treated as a promise extending to C, a view 
 that was shared by the classical Roman law. Accordingly 
 down to the Judicature Act of 1873 if it was desired to 
 assign a chose in action, it had to be done with the assist- 
 ance of equity. So Malynes writes : — 
 
 ' And herein you are to note that in the buying by 
 BiUs it may be made payable to seller or to the bearer 
 thereof, and so all the parties are bearers thereof unto 
 whom the same is set over by tradition of it only, and 
 this is called a rescounter in payment used among mer- 
 chants beyond the seas . . . The common law of England 
 is directly against this course; for they say there can 
 be no alienation from one man to another of debts 
 because they are held choses in action i.' 
 
 As regards grace, the Common Law said that a man must 
 perform on the day he promised to perform, unless he had 
 the promisee's consent. The custom of merchants allowed 
 ' days of grace,' the number varying at different markets. 
 Three days was very usual, and in particular was the custom 
 of London I The Courts of Equity never regarded time as 
 necessarily of the essence of the contract, and this divergence 
 between the equitable and common law view is dealt with in 
 the Judicature Act. 
 
 Seal and Neither Chancellor nor merchant set any store on con- 
 considera- sj^eration or seal. There is no evidence that the doctrine 
 
 ' Lex Merc, p. 70. 
 
 ^ Coleman v. Sayer, 1 Bam. 303 (2 G. II), where the Common 
 Serjeant and the foreman of the jury spoke to the constant practice 
 of the City, and this was accepted by the C. J. 
 
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EARLY HISTORY OF THE LAW MERCHANT 265 
 
 of consideration came from Chancery ; the evidence is the 
 other way. In spite of the eiforts of Lord Mansfield, as will 
 be remembered, the Courts of Common Law forced on the 
 custom of merchants, which knew nothing of it, our purely 
 indigenous doctrine of consideration ^. This view need not 
 smprise us, if we remember that the civil law has very little 
 corresponding to our doctrine of consideration ; consent made 
 the contract ; it was dishonourable to break a promise once 
 made. It is worth noticing that the early writers of trea- 
 tises on the law merchant, Malynes (1622) and Marius (1670), 
 were not lawyers but merchants, and that Malynes regards 
 not so much what the law may say as what merchants will 
 say:— 
 
 'The credit of merchants is so delicate and tender 
 that, it must be cared for as the apple of a mans eie ' 
 (p. 76). ' The natm*e of a Bill of Exchange is so noble 
 and excelling all other dealings between merchants, that 
 the proceedings therein are extraordinary and singular, 
 and not subject to any prescription by law or otherwise, 
 but merely subsisting of a reverend custom used and 
 solemnized concerning the same ' (p. 261). ' Such is the 
 sincerity and Candor Animi amongst merchants of aU 
 nations beyond the seas in the observation of plain 
 dealing concerning the said Bills Obligatory^ that no 
 man dare presume to question his own hand ' (p. 74). 
 
 He adds that in the Eeist % and sometimes in the Low 
 Countries, they will put a seal to it, but this is not a uni- 
 versal requirement. So Sir John Davis, writing ' Concerning 
 Impositions,'' about the end of the seventeenth century, 
 says : — 
 
 ^ Pillans V. Van Mierop, 3 Burr. 1663. 
 
 '^ The Bill Obligatory was a promissory note, prefaced by an ac- 
 knowledgement of indebtedness. Cf. Leon Merc, p. 74. 
 
 ' Sir F. Pollock has been good enough to point out that the Eastern 
 seal is not a device but an engraved signature, though probably seldom 
 if ever autograph. 
 
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me ENGLISH LEGAL INSTITUTIONS 
 
 ' Whereas at Common Law no man's writing can be 
 pleaded against him as his act and deed unless the same 
 be sealed and delivered, in a suit between merchants, 
 BiUs of Lading and Bills of Exchange, being but tickets 
 without seals, letters of advice and credence, policies of 
 assurance, assignations of debt, all of which are of no 
 force at the Common Law, are of good credit and force 
 by the Law Merchant.' 
 
 There is one comparatively small point which we may 
 perhaps notice. By the 14 & 15 Vict. c. 99 the parties to 
 a civil action became for the first time competent witnesses. 
 The Court of Chancery never regarded this rule. The parties 
 before it were always competent and frequently compellable 
 witnesses. So, too, in a merchant suit. Malynes (p. 299) 
 mentions the practice of the Chancellors of issuing commis- 
 sions to Masters in Chancery or to merchants to report to 
 the Chancellor, whereon he issued decrees : 
 
 ' They may examine witnesses upon oath upon any- 
 thing in question where there wanteth proof, or they 
 may minister the oath to either party upon pregnant 
 occasions to bolt out the truth.' 
 
 And again at p. 92 : 
 
 'Therefore when merchants are contending in any 
 Courts of Equity or law where they are delayed for 
 many years in continual suit at their great charges, then 
 it tendeth to the interruption of trade and commerce in 
 general and the overthrow of parties in particular: 
 whereof the Law of Merchants hath a singular care to 
 provide for, and therefore doth many times (though not 
 without danger) admit the proof to be made upon the 
 parties oath, if witnesses be absent.' 
 
 The Bona Finally, in one very important matter the Chancellor and 
 chaser ^^' *^® merchant saw eye to eye. Both loved the Bona Fide Pur- 
 chaser. In his interest the common law rule of nemo dot quod 
 non habet was set aside. Neither got so far as to the maxim 
 
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EARLY HISTORY OF THE LAW MERCHANT 267 
 
 possession vaut titre, but an approach was made to it. Pos- 
 sibly the standpoint of the Chancellor was not quite identical 
 with that of the merchant, but it is permissible to suggest 
 what that of the latter was. It was, we think, intimately 
 connected with the desire for celeris mstitia, on which we 
 have remarked already. The press of business does not 
 permit the loss of time incident to examinations of title. 
 The negotiable instrument, the sale in market overt, the 
 legislation in the Factors Acts, are all manifestations of the 
 same feeling that the honest purchaser or pledgee ought to 
 be allowed to treat the possession of his seller or pledger as 
 equivalent to title or to full authority to seU or pledge. The 
 rule about sale in market overt of course comes from old 
 market law and the fairs, where any one could search for his 
 goods if he chose. A person buying in these circumstances 
 took a good title except against the Crown, and afterwards, 
 by 21 Hen. VIII, c. 11, against the prosecutor to conviction. 
 
 While the local Courts at seaports and markets were Struggles 
 
 administering the law merchant, we notice that the Admiral's LocapAd- 
 
 Court, which was established in the reign of Edward III for miralty, 
 
 the purpose of dealing with piracy, began to excite the appre- mon Law 
 
 hensions of the towns possessing franchise jurisdictions. To Courts. 
 these fears must be attributed the statutes 13 Ric. II, c. 5, 
 and 15 Ric. II, c. S, which defined the admiral's jurisdiction ^- 
 
 Although the admiral's jurisdiction in maritime and com- 
 mercial affairs was not explicitly and authoritatively affirmed 
 
 ' These fears were not groundless. In the Oor. Reg. Rolls, 7 Rich. II, 
 rot. 61, in Hamely v. Aheston, the jurisdiction of the seaport of Pad- 
 stow was challenged in a question of trespass to a ship on the ground, 
 amongst others, that it had not been deputed by the admiral to try 
 Admiralty causes {Ad. Fleets, i. xlix). In 1369 (CI. 42 Ed. Ill, m. 2) 
 a case of breach of contract had been tried before the admiral, who 
 gave judgement for defendant. The plaintiff then arrested the ship 
 in another action for the same matter in the Sheriff's Court of London. 
 It was held that it was lis iudicata, and could not be reopened. Ad. 
 Pleas, i. xlvi (Seld. Soc). 
 
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268 ENGLISH LEGAL INSTITUTIONS 
 
 till the reign of Henry VIII, when, following on some 
 admiral's patents about 1520-30 ^ the statute 32 Hen. VIII, 
 c. 14 (154)0), gave the admiral jurisdiction to try summarily 
 matters of freight or damage to cargo, there is sufficient 
 evidence that the Admiralty had not confined itself to the 
 piracy or spoil cases, but had endeavoured with some success 
 to take cognizance of mercantile suits. During the fifteenth 
 century, though the information at our disposal is scanty, 
 there are records proving that the Admiralty was making 
 efforts to try cases of freight ^, conversion of ships % and 
 contracts made within the bodies of counties *, and that 
 these efforts were being met by applications for prohibition 
 and praemunire. 
 
 But in the reign of Henry VIII we have the files of Libels 
 in the Admiralty Court, which tell their own tale. In the 
 files between the years 1527-41 there are recorded 252 suits. 
 Of these ninety-five are concerned with freight, breach of 
 contract, non-delivery, damage to cargo, misconduct and 
 default of mercantile agents abroad, sales of ships and goods, 
 contracts and debts arising abroeid, necessaries, jettison, 
 average, money lent upon security of ship or cargo ; for con- 
 version and other torts thirty-six, for wages twelve, and for 
 contempt, i. e. suing elsewhere, and questions of jurisdiction 
 eighteen, while the cases in piracy, spoil, and robbery only 
 number twenty-seven ®. 
 
 In the reign of Elizabeth the Admiralty Court takes a 
 more confident position. The queen is approached because 
 of the 'encroachments' made on the admiral's jurisdiction. 
 
 ' See the Duke of Richmond's patent (1525), Ad. Pleas, i. Iviii, 
 embracing all maritime contracts between shipowners and others, with 
 a non obstante clause. On the other hand we may note that in 1538-9 
 a supersedeas issued to the Admiralty Court which had inhibited the 
 local court of the bailiffs at Yarmouth in case on a contract of pilotage. 
 Ad. Pleas, i. 78. 
 
 2 Rot. Pat. 11 Hen. IV, pt. 1, m. 12. = Rastell's Ent., to. 24. 
 
 * Coke, Imt. iv. pp. 139-42. ^ ^^^^ pig^^ j_ bcxxiii. 
 
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EARLY HISTORY OF THE LAW MERCHANT 269 
 
 Her letter is extant addressed to the Mayor and Sheriffs of 
 London \ in which she considers it ' very strange ' that they are 
 taking on themselves to try cases on contracts arising upon and 
 beyond the seas, which properly belong to ' our Court of 
 Admiralty,' feigning the same to have been done within 
 some parish or ward of London. She directs them to desist 
 (circa 1570). 
 
 The seaport towns had fallen on evil days. Not only 
 were they jealously watched by the Admiralty Coiu±, and 
 called on to produce their charters of exemption or of 
 jurisdiction, but also by the Courts of Common Law, which 
 had designs upon them both, and were preparing to prohibit 
 freely. The local mercantile courts fell into desuetude, one 
 or two Piepoudre Courts stiU linger on, the only local mari- 
 time court that survived the Municipal Corporations Act, 
 1835, is the Admiralty Court of the Cinque Ports, which 
 goes back earlier than 1300 \ 
 
 The field was then left to the Common Law Coiirts and 
 the Admiralty Court. The Common Law gave no remedy in 
 case of contracts made or torts committed abroad. The 
 Admiralty relieved the want, but had no jurisdiction within 
 the body of a county. This restriction the Common Law 
 Courts enforced rigorously, issuing prohibitions wherever 
 a maritime contract had not actually been made, or goods 
 not actually supplied on the high seas, and permitting the 
 fiction that a contract really made at sea was made at 
 the Royal Exchange in order to withdraw the suit from the 
 Courts of Admiralty^. The Admiralty jurisdiction over 
 contracts then fell into disuse. Meanwhile the administra- 
 tion of the mercantile law in the Common Law Courts was 
 not satisfactory, owing doubtless to the fact that it had 
 never been made a professional study. As a result 
 
 ' Marsden's Admiralty Cases, 230. ^ Admiralty Pleas, ii. xix-xxi. 
 ' Bl. Oomm. iii. 107. 
 
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270 ENGLISH LEGAL INSTITUTIONS 
 
 ' when questions necessarily arose respecting the buying 
 and selling of goods, respecting the affreightment of 
 ships, respecting marine insurances, and respecting bills 
 of exchange and promissory notes, no one knew how 
 they were to be determined. Not a treatise had been 
 published upon any of these subjects, and no cases 
 respecting them were to be found in our books of 
 reports. . . . Mercantile questions were so ignorantly 
 treated when they came into Westminster HaU, that 
 they were usually settled by private arbitration among 
 the merchants themselves ^.'' 
 
 Before Lord Mansfield appeared, ' in courts of law all the 
 evidence in mercantile cases was thrown together, they were 
 left generally to a jury, and they produced no general prin- 
 ciple,' to be ' known to all mankind not only to rule the 
 particular case then under consideration, but to serve as 
 a guide for the future^.' 
 
 Lord Mansfield employed his learning and his genius, ' not 
 only in doing justice to the parties litigating before him, but 
 in settling with precision and upon sound principles general 
 rules afterwards to be quoted and recognized as governing 
 all similar cases ^.' He may truly be said to be the founder 
 of the Commercial Law of this country. 
 
 ' Camp., Lives of the Chief Justices) ii. 402. 
 " Liekbarrow v. Mason, per BuUer J., 2 T. R. 63. 
 ' Ibid. See also Lord Campbell's accoimt of Lord Mansfield and his 
 special jurymen {Lives, ii. 407). 
 
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CHAPTER XXVII 
 
 THE JEW 
 
 The position of the Jew was peculiar and unhappy. In The Jew 
 the feudal system there was no place for him. He was an ^. 
 alien, and as such had no political rights, as such could hold 
 no estate of inheritance in land, his very residence in the 
 coimtry being on sufferance. He was moreover a hereditary 
 alien, for, as he was not permitted to swear on the Penta- 
 teuch except for the purposes of judicial proceedings, he 
 was unable to do homage or fealty. No Christian might 
 do homage or fealty to him, he could be neither any lord's 
 man, nor any man's lord. He was the king's chattel. Un- 
 like the ' clerk,' he lacked the powerful aid of the Catholic 
 Church, and unlike the foreign merchant he could appeal to 
 no temporal king to use the weapons of diplomacy in his 
 favour. The counsels of self-interest forbade our kings to 
 scare away the foreign merchant, our ordinances proclaim 
 our pains to invite their welcome visits, but the Jews required 
 no such attentions. Though they lived here on suiferance, 
 they could hardly leave without permission. 
 
 Of the steps by which the Jew reached his peculiar relation- 
 ship to the Crown nothing is known, but though it is 
 extremely probable that the Baronage ardently desired pro- 
 perty in a Jew, we cannot doubt that the Crown lawyers 
 argued that what belonged to no one in particular belonged 
 to the king. As a matter of law, the Jew was regarded as 
 treasure trove. The authoritative legal view is expressed in 
 
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272 ENGLISH LEGAL INSTITUTIONS 
 
 one of the Ordinances in the so-called 'Laws of Edward' 
 as follows : 
 
 " Be it known, that all Jews wheresoever they may be 
 in the realm are of right under the tutelage and pro- 
 tection of the king, nor is it lawful for any of them 
 to subject himself to any wealthy person without the 
 king's license. Jews and all their effects are the king's 
 property, and if anyone withhold their money from 
 them, let the king recover it as his own.' 
 
 This was a correct statement of the law in Glanvill's day. 
 After the Conquest the Jews came to this country in con- 
 siderable numbers and settled in most of the important 
 towns in England, where they resided in a separate quarter 
 of their own. Though it appears that they practised handi- 
 craft |to some extent, the strength of the merchant gilds 
 prevented them from engaging in the larger operations of 
 commerce under favourable conditions. But one line of 
 business, remunerative, necessary, and beset with dangers 
 lay open. The Jew could and did lend his money. The 
 ordinary rate of interest was apparently 43J per cent, 
 per annum. The ' vadium ' charged the debtor's land and 
 chattels with principal and interest, and in default the 
 creditor was entitled to seisin and might either sell the lands 
 after a year's possession or hold them till he satisfied the debt 
 out of the profits. But the Jew creditor could not be seised 
 of land otherwise than as pledgee. 
 
 The activities of the Jews in this direction were favourably 
 regarded by the Crown. It is not too much to say that 
 they were the honey bees of the king. They carefoUy 
 collected and stored in accessible places the golden hoard 
 on which the king, whenever his necessities pressed, could 
 lay his hand. This meritorious industry it was the royal 
 interest to protect. Protective privileges were first given 
 by Henry I to a particular family, confirmed by his succes- 
 
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THE JEW 273 
 
 sors, and extended to all Jews by a Charter of King John in 
 1201. 
 
 Under this Charter they could travel and settle where they 
 pleased, they could freely buy, they could sell their securities 
 after a year and a day's possession, they went free of tolls, 
 and of all jurisdiction except of the king and his castellans, 
 and they could claim to be tried by their peers and to be sworn 
 on the Pentateuch. In all cases between a Christian and 
 a Jew, the plaintiff must produce two witnesses, a Christian 
 and a Jew. But if a Jew were sued by a Christian who 
 failed to produce' due evidence, the Jew could clear himself 
 by his oath on the Pentateuch, while the Christian in like 
 case had to wage his law with eleVen compurgators. 
 
 In their own quarter, the Jewry, the king's writ did not 
 as a rule run except in pleas of the Crown or between 
 Christians and Jews. Cases between Jew and Jew were 
 left to their own tribunals and settled according to their 
 own law. 
 
 Whatever financial assistance the kings had got from The 
 
 individual Jews, the practice of ' talliaging ' their community ^^^_ 
 
 did not commence till 1168, when Henry II demanded from munity 
 
 ' talli- 
 them an aid of 5,000 marks. It was paid, but not with aged.' 
 
 alacrity, nor without signs of royal displeasure. Twenty 
 
 years later, in the year of the Saladin tithe, Henry raised 
 
 at one blow 66*60,000 from them collectively, which equalled 
 
 very nearly half of the sum raised from the country at large. 
 
 An unfortunate affair grievously affected the fortunes of 
 the community. At the coronation of Richard the leading 
 men of the Jewish community, desiring to pay their respects 
 to the new king, thronged to the palace, were hustled by 
 the crowd, and a general affray ensued. The Christians 
 pursued the Jews to their quarter, and massacred, burnt, 
 and looted as they could. The example was followed at 
 other places, notably at York, where 'good guidance' led 
 
 T 
 
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274 ENGLISH LEGAL INSTITUTIONS 
 
 the rioters to the Cathedral where the ' vadia ' or securities 
 had been placed by the Jews for safe custody, and the bonds 
 were then burnt. This touched the Crown closely, for the 
 bonds were not in duplicate. Accordingly when Richard 
 returned from his captivity, registries of these bonds, ' Archae,' 
 were established in the principal towns and administered each 
 by four chirographers, two Christian and two Jews chosen by 
 juries summoned by the SheriiF. All loans were to be put 
 in the legal form of a chirograph before these officials, who 
 kept a copy, and also a register of all the chirographs and 
 all subsequent dealings with them. Unregistered transactions 
 seem to have been of no effect, indeed an acquittance required 
 enrolment in the Exchequer. 
 
 This system, as Mr. Rigg the learned editor of the Jewish 
 Plea RoUs^ remarks, placed the Jews at the mercy of the 
 Crown, for in time of need all that the king had to do was to 
 order a scrutiny of the ' Archae,' and having then ascertained 
 the financial position of his chattels, he proceeded to taUiage 
 them with scientific precision, and if they were refractory, 
 he attached their bonds and their persons tiU they met his 
 demands. 
 
 The Scac- In connexion with this system was the establishment in 
 ludae- ^^^ Exchequer of a special tribunal for the trial of Jewish 
 orum, causes, the Scaccarium ludaeorum. Probably the Exchequer 
 had always taken Jew causes, as the Jew was always the 
 king's debtor, but in 1198 we find sitting with the Barons of 
 the Exchequer four ' custodes ludaeorum,' of whom two were 
 Christian and two were Jews, but these were the only Jews 
 ever appointed. These ofiicials were later known as ' Justices 
 of the Jews,' but they had not exclusive jurisdiction over the 
 Jews. Apparently they seldom, if ever, sat out of London, 
 nor so far as we know did they take criminal cases. It is 
 rather hard to see how they could, as they were merely 
 
 * In the series of volumes published by the Selden Society. 
 
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THE JEW S75 
 
 a branch of the Exchequer, which was not a court of criminal 
 jurisdiction. 
 
 The function of these Justices or Guardians of the Jews 
 was to protect their clients in their privileges, especially in 
 matters of procedure, for the Jew, like the foreign merchant 
 in London, could wage his law three-handed, and could 
 claim, as defendant in cases arising in the Jewry, a jury 
 'de medietate,' and he was exempt from the jiu-isdiction 
 of the ecclesiastical courts. But these privileges, though 
 nominally belonging to the Jew, were really prerogatives 
 of the Crown, which could be and were waived by the Crown 
 at its pleasure. 
 
 There never was any real doubt that the Jews could be 
 impleaded in civil matters either ' coram Nobis ' or ' coram 
 lusticiariis Regis,' while the criminal cases, of which the 
 most important were coin clipping, forgery, and some strange 
 accusations of ritual murder, were either tried before the 
 Justices, usually in eyre, or a special commission. 
 
 Perhaps we are safe in supposing that the Exchequer 
 of the Jews was the normal forum for the trial of aU the 
 London list of Jewish causes, and such from the country 
 as were not for some reason or other taken by the king's 
 judges on circuit. Once we hear of the Justices receiving 
 a royal order to make a domiciliary visitation of the Jewries 
 to find hidden hoards of wealth, and it seems that in this 
 branch of the Exchequer were administered the estates of 
 Jews deceased. This was a duty of great importance. The 
 Jew alive or dead was of value. In his life he could be 
 mortgaged, assigned, or subdemised with his arrears of talli- 
 age, after his death his estate was valued by a mixed jury 
 and his representatives, and the least portion of it that was 
 appropriated for the king's use was a third: the rest was 
 allowed to devolve according to the disposition of the 
 
 t2 
 
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276 ENGLISH LEGAL INSTITUTIONS 
 
 deceased. If the deceased left infant children, the king had 
 their wardship and marriage, both lucrative incidents. 
 
 It is not needful here to follow in detail the fortunes of 
 the community. Let it suffice to say that though grievously 
 oppressed, yet they throve among the impoverished barons to 
 such an extent that they were becoming masters of great 
 estates in the country, and began to assume baronial state. 
 Then, as Mr. Rigg observes, a grave political peril was 
 imminent : for estates acquired by the Jews potentially passed 
 into the hands of the king. Anti-Semitism joined hands 
 with constitutionalism, and commencing in 1269 dealt re- 
 peated blows on the Jewish community, till in 1290 Edward 
 banished them from the kingdom. 
 
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APPENDIX I 
 
 THE WRIT IN CONSIMILI CASU 
 
 We have seen that the Norman kings practically recog- 
 nized no limits in their powers of writ-making. But in 1258 
 this power was attacked. It was by this time perceived, that 
 whoever made the writs made the law, because the writ was 
 a declaration that, if the plaintiff proved his statements, he 
 was entitled to relief. The inhibitory effect of the Pro- 
 visions of Oxford on the writ-making of the Chancellor was 
 such that it was found necessary to enact in the Statute 
 of Westminster 11^, that 'as often as it shall happen in 
 Chancery that in one case a writ is found, and in a Hke case 
 falling under the same right and requiring like remedy, no 
 writ is found, the clerks in Chancery shall agree in making 
 a writ.' These writs were made in consvmili casu with the 
 older forms, and produced that large class of action called 
 ' Trespass on the Case,' or shortly, ' Case.' 
 
 The grievance had become pressing. 'Non potest quis,' 
 says Bracton, ' sine brevi agere.' The forms of the writs had 
 become stereotyped, and if a plaintiff went to the Chancery, 
 the offijcina Jyrevivm,, and found no writ which would fit his 
 grievance, he went without a remedy. To perceive the true 
 importance of this statute, we must bear in mind that the 
 early actions in contract were three in number : — 
 
 i. Covenant, which lay for breach of promise under seal. 
 1 13 Ed. I, c. 24. 
 
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278 ENGLISH LEGAL INSTITUTIONS 
 
 ii. Debt, which lay for the recovery of a sum certain 
 alleged to be due, founded on a contract express or implied ; 
 this included actions for goods sold and delivered, money 
 lent, work done, money paid, and money had and received. 
 
 iii. Detinue, which lay for recovery of chattels wrong- 
 fully detained by defendant, a contract often fictitious being 
 alleged, which bound the defendant to re-deliver and which 
 he was not allowed to deny. Debt was originally a general 
 action to recover chattels, or secondly, their value. Then 
 came a differentiation : if the action was for the specific 
 chattels or coins, it was ' in the detinet,' i. e. detinue ; if for 
 the value, it was ' in the debet,' i. e. debt. 
 
 It was thus impossible to sue on an executory contract, 
 i. e. a promise to do something, unless the promise was under 
 seal. 
 
 The difficulty was met as follows : — 
 
 If an injury was committed to property in possession, or to 
 the person accompanied by actual contact, an action lay in 
 trespass with an allegation of vi et armis contra pacem. 
 
 After the statute ' case ' lay for the same injinries where 
 there had been no actual or immediate contact, and the 
 damage was consequential, with an allegation of contra pacem 
 only. 
 
 E. g. A throws a log and hits B — this was Trespass. A 
 throws a log, it lies and B trips over it — this was Case. 
 
 So A leaves his horse with B to shoe. B runs a nail into 
 the hoof and injures it. The plaintiff" brings trespass on the 
 case. If he had been in possession, he could have brought 
 trespass, but the wrong suffered was the same whether the 
 horse was in the owner's stable or the smithy ^. 
 
 It lay for the consequences of a wrongful act ; originally 
 for a malfeasance, then for a misfeasance, i. e. doing an action 
 
 ' Y. B., 46 Ed. Ill, 19 (19). 
 
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THE WRIT IN CONSIMILI CASU 279 
 
 lawful in itself in an improper manner, lastly for a non- 
 feasance with an allegation of quare assumpsisset. 
 
 Both trespass and trespass on the case are purely tortious. 
 The step from misfeasance to non-feasance was short, but 
 was taken with difficulty and great reluctance, though it 
 was felt to be logically weak to hold a man responsible for 
 carrying out an undertaking badly, and to take no notice if 
 he never tried to carry it out at all. On the other hand, the 
 defendant usually presented the plaintiff with the dilemma of 
 ' tort or contract ? ' If tort, where is the act ? if contract, 
 where is your covenant ? 
 
 Some cases in the Year Books indicate the legal position. 
 
 (a) The defendant undertook to carry the plaintifTs horse 
 across the Humber ^ ; he overloaded the boat and the horse 
 was drowned. Here was a tortious act. And though an 
 imdertaking on an assumpsit was alleged, it was unnecessary. 
 
 (6) The defendant manucepit equum de injirmitate and 
 afterwards made his cm-e so negligently that the horse died ^. 
 This was also regarded as tortious, the plaintiff not using 
 trespass as he could not allege and prove force. 
 
 (c) The same circumstances. The defendant ' assuma sur 
 luy a curer son cheval d'un certain maladie,' and he so negli- 
 gently and improvidently ' imposuit medicinas ' that he killed 
 the horse ^. This, oddly enough, was taken as an omission, 
 and it was held that the allegation of assumpsit was material, 
 for otherwise the defendant owed no duty to the plaintiff. 
 This is stiU tortious, the writ being in ' case,' but one of the 
 judges very nearly stepped over from tort into contract in 
 saying that the count ' negligenter imposuit ' was void. ' If,' 
 he said, ' I have a bad hand and he puts his medicine on 
 my heel, through which negligence my hand is maimed, 
 
 1 Ed. Ill, 22 Ass. 94 (41). 
 
 " Y. B., 43 Ed. Ill, 83 (38). = Y. B., 19 Hen. VI, 49 (5). 
 
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280 ENGLISH LEGAL INSTITUTIONS 
 
 I shall have no action unless he has taken upon himself to 
 cure me.' 
 
 If the words ' negligenter imposuit ' were void for imma- 
 teriality, the judge must have considered that the assitmpsit 
 and doing nothing afterwards gave a good cause of action. 
 
 This probably marks the transition period, for in earlier 
 cases ^ an undertaking and nothing done afterwards was held 
 to be only actionable in covenant, i. e. if under seal. Thus 
 when the defendant undertook to make a house in a certain 
 time and did not do it at aU, there was no action on the 
 agreement, though the opinion was expressed that if the 
 thing had been commenced and then by negligence not done, 
 an action would lie. 
 
 If a man has once begun to meddle, and then abstains, 
 acts and omissions can be regarded as a chain of conduct 
 leading up to the loss sustained. 
 
 It then began to be suggested that omission of due care 
 after assumpsit was in its natiure an action in contract. 
 AVhen omission diu-ing performance had once been allowed 
 to be actionable, the next step was to give the same effect to 
 omission at any time after asswnpsit if followed by damage. 
 It is not hard to see the connexion. 
 
 The word assumpsit, or 'undertook,' conveys two ideas, 
 one that of intermeddling, the other of a promise. The 
 first is the earlier and in its nature ' tortious,' the latter is 
 contractual. The two ideas are closely connected. At pre- 
 sent a binding contract can be made by conduct as well as 
 by words spoken. The conduct of the blacksmith who takes 
 my horse to his smithy, where he neglects his work, may be 
 regarded either as the first of a series of tortious acts result- 
 ing in damage, or as raising an implied promise to do the 
 
 1 Cf . y . B., 11 Hen. IV, 33 (60) ; 2 Hen. IV, 3 (9) ; 3 Hen. VI, 36 (33). 
 
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THE WRIT IN CONSIMILI CASU 281 
 
 work properly, on the faith of which I parted with the horse, 
 and got it back damaged. 
 
 This ambiguity in the word ' undertook ' was noticed by 
 one of the judges in Corhett v. PacJcmgton\ who observed 
 that the word occurred in the declaration in Coggs v. Ber- 
 nard \ but that the tortious application must be given to it, 
 as no consideration for a promise was shown, and the plea 
 was ' not guilty.' 
 
 By the time of Henry VII it seems to bei settled that an 
 action on an assumpsit, i. e. on a promise, lay in case of a mere 
 omission, which is not quite the same as saying that for an 
 action for an omission one must allege assumpsit — i. e. an inter- 
 meddling. The view, however, lingered that the action was 
 in tort, and as such, it was thought unnecessary to allege a 
 consideration in the form of a quid pro quo, or a benefit, to the 
 defendant : it was enough to prove a detriment to the plain- 
 tiff. ' If one covenants [this must mean ' promises '] to build 
 me a house by such a day, and he does nothing toward it, 
 I have an action on the case for his non-feasance just as 
 well as if he had done it badly, for I was in danger by it ^.' 
 This marks a distinct advance on the views held temp. 
 Henry IV. 
 
 This last stage was reached when it was perceived that 
 a promise could be regarded as a detriment, and thus support 
 could be foimd for the bilateral executory contract. 
 
 But this is not all. A man could never bring ' debt ' 
 unless he claimed a fixed sum, and showed a quid pro quo — i. e. 
 he was either suing for money which he had lent, or for the 
 price of money's worth which he had given to the defendant ; 
 so that as a fact the defendant had had either money or 
 money's worth. Here we get the notion of advantage to the 
 defendant; while in assumpsit what induced the Covirt to 
 
 1 6 B. & C. 268. M Sm. L. C. 167. ' Y. B., 20 Hen. VII, 8 (18). 
 
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282 ENGLISH LEGAL INSTITUTIONS 
 
 allow the plaintiff to succeed was the feeling that he had 
 suffered detriment from the defendant's conduct. 
 
 In the end, assumpsit drove ' debt ' from the field, because, 
 in debt the plaintiff could be met by ' wager of law ' ; in 
 assumpsit he could not. But the double aspect of considera- 
 tion still survives, testifying to its two sources ; it is still 
 a benefit to one party or a detriment to the other. 
 
 A ' Common Calling.' 
 
 The liability of the 'common carrier' and the 'common 
 innkeeper' takes us back to the time when assumpsit was 
 acquiring its contractual significance. That liability which is 
 to carry any applicant's goods, or to lodge the applicant, if 
 there is room, in the cart or inn respectively, survives; 
 but temp. Henry VI ^ it seems that an analogous liability 
 lay on all who professed a ' common calling,' such as a 
 smith or a ' common marshal ' (marechal still means ' farrier ' 
 in France). In bringing an action against such for non- 
 feasance it was unnecessary to allege assumpsit, for such 
 persons were notoriously in a chronic state of assumpsit. 
 Their business was to ' hold themselves out.' ' If I come to 
 an innkeeper to lodge with him and he will not lodge me, 
 I shall have an action of trespass on the ease against him.' 
 
 There may, however, be present in addition considerations 
 of public policy, for an innkeeper who decUnes to receive 
 a guest who is unobjectionable lays himself open to indict- 
 ment ^. 
 
 ' Tort Pounded on Contract.' 
 
 The purely tortious aspect of the assumpsit still survives in 
 the liability of the ' gratuitous bailee,' and in those cases 
 which have been misnamed ' Tort founded on Contract.' 
 
 1 See Y. B., 19 Hen. VI, 49 (6), and Y. B., 21 Hen. VI, 55 (12). 
 ^ Fell V. Knight, 8 M. & W. 269, and R. v. Ivens, 7 C. & P. 213. 
 
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THE WRIT IN CONSIMILI CASU 
 
 No man is bound to take charge gratuitously of another's 
 property, but if he ' intermeddle ' and receive the property 
 he is bound to take reasonable care of it. There is a legal 
 duty which exists in all men not to injure the property of 
 others, and if the goods of another are lawfully on your 
 premises, or are there with your licence, or with your ac- 
 quiescence, you are answerable for any damage occasioned by 
 your negligence^. 
 
 And although there may be a contract between the parties, 
 e. g. of agistment or bailment, this common law liability 
 exists independently of the contract. The liability under the 
 contract may be more extensive than this common law 
 liability. If the duty lies within the common law liability 
 arising out of the relations of the parties, the plaintiff need 
 not go to the contract, for the liability is tortious, but if 
 it is outside he must rely on the contract and then it is 
 contractual. 
 
 So in Corbett v. PacTcrngton % which was decided at a time 
 when counts in tort and contracts could not be joined in the 
 same declaration, it was held that a count alleging that the 
 plaintiff had delivered certain pigs to be taken care of for 
 reward, and that the plaintiff had in consideration thereof 
 agreed to take care of them and re-deliver them, was a 
 coimt in osstMnpsit (contract) and could not be joined with 
 a count in tort for negligence in keeping, because the alleged 
 obligation to re-deliver went beyond the common law duty 
 of the defendant as bailee, and could only arise out of the 
 contract ^. 
 
 * See Eayn v. Oulliford, 4 C. P. D. 182, and Meuo! v. G. E. By. Co., 
 1895, 2 Q. B. 387 (C. A.). 
 
 2 6 JB. & C. 268. 
 
 2 Per Collins L. J., in Turner v. Stallibrass, 1898, 1 Q. B. 66 
 (C. A.). 
 
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APPENDIX II 
 
 THE HALIFAX GIBBET-LAW AND THE 
 COURT OF THE SAVOY 
 
 We are indebted to Mr. Justice Stephen for preserving the 
 record of two institutions which throw light on the nature of 
 trial by jury in its earliest form. The first is the Halifax 
 Gibbet-Law. Halifax, it is stated in the tract from which 
 Mr. Justice Stephen has taken his information, is part of 
 the Duchy of Lancaster. It has an ancient custom that ' if 
 a felon be taken within their liberty, with goods stolen out 
 of or within the liberty or Precincts of the said Forest, either 
 handhabend, backberand, or confessand, cloth or any other 
 commodity to the value of ISid., that they shall after three 
 markets or meeting days within the town of Halifax next 
 after such his apprehension, and being condemned he shall 
 be taken to the gibbet and there have his head cut off from 
 his body.' 
 
 The procedure was as follows. There were seventeen 
 townships and hamlets within the liberties who chose the 
 most wealthy and best reputed men for their jurors. When 
 a felon was arrested he was brought before the bailiff of the 
 manor of Wakefield. The bailiff detained the prisoner, and 
 summoned the constables of fom* other towns to require four 
 frith burghers from each of those towns to attend at the 
 proper time. If then, when the prosecutors and the felon 
 are brought before the jury and the thing stolen is pro- 
 
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THE HALIFAX GIBBET-LAW 285 
 
 duced, and 'upon examination they do find that the felon is 
 . not only guilty of the goods stolen, but also do find that the 
 value of the goods stolen to be IS^d. or above, then is the 
 felon found guilty by the said jury.' The verdict is found 
 upon the evidence of the goods stolen and lying before them, 
 together with his own confession 'which in such cases is 
 always required.' He is then condemned to be beheaded 
 according to the ancient custom. He was sent to prison for 
 a week : there were three market days in every week, he was 
 exposed publicly in the stocks each market day with the 
 goods on his back or by him. After that he was executed by 
 the gibbet, which was a sort of guillotine. 
 
 It seems that the rule that the prisoner must be taken 
 ' confessand ' was considered to be satisfied if he could not give 
 a Satisfactory account of his possession of the stolen goods, 
 'and doth refuse when asked to tell where he found it or 
 how he came by the same, nor doth produce any witness to 
 testify for him how he came by such things, but seeks to 
 evade the truth of the matter by trivial excuses, various 
 reports and dubious stories.' 
 
 In illustration there is given an account of the trial of 
 three men in 1650, which was the last instance when the 
 custom was enforced. They were accused of stealing certain 
 goods. They were given into the custody of the chief 
 bailiff of Halifax, who summoned the constables of Halifax, 
 Sowerby, Warby, and Kircoat, requiring them to attend 
 each with four men at the High BailifTs House on April 27 
 to hear, examine and determine the cases. Sixteen jurors 
 accordingly came, and in a convenient room were brought 
 face to face with the prisoners and the goods. They were 
 charged by the bailiff to make diligent search and inquiry, 
 and the informations against the various prisoners were 
 brought in and alleged. As the jurymen seemed to have 
 some doubt about the reply of one of the prisoners to the 
 
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286 ENGLISH LEGAL INSTITUTIONS 
 
 information laid against him, they adjourned till April 30, 
 and on April 30 met again, and after full examination and 
 hearing of the whole matter, found two of the men guilty 
 by their own confession, and one not guilty. And the sen- 
 tence concludes 'by the ancient custom and liberties of 
 Halifax whereof the memory of man is not to the contrary 
 the said Abraham Wilkinson and Anthony MitcheU are to 
 suffer death by having their heads severed and cut off from 
 their bodies at Halifax Gibbet, unto which verdict we sub- 
 scribe our names April 30, 1650.' 
 
 Now we notice here that the towns are represented each 
 by four men who are brought up by the constable who is the 
 representative of the reeve. They must have questioned the 
 prisoners in order to take their confession, and when one of 
 the prisoners contradicts a statement ascribed to him, they 
 adjourned for three days, probably to make inquiries. After 
 the adjournment they talk it aU over again with the 
 prisoners, and get further confessions. The jury not only 
 find the facts but, like the suitors in the old County Court, 
 are the judges, the bailiff only registering their sentences. 
 There is nothing to show that either of the guilty men 
 were taken handhabend or backberand, and what confessand 
 amounted to is extremely doubtful. Perhaps unsatisfactory 
 answers and alleged admissions to other persons than the 
 jurors. 
 
 The other institution is the court of the Liberty of the 
 Savoy, which is still in existence. Mr. Justice Stephen was 
 indebted for his information to the late Mr. Bristowe, Q.C., 
 who was Steward of the Liberty. The Liberty of the Savoy 
 lies west of Temple Bar, along the bank of the river. It has 
 four wards and a court-leet, which meets twice a year. The 
 court consists of a Steward, who presides, and eight burgesses, 
 two from each of the four wards ; a jury for the year, con- 
 sisting of sixteen, is annually elected at the court. On the 
 
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THE HALIFAX GIBBET-LAW 287 
 
 day of meeting, the jury axe called over and sworn, the oath 
 being the same as is administered to the Grand Jury at the 
 Assizes. They then make their presentments, which are in 
 writing, and signed. If any inhabitant thinks that a 
 neighbour's house is unsafe or disorderly, and he complains 
 verbally or otherwise to the foreman of the jury, the fore- 
 man summons his jury. They satisfy themselves in any way 
 they like of the truth of the complaint, and if satisfied they 
 give notice to the offender, and if the nuisance is not abated 
 accordingly, they present the matter next court-day. If the 
 jury think that the party presented ought to be fined, four 
 of their number are appointed to settle the fine. Their 
 finding is conclusive, although they hear no evidence, examine 
 no witnesses, and go through nothing in the nature of a 
 trial. They represent, says Mr. Justice Stephen, that stage 
 in oiu- history at which ordeal and purgation had fallen 
 into disuse, and the substitute for them had not been 
 discovered. 
 
 These two survivals take us back, we cannot doubt, to a 
 remote period, which we need not attempt to date. Though 
 they occur in two widely distant parts of the country, they 
 present some features of similarity which are worth observing. 
 In both cases the jury is sixteen, representing four townships 
 or four wards, and in Halifax each panel of foiu- is brought 
 up by the constable of the township, whom we may identify 
 with the mediaeval reeve. In the Halifax case they do not 
 present, that being unnecessary, as the accused is %akGaJlagramte 
 delicto, but they say ' guilty' or ' not guilty ^ ; in the Savoy they 
 both present and punish. In neither case are witnesses 
 heard, and in both cases the jury is left to inform its mind 
 as well as it may. 
 
 The four townships play a great part, they present at the 
 hundred and county courts, they are part of the coroner's 
 machinery, their opinion is taken on ' culpabilis necne ' before 
 
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288 ENGLISH LEGAL INSTITUTIONS 
 
 the itinerants. Yet all this falls short of proving that they 
 provided our petty jury of twelve. Perhaps, too, it is of 
 importance to notice that in Edward Ill's reign, when it was 
 a good ground of challenge that an mdictor was on the 
 jury of deliverance, it became the custom for the accused 
 no longer to put himself on a particular pais or hundred, 
 but on the coimty generally, although hundredors were 
 always on the jury of deliveirance. On the other hand, it 
 may be that by this time the petty jiu-y had become firmly 
 established as an institution, and that the alteration was 
 merely to insure a larger choice of impartial people. 
 
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APPENDIX III 
 
 THE LITTLE RED BOOK OF BRISTOL 
 
 A VERY interesting and seemingly hitherto unprinted 
 document has been recently published in the Little Red 
 Book of Bristol. It is a treatise in Latin on the Lex Merca- 
 toria, in twenty-one chapters, and written in a fourteenth- 
 century hand. It has been transcribed by Mr. Bickley of 
 the British Museum, but the text is in places corrupt and 
 very hard to translate, and ought to be edited with notes 
 by some competent hand. I purpose in this appendix to 
 attempt some indication of its contents. 
 
 The first chapter states that the Lea: Mercatoria or Market 
 Law attaches to markets, and that markets are held in five 
 places 'in Civitatibus, nundinis, portubus super mare, villis 
 mercatoriis et burgis,' that in the first two attachment or 
 adjoiumment is either *de hora in horam,' or 'de die in 
 diem,' in ports 'de daytida in daytidam,' in market towns, 
 and boroughs (' villis mercatoriis et burgis '), ' de mercato in 
 mercatum.' All pleas naturally belong to it, except pleas of 
 land. But as regards pleas concerning appeals, if the owners 
 of the franchise (jiomini) and the parties choose to remove 
 them into the common law courts and refuse the law mer- 
 chant they may, and usually do. 
 
 The second chapter treats of how the Law Merchant differs 
 from the Common Law, and the differences are three. 
 
 (1) Its process is swifter. 
 
 u 
 
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290 ENGLISH LEGAL INSTITUTIONS 
 
 (2) If a plaintiff puts any one under pledge to answer 
 for trespass, covenant, debt, or detention of chattels, he 
 puts him under pledge for the whole debt, damages, and 
 costs ^. 
 
 (3) The law merchant does not admit any one ' ad legem 
 in parte negativa,' but it is the duty of the plaintiff to 
 prove his case by secta or by deed, or both, and not the duty 
 of the defendant. And if one buys from or barters with 
 a merchant, whether himself be merchant or no, he must 
 answer according to the Lex Mercatoria if he can be found or 
 attached within the five places where markets are held, so 
 long as the thing is merchandise or ' ad mercandisam suam 
 spectans.' The same is the rule where a merchant does not 
 keep his engagement, whether with a merchant or not, unless 
 they agree to go to common law ". 
 
 ■^ At commou law, the ordinary process in an action for debt was by 
 a writ of ' iusticies,' e. g. ' quod reddat x marcas quas ei debet ut dicit,' 
 when, Fleta says (p. 134), the sheriff will not move till he has taken 
 pledges to prosecute, which he thinks wrong. The plaintiff then offers 
 pledges, and securitate recepta the debtor is summoned by two of the 
 vicinetum to come and answer at the next court. If he neither comes 
 nor sends excuse, then on proof of summons, and the plaintiff being 
 present, he is directed to be distrained till he gives pledges 'de parendo 
 iuri proximo die com.' If he finds them and still does not come, the 
 pledges are fined and another distraint issues till he does come. If he 
 comes and loses, the plaintiff recovers ' debitum cum dampnis,' which 
 shall be taxied by the sheriff and suitors of the county. 
 
 No final costs were recoverable at common law by plaintiff or de- 
 fendant. But by the Statute of Gloucester, 6 Ed. I, c. i, the demandant 
 may recover against the tenant the cost of his writ purchased (which 
 by a liberal interpretation has been construed to extend to the whole 
 costs of his suit), together with the damages given by that statute. 
 'And this Act shall hold place in all cases where a man recovers 
 damages,' cf. 2 Inst. 288. 
 
 ' In the view of the early common law, it was no part of the business 
 of the court to weigh the proof, it simply declared who should give it, 
 and in what manner, and then what the judgement should be after its 
 completion. Proof was not to convince the court, but to satisfy the 
 opponent. Proof was largely one-sided, and the question was who 
 was to give it. It might be a privilege, or it might be fatal. It was 
 
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THE LITTLE RED BOOK OF BRISTOL 291 
 
 Chapters III and IV deal with the topics of pledges to 
 prosecute, and of essoins, which seem to be similar to the 
 common law procedure. Precedents are given, from which 
 we see that the style of the Court is, in London 'coram 
 vicecomite,' in a fair 'coram seneschallo feriae,' if in a 
 borough ' coram preposito mercati,' if in a city ' coram maiore 
 et baUivis.'' 
 
 Chapter V deals with persons attached, and the process of 
 attachment against them and their pledges. 
 
 Chapter VI treats of the important subject of the recovery 
 of debts where there is no writing or tally, and where wager 
 of law is not allowed. The practice is stated as follows. 
 If B is attached to answer for debt, detinue, covenant, 
 trespass, or other mercantile plea, and demands, say in debt, 
 what the plaintiff A has to show for it, and A says 'good 
 suit,' though the defendant B may desire to wage his law to 
 prove that he owes nothing, this is not permitted, because 
 it is notorious that merchants and their apprentices and 
 servants often deliver (?) ' apprestant ' goods without writing 
 or tally, and it would be inconvenient, nay impossible, to 
 use these formalities always. So if 5 ' precise negat,' a day 
 is given for A to bring his proofs, and for B to hear them, 
 
 not every complaint or every affirmative defence, not a simplex vox, 
 that was to saddle a man with this hurden. Cf. Magna Oharta, 38, 
 and cf. Bracton, N. B. ii, case 260 ' Et quia praedictus Rogerus nihil 
 ostendit . . . nee sectam producit nee cartam profert nee aliquid aliud 
 nisi simplicem vocem suam,' &c. So Fleta, 137, says that no free man 
 shall he pnt ' ad legem nee ad iuramentum per simplicem loquelam 
 sine testibus fidelihus.' But if he produces secta, i. e. testimony of 
 legal men ' qui contractui interfuerint praesentes,' then the defendant 
 may wage his law, by producing twice as many up to twelve. ' In hoc 
 casu semper incumhit probatio neganti.' But he is not bound to wage 
 his law against a secta variabilis, i. e. one that did not agree. We 
 may notice that Fortescue (De laudibus, c. 21) observes that by the 
 course of the Civil Law the party who upon the trial holds the 
 affirmative side of the question is to produce his witnesses, whom he 
 can name at pleasure. On the other hand, he says, a negative cannot 
 be proved. 
 
 u2 
 
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292 ENGLISH LEGAL INSTITUTIONS 
 
 and rebut them if he can, unless A has his secta there on 
 the spot, in which case they are produced and examined. 
 They are separately sworn to tell the truth, not ' secundum 
 credulitatem,' to the best of their belief, but ' de veritate sub 
 periculo suo.' They are examined by the steward before the 
 parties and the whole Court. If there is a suspicion of con- 
 spiracy, the other witnesses are ordered out of Court, but if 
 they are men of credit they may hear each other's testimony. 
 If A names witnesses who will not appear, or who require 
 payment for their evidence, and they are distrainable within 
 the jurisdiction of the Court, they are distrained by the 
 bailiff till they come. If they are outside the jurisdiction, 
 A is allowed till the third Court to produce them. If he 
 cannot, B goes quit, with costs at the discretion of the 
 merchants of the Court. B then cannot be impleaded of 
 the same cause of action, till his costs have been paid, and 
 the costs are thereon straightway levied and paid over in 
 Court, and a copy of the record can be claimed by the parties 
 for production at other market courts. If A can prove his 
 case by three credible witnesses, he recovers (unless B finds 
 new security for convicting A and his witnesses in an 
 attaint), and gets damages and costs assessed by the mer- 
 chants of the Court. But where the fair or market can 
 have ftill knowledge of the truth, the case is settled by 
 inquisition and not by the merchants of the Court. 
 
 But if B does not deny simply the plaintiff's story, but 
 says, for instance, that he was once indebted, but has long 
 since paid the debt, he is allowed to prove his defence, 
 because, though he was at first defendant, such an answer 
 makes him plaintiff. And the defeated party always pays 
 damages and costs to the winner ^. 
 
 ^ This procedure, which is much the same as our civil procedure 
 of to-day, contrasts very favourably with the antiquarianism of the 
 common law. In 1587, when the Chancellor asked the judges if a man 
 were discharged of his debt by waging his law, they said, ' Yes,' but 
 
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THE LITTLE RED BOOK OF BRISTOL 293 
 
 Chapter VII states that merchants are liable for goods 
 lent (rnutuatd) to their apprentices and submerchants. 
 
 Chapter VIII gives the rule that if a man, dog, cat, or 
 other beast escapes alive from a ship it is no wreck, and the 
 goods must be kept by the proper authority for a year and 
 a day, for the owner, and then they revert to the king. 
 This agrees with the Statute 3 Ed. I, c. 4. It seems that it 
 
 Man wood C. B. said it was the plaintiff's folly, for, had he sued in 
 assumpsit, the defendant could not have waged his law. Wager of law 
 was not allowed where the cause of action was a tort (London v. Wood, 
 12 Mod. 677). It was finally aholished hy 3 & 4 Will. IV, c. 42. 
 
 According to Fleta the practice was Sa follows. If ^ brought an 
 action in debt, and had only his own voice (vox sola), the defendant 
 went quit (p. 132). If A produced a secta, either ad vocem probandam 
 or to prove a tally, the defendant waged his law by producing twice 
 the number of ^'s witnesses up to twelve (p. 137). A tally without 
 a supporting ' secta ' could be disposed^ of by the defendant's oath. 
 A secta variabilis was no secta at all (p. 138). Against his own 
 writing the defendant could not wage his law. Fleta in these 
 passages notices the different practice of the merchants. ' Tallias 
 dedictas per testes idoneos conceditur mercatoribus de gratia principis 
 probare, ad minus per duos iuratos qui de die, loco, et numero et aliis 
 circumstantiis Concordes per diligentem examinationem inveniantur' 
 (p. 132). They prove their tallies ' per testes et per patriam.' If the 
 defendant produces a tally against the plaintiff's tally alleging payment 
 of the debt, the defendant can go round nine churches and swear at 
 nine altars that he has paid, and go quit (p. 138). But as this practice 
 was abused the ' statute merchant ' was invented (Statute of Acton 
 Bumell, 11 Ed. I, and 13 Ed. I, st. 3), viz. ' Noverint universi me 
 A. de tali Com. teneri B. in x marc' solvend' eidem ad festmn Pentec' 
 anno regni regis, &c. Et nisi fecero concedo quod currant super me 
 et heredes meos districtio et poena provisae in statute Domini Regis 
 edito apud Westin. dat. London tali die anno supradicto.* 
 
 In the Liber Albus (Munim. Gild. i. p. 203) the usages of the City of 
 London are mentioned. In pleas of debt the defendant may wage his 
 law seven-handed, but if a foreigner, three-handed. If he cannot find 
 two, he must go at the plaintiff's request to six churches nearest the 
 Guildhall and swear that his oath was good. If he does so, the plaintiff 
 is amerced. Also against a sealed tally by City usage the defendant 
 has no law, but he may deny that the date of payment is correctly 
 alleged. See also the Doomsday of Ipswich, Bl. Bk. of Admiralty, 
 ii. 127. 
 
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294 ENGLISH LEGAL INSTITUTIONS 
 
 was hoped that the escaping animal might give a clue to the 
 ownership, and that marks on the goods identifying the 
 owner prevented it being considered wreck, and so a royal 
 perquisite '. 
 
 Chapter IX. Within the five places aforesaid, the lex 
 mercatoria is always the law, unless both parties agree to go 
 to common law, for the common law is mater legis merca- 
 toriae, and has granted her daughter this privilege. 
 
 Chapter X is important as dealing with the challenges 
 against testes and iurati. In an inquisition, the iurati may 
 be challenged for relationship, affinity, tenancy, apprentice- 
 ship, conspiracy, intimidation, in short for everything that 
 may make it probable that the juror will not or dare not 
 speak the truth. But no witness can be challenged so long 
 as he is free and of good report, and has sufficient property 
 to make restitution to the defendant in case he is subse- 
 quently convicted of perjury ; and even though his property 
 be insufficient, he cannot be challenged if the principal gives 
 security that he will make up the deficiency ^ 
 
 ' Bract., 1. 3, c. 3. 
 
 ^ The testes here must be identified with the secta of a previous 
 chapter. It will be noticed, however, that the mercantile secta plays 
 a more important part than the old common law secta, which only 
 showed a probable cause of action, a ' probabilis monstratio,' a mere 
 prelude to the one-sided proof, and which finally became a mere 
 form. These witnesses gave ' evidence/ and were examined care- 
 fully. In the ' Consuetudines Ville BristoU,' the first entry made in 
 The Little Red Book, pp. 24-44, we find : — ' Also it is ordained and 
 agreed that when any one, be he citizen or stranger, declares his 
 intention to prove in pleas of debts, contracts, covenants, or trans- 
 gressions, he can prove by witnesses, being citizens or strangers, who 
 were present at such contracts, on oath . . . that they shall say nothing 
 else than what they have heard and seen. And such witnesses shall 
 be examined by burgesses of the town sworn . . . and be in no way 
 examined by strangers.' The oaths of witnesses (pp. 62-3, temp. 
 Ed. Ill) are in the following form : — In debt : ' Nous veritee dirroms 
 de ceo qe vous me demaundretz dune dette qe A demaunde vers B en 
 ceste court, et en ceo nul faus dirray, sy m'eyde dieux.' — Saunz dire 
 a son ascient, quia dicet de veritate suo periculo. 
 
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THE LITTLE RED BOOK OF BRISTOL 295 
 
 Chapter XII. In every market Court judgement shall be 
 given by the merchants of the Court, and not by the mayor 
 or steward; If these interfere, action lies against them. The 
 'suitors' of the Court are all who axe feoff ati ei residentes 
 within the bounds of the five places, and all merchants who 
 habitually frequent those markets, and those whose names 
 are in the market list (j)apiro mercati), except ' clerici comites 
 Barones Baroneti vel milites.' 
 
 Chapter XIII treats of executing judgements. If the 
 bailiff is resisted, he reports to the dominus or mayor, who 
 summons the merchants. Twelve are picked out, and others 
 more or less from the Court, as necessity demands, in order 
 to overcome resistance. If active resistance is still offered, 
 the hue and cry is raised, and the contumacious defendant 
 is attached personally and lodged in prison till he satisfies 
 the judgement and pays damages and costs to all who were 
 summoned and came. The common law and the law mer- 
 chant deem all who axe feoff ati et residentes in these places 
 to be merchants though they do not trade, with the ex- 
 ceptions above stated. There are also some rules regulating 
 the forcing of locks and the breaking of bulk under an 
 execution. 
 
 Chapters XIV and XV are occupied with the methods 
 of making distraints, and the proper custody of things 
 distrained. 
 
 Chapter XVI gives the obligation of clerks of the markets 
 to make authentic transcripts of the pleas for the parties at 
 a certain price. 
 
 Chapter XVII states that every market must have its seal, 
 which is to be kept with great precautions. 
 
 Chapter XVIII gives the rule that in every merchant 
 Court the lord or the mayor shall have a clerk, and roUs 
 containing the pleas therein pleaded, and the 'suitors' or 
 
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296 ENGLISH LEGAL INSTITUTIONS 
 
 covirmmitas must have a clerk and rolls of their own. This 
 is necessary for their own protection, as the penalties of a 
 false judgement fall not on the lord but on the suitors, for 
 it is their judgement. 
 
 According to Chapter XIX apprentices must give pledges 
 to secure their masters against loss caused by negligently 
 parting with the masters' goods. 
 
 Chapter XX deals with attaints in a full and interest- 
 ing account. Attaints are not granted without a king's 
 writ in the merchant Courts where there has been an 
 inquisition, for the parties have consented to this method. 
 But where a secta has been examined in open Court, such 
 examination being conducted by the steward and two of the 
 more discreet merchants chosen by the Court, before judge- 
 ment is given the defendant is asked if he has anything to 
 say why judgement should not be pronounced according to 
 the evidence. The defendant then in his proper person and 
 not by attorney may declare himself prepared to convict the 
 plaintiff and his witnesses of perjury. He swears that the 
 claim is false, that the witnesses whom he names have lied, 
 and that he will prove the same to the best of his ability. 
 He must then find security by gage and pledges sufficient 
 to satisfy a fresh amercement if he fails. He is then given 
 a day at the next Court, or the next but one, to bring his 
 witnesses, the successful plaintiff being notified that he may 
 come and hear, and take what steps he thinks fit. Both 
 can bring witnesses, the challenger to disprove, the plaintiff 
 to 'afforce' or strengthen the first secta. The better proof 
 wins, subject to this, that to succeed the challenger must 
 produce at least two more witnesses than the original 
 plaintiff, for the law favours possession. In case the wit- 
 nesses are at a distance, or are unwilling to come gratis, 
 longer time is allowed. But if at the hearing the appeal 
 fails, the plaintiff and his secta go quit, and the unsuccessfiil 
 
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THE LITTLE RED BOOK OF BRISTOL 297 
 
 party has to pay the damages and costs incurred by the 
 adversary. The appellant after the first stage, when he 
 takes his corporal oath, can appear by attorney. 
 
 The last chapter gives precedents of certificates of pro- 
 ceedings sent by one merchant Court to another to enable 
 plaintiflfe and defendants to prove that a matter is res itidi- 
 cata. 
 
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INDEX 
 
 Adjective law, priority of, 14. 
 Admiralty, see Court. 
 Anglo-Saxon justice, 16. 
 Appeal, H.M.'s Court of, 178, 
 
 182, 184. 
 Appeals, Criminal, 106, 200 sq. 
 
 — in Chancery, 161. 
 Archdeacon, tiie, see Courts. 
 Assize, the Grand, 66, 214 sq. 
 
 — the Petty, 66, 216. 
 
 — of Darrein Presentment, 69. 
 
 — of Mort d'ancestor, 67. 
 
 — of Novel Disseisin, 66. 
 
 — Utrum, 60. 
 
 — Judges of, see Courts. 
 Attainder, Bill of, 109. 
 
 B. 
 Ban, the, 26. 
 Battle, trial by, 14, 30, 65, 107, 
 
 200. 
 Bishop, the, see Courts. 
 Bootless offences, 13. 
 Burghmote, the, 40. 
 
 Canon law, 223, 224. 
 Caste and Contract, 21. 
 Certiorari, see Writ. 
 Challenging, Right of, 210, 218, 
 
 219, 294. 
 Chancellor, the, 111 sq., 160 sq., 
 
 177, 262. 
 Charters, 31. 
 Church, courts of, see Courts 
 
 (spiritual). 
 
 — &,wofthe, 222. 
 
 — recent statutes affecting, 237- 
 41. 
 
 Clergy, benefit of, 242 sq. 
 
 — exemption of from lay tribu- 
 nals, 103. 
 
 Common Law, the, 19, 46, 
 
 289 sq. 
 Compurgation, 17 sq., 30, 202. 
 Convocation, 234. 
 Coroner, the, 188 sq. 
 Council, the King's, 69, 75, 76, 
 
 110. 
 
 — and Parliament, 74. 
 
 — and Star Chamber, 134 sq. 
 
 — its effect on the Criminal law, 
 148. 
 
 — its connexion with the Ad- 
 miralty, 168, 175. 
 
 — its procedure, 116. 
 Counties palatine, 186 sq. 
 Courts (secular) : 
 
 — of Admiralty, 167 sq. , 173, 250, 
 267 sq. 
 
 — of Assize and Nisi Prius, 94, 
 179. 
 
 — of borough, 40, 207. 
 
 — ofC.C.R., 180, 181. 
 
 — of Common Bench or Pleas, 69, 
 73, I76sq. 
 
 — of County, 38, 41, 60, 63, 221. 
 
 — of Curia Regis, 35, 71. 
 
 — of Curia Regis capitalis, 66, 
 67. 
 
 — of Curia Regis coram institiariis 
 itinerantibus, 66. 
 
 — of Exchequer, 36, 73, 85. 
 
 — of Exchequer Chamber, 93, 
 179. 
 
 — of Forest, 42. 
 
 — High, of Justice, 178. 
 
 — of Hundred, 40. 
 
 — of King's Bench, 64, 66, 69, 
 72, 73, 86 sq., 180. 
 
 — of Lord High Steward, 101. 
 
 — of Manor, 23, 41. 
 
 — of Master of Bolls, 168, 177, 
 183. 
 
 — of President and Council of the 
 North, 148. 
 
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300 
 
 INDEX 
 
 Courts (secular), continued : 
 
 — of President and Council of the 
 West, 148. 
 
 — of President and Council of 
 Wales, 148. 
 
 — Piepoudre, 256 sq. 
 
 — Prize, 184. 
 
 — of Requests, 147, 162. 
 
 — Savoy, App. II, 284, 286. 
 
 — of Sessions (Quarter), 195 sq. 
 
 — of Sessions (Petty), 197. 
 
 — of Sheriff, 38, 41, 50, 53. 
 
 — of Star Chamber, 130 sq. 
 
 — of Summary Jurisdiction,196sq. 
 
 — Palatine, 185 sq. 
 
 — Tolzey, 257. 
 
 — Vice-Admiralty in Colonies, 
 176. 
 
 — Welsh, 187. 
 
 Courts (spiritual), 224 sq. 
 
 — of Archbishop — 
 
 Arches, 226. 
 Audience, 226. 
 Chancery, 226. 
 Peculiars, 226. 
 Prerogative, 177, 226. 
 
 — of Archdeacon, 225, 227. 
 
 — of Bishop, 227. 
 
 — of Delegates, 232, 235. 
 
 — of High Commission, 231, 
 233 sq. 
 
 — of Probate and Divorce, 175, 
 177. 
 
 Crime and tort, 13. 
 Crown, pleas of the, 46. 
 
 Decretals, 223. 
 Deodands, 189 sq. 
 
 E. 
 
 Error, see Writ. 
 •Exceptiones,' 216. 
 Exchequer, see Court. 
 Executor, the, 228, 229. 
 Eyre, the General, 67. 
 
 r. 
 
 Family, Development from the, 1. 
 Feud, the blood, 11. 
 Feudalism, Continental, 26. 
 — English, 27 sq. 
 
 Fictions, 'contra pacem domini 
 regis,' 63. 
 
 — Latitat, Writ of, and Bill of 
 Middlesex, 85 sq. 
 
 — ' quia dominus remisit curiam,' 
 53. 
 
 — Quominus, Writ of, in the Ex- 
 chequer, 85. 
 
 — that were used against the 
 Admiralty, 174. 
 
 a. 
 
 Gild Merchant, the, 258. 
 
 H. 
 Habeas corpus, see Writ. 
 Halifax Gibbet, App. II, 284. 
 Heresy, 229-31. 
 Hundred, the, see Court. 
 
 Impeachment, 98, 104. 
 Information, criminal, 199. 
 Injunctions, 156, 168 sq. 
 Inquest, recognition by, 31 sq. 
 Inquisition, see Writ. 
 Itinerant judges, 63 sq. 
 
 Jews, Methods of taxing, 273. 
 Judicature Acts, 175, 177 sq. 
 'Jurata,'the, 216, 217. 
 Jury: 
 
 — connexion of the Hundred with 
 Petty, 209. 
 
 — Coroner's, 192. 
 
 — of deliverance, 208. 
 
 — Grand, 209. 
 
 — of Presentment, 207. 
 
 — trial by, civil, 213 sq. 
 
 criminal, 199 sq., 284. 
 Justicies, see Writ. 
 
 K. 
 
 King, the, his military character, 
 11, 20. 
 
 — his relation to criminal justice, 
 13. 
 
 — his justice at first not ordinary, 
 20, 45. 
 
 — his justice becomes ordinary, 50. 
 
 — in Parliament, 82. 
 
 — in Council, 82. 
 
 — in Council in Parliament, 97. 
 
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INDEX 
 
 301 
 
 Iiatitat, see "Writ. 
 
 Law and Ectuity, fusion of, 179, 
 181. 
 
 Little Bed Book of Bristol, The, 
 App. Ill, 289 sq. 
 
 Lords, House of, judicial func- 
 tions, 97. 
 
 — appeal to, 177-8. 
 
 — as a court of first instance, 97. 
 
 — chancery appeals, 97. 
 
 — common law appeals, 97. 
 
 — its criminal jurisdiction, 98. 
 
 — threatened abolition, 179. 
 
 M. 
 
 Mandamus, see Writ. 
 Manor, see Coiirt and Writ. 
 Middlesex, Bill of, 87. 
 
 U". 
 
 ITe exeat regno, see Writ. 
 ' Nial feceris ' clause, 62. 
 !Nisi priuB, 94. 
 
 Oath, ex-o£Scio, 235. 
 
 — of compurgator, 31. 
 
 — of witness, 30. 
 Oleron, Laws of, 252 sq. 
 Ordeal, 30, 202, 204. 
 
 Oyer and Terminer, ordinary 
 commission of, 94. 
 
 — special commission of, 114. 
 
 Parliament, appearance of, 74. 
 
 — meaning of the word, 79. 
 
 — High Court of, 81, 96 sq. 
 
 — separation from Council, 83. 
 'Patria,' the, 217-8. 
 Peace, Justices of, 194 sq. 
 Peers, trials of, 98. 
 
 Peine forte et dure, 206. 
 Penitentials, 222. 
 Pone, see Writ. 
 Pope, jurisdiction of the, 225. 
 Praecipe, see Writ. 
 Praemunire, see Writ. 
 Presentment, 207. 
 Principals as witnesses, 181. 
 Privy Council, see Court. 
 Prohibition, see Writ. 
 
 Proof, Burden of, 213. 
 
 — Methods of, 214. 
 PubUc fame, 202. 
 Purgation, Canonical, 244. 
 
 Q. 
 
 Quibusdam certis de causis, see 
 
 Writ. 
 QuominuB, see Writ. 
 Quo Warranto, see Writ. 
 
 B. 
 
 Bebellion, Commission of, 159. 
 Becordari facias, see Writ, 
 Becorder, the, 196. 
 Beformation period, 281 sq. 
 Bequests, see Court. 
 
 — Masters of, 164. 
 Bight, Writ of^ see Writ. 
 Bolls, Master of, 158. 
 Bussell, Earl, Trial of, 100. 
 
 S. 
 Sac and Soc, 22 sq. 
 Sanctuary, 249. 
 Savoy, Liberty of, App. II, 284, 
 
 286. 
 Scaccarium Judaeorum, The, 
 
 274, 275. 
 Scutage, 28. 
 Secta, the, 213, 290 sq. 
 Self-help, 11, 14, 15. 
 Sequestration, Commission of, 
 
 159. 
 Sheriffs, jurisdiction of, see 
 
 Court. 
 
 — inquest of, 61. 
 
 — Turn, 41. 
 
 Spiritual jurisdiction, 227 sq. 
 
 — peers as judges, 103. 
 Star Chamber, 130 sq. 
 
 — Act, 139, 201. 
 
 — and Council, 134 sq. 
 
 — and the criminal law, 148. 
 
 — procedure, 142. 
 Stew^ard, the Lord High, 101 sq. 
 Stipendiary, the, 197, 198. 
 Subpoena, see Writ. 
 Summary jurisdiction, 196, 197. 
 
 T. 
 Three mile limit, the, 172. 
 Tolt, 61. 
 
 Tort and Crime, 13. 
 Trailbastons, 77. 
 
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302 
 
 INDEX 
 
 U. 
 
 Uniformity of Frooess Act, 88. 
 'tTse,' the, 167. 
 
 Vice-Chancellora, the, 161. 
 
 W. 
 
 William I, statutes of, 25. 
 Wolsey, as Chancellor, 158. 
 "Writ, the, of certiorari, 91. 
 
 — consultation, 90. 
 
 — corpus cum causa, 166. 
 
 — de heretico comhurendo, 230. 
 
 — in consimili casu, App.I,277sq. 
 
 — of error, 62, 93, 94. 
 
 — of habeas corpus (modem), 166. 
 
 — of inquisition, 33. 
 
 — of justicies, 51. 
 
 Writ of latitat, 87. 
 
 — of mandamus, 89. 
 
 — of ne exeat regno, 116. 
 
 — of nisi prius, 96. 
 
 — of pone, 61. 
 
 — of praecipe, 50. 
 
 — of praemunire, 117. 
 
 — of prohibition, 89. 
 
 — of Quibusdam certis de causis, 
 154. 
 
 — of quominus, 85. 
 
 — of Quo warranto, 42. 
 
 — of recordari facias, 62. 
 
 — of right, 62. 
 
 — of right, quia dominus, &c. , 
 53. 
 
 — of subpoena, 117, 164-6. 
 
 — of venire facias, 166. 
 
 — to Manorial Court, 52. 
 
 — vicontiel, 61. 
 
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