Hi)i!«iiH.>!iHii!; (jt^riJsiiiJiitiH)j9j^^9Hill!!ii4!iiJi!i!K (IJnrnfU Cam i>rl|nnl Slibtary Optft of MR. E. J. CARTER CLAYTON, NEW YORK Cornell University Library KD 532.R33 1880 Reeves' history of the English law, from 3 1924 017 095 021 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017095021 REEVES' History of the English Law, FKOM THE TIME OF THE ROMANS TO THE END OF THE REIGN OF ELIZABETH. WITH NUMEROUS NOTES, AND AN INTRODUCTORY DISSERTATION ON THE NATURE AND USB OF LEGAL HISTORY, THE RISE AND PROGRESS OF OUR LAWS, AND THE INFLUENCE OF THE ROMAN LAW IN THE FORMATION OF OUR OWN. BY W. F. FINLASON, Esq., BABBISIEB-AT-LAW. COMPLETE IN FIVE VOLUMES. VOL. I. FEOM TKE TIME OP THE ROMANS TO THE END OF THE EEIGN OF JOHN. PHILADELPHIA: M. MUEPHT, LAW BOOKSELLER, PUBLISHER, AND IMPORTER, No. 715 Sansom Street. 1880. ^^^^^'f cV-.^) COPYBIGHT. M. MUKPHY. 1879. PHILADELPHIA ! COLLINS, PBINTEK, TO THE RIGHT HON. SIR JOHN TAYLOR COLERIDGE, SOMETIME ONE OF THE JUDGES OF THE COURT OF QUEEN'S BENCH, WHO, BEPOEE HIS ELEVATION TO THE OPPICE OP JUDGE, HAD - ACaUIKED EEPUTATION AS A JTJKIST, BY HIS VALUABLE EDITION OP THE COMMENTARIES ON THE LAWS OF ENGLAND, THIS EDITION OP THE HISTORY OF THE LAWS OF ENGLAND (WITH HIS KIND PERMISSION) IN TESTIMONY OP PEOPOUND VENERATION POR THOSE GREAT GIFTS, AND EMINENT ACQUIREMENTS BY WHICH, DURING HIS DISTINGUISHED CABEER, HE ADORNED THE JUDICIAL BENCH, AND ADDED NEW LUSTRE TO A NAME AND FAMILY ALREADY ILLUSTRIOUS. OONTEI^TS OF THE FIRST VOLUME. PAOE Adveetisbment, vii Attthoe's Peefaob to the Fiest Edition, .... . Ix Preface to the Present (last English) Edition, . . . xvii Inteoduotion to the Pebsent Edition, xx CHAPTEE I. THE SAXONS. The Laws of the Saxons — Thainland and Eeveland — Freemen — Slaves — The Toum — County Court — Other Inferior Courts — The Wittenagemote — Nature of Landed Property — Method of Conveyance — Decennaries — Criminal Law — Were — Murder — Larceny — Deadly Fends — Sanctuary — Ordeal — Trials in Civil Suits — Alfred's Dom-boc — Com- pilation made by Edward the Cqpf essor — Saxon Laws . 159-224 CHAPTER II. WILLIAM THE CONQUEROR TO HENRY II. The Conquest — Saxon Laws Confirmed — The Laws of William the Conqueror — Trial by Duel in Criminal Questions — Establishment of Tenures — Nature of Tenures — Different Kinds of Tenures — ViUenage — Of Esouage — Consequences of Tenure — Of Primogeniture — Of Alienation — Of Judi- cature — The Curia Eegis — Justices Itinerant — The Bench — The Chancery — Judicature of the Council — Of the Spir- itual Court — Of the Civil and Canon Law — Doctrines of the Canon Law — Probate of Wills — Constitutions of Clar- endon — Of Trial by Duel in OivU Questions — Of Trial by Jury — By the Assize — Of Deeds — A Feoffment — A Fine — Of Writs — Of Eeoords 225-346 1* V VI CONTENTS OF THE FIRST VOLUME. CHAPTER III. HENRY II. PAGS Of Villeins — Dower — Alienation — "Nemo potest esse Haeres et Dominus" — 0£ Descent — Of Testaments — Of Wardship — Marriage — Of Bastardy — Usurers — Of Escheat — Mari- tagium — Homage — Relief — Aids — Administration of Jus- tice — A Writ of Right — Essoins — Of Summons— Of At- tachment — Counting upon the Writ — The Duel — The Assize — Vouching to Warranty — Writ of Right of Advow- eon — Of Prohibition to the Ecclesiastical Court — The Writ de Nativis — Writ of Right of Dower — Dower unde Nihil 347-414 CHAPTEE IV. HENRY II. TO JOHN. Of Fines — Of Records — Writ de Homagio Reoipiendo — Pur- presture — De Debitis Laioorum — Of Sureties — Mortgages — Debts ex empto et vendito — Of Attorneys —Writ of Right in the Lord's Court — Of Writs of Justices — Writs of Replevin — and of Prohibition — Of Recognitions — Assisa Mortis An- teoessoris — Exceptions to th e Assize — Assisa Ultimse Prsesen- tations — Assisa Novsb Disseisinae — Of Terms and Vacations — The Criminal Law — Of Abjuration — Mode of Prosecu- tion — Forfeiture — Homicide — Rape — Proceeding before Justices Itinerant — The King and Government — The Char- ters — The Characters of these Kings as Legislators — Laws of William the Conqueror — Of the Statutes — Domesday- Book — Glanville — Miscellaneous Facts . . . .415-489 ADVERTISEMENT* "VrO elaborate explanation is required to justify the printing of an American edition of Reeves' History of the English Law. It seems remarkable that its pub- lication in this country has been so long delayed. A work that is necessary to the historical student, valuable to the legislator, and the source from which the phil- osopher abstracts the facts upon which he bases theories of government, it has provoked little adverse criticism, but has been often eloquently commended. It has no rival in English legal literature. It furnishes an accu- rate view of the progress of the law from the time of the Saxons to the reign of Elizabeth; and the scholar who desires a comprehensive knowledge of the relation of law to modern civilization, and wishes to trace the rise and growth of our present system of jurisprudence, will find it indispensable in his researches. * The first edition, published in 1784-85, consisted of two volumes. In these the author did not advance beyond the reign of Henry VII. The second edition, 1787, four volumes, brought the History to the end of the reign of Philip and Mary. In 1829, another volume was added, including the reign of Elizabeth, In 1869 the edition by Mr. Finlason appeared, vii Vlll ADVERTISEMENT. The historical symmetry of the work has been care- fully considered in the division into five volumes, and the convenience of the reader been assured. The English division into three volumes was an artificial one, and the volumes were large and unwieldy. The last edition, with the learned notes of "W". F. Fin- lason, Esq., has been literally followed, except that nu- merous errors in the cross-references have been corrected. Philadelphia, Jau. 1, 1880. AUTHOR'S PREF'A.CE TO THE FIRST EDITION. THE History which I now presume to offer to the pro- fession of the law, is an attempt to investigate and dis- cover the first principles of that complicated system which we are daily discussing (a). It has happened to the law, as to other productions of human invention, particularly those which are closely connected with the transactions of mankind, that a series of years has gradually wrought such changes as to render many parts of it obsolete ; so that the jurisprudence of one age has become the object of mere historic remem- brance in another. Of the numerous volumes that com- pose a lawyer's library, how many are consigned to ob- livion by the revolutions in opinions and practice ! — and what a small part of those which are still considered as in use, is necessary for the purposes of common business ! Notwithstanding, therefore, the multitude of books, the researches of a lawyer are confined to writers of a certain period. According to the present course of study, very few indeed look further than Coke and Plowden. Upon the same scale of inquiry, the Year-Books are considered rather in the light of antiquities; and Glanville, Bracton, and Eleta as no longer a part of our law. (o) The author, no doubt, meant the origin of those principles, his being a work, not on law, but legal history. It may be doubted, however, whether he was sufficiently alive to this distinction, and whether he did, to his mind it did not appear that the statement of the law, as it stood at successive periods in our history — was not all that was involved in a history of our law. But it is conceived that, to satisfy the requirements of legal history, it is necessary to trace the whole course and progress of our laws, so as to show their gradual development, and the causes which led to the changes to be ob- served in them. And further, that the history must be traced back to the earliest period at which civilized law can have had its origin. X PREFACE TO THE FIRST EDITION. It is in such a state of our jurisprudence that a history of the causes and steps by which these revolutions in legal learning have been effected, becomes curious and usetul. But, notwithstanding the inquisitive spirit of the present age has given birth to histories of various sciences, we have nothing of this kind upon our law, except Sir Matthew Hale's History of the Common Law, published from a posthumous manuscript at the beginning of the present century. There have not, however, been wanting historical discourses, which have incidentally, and in a popular way, examined the progress of certain branches of the law, and during certain periods ; such as those of Bacon, Sullivan, Dalrymple, Henry, and others. Sir Matthew Hale, as a writer upon English law, pos- sesses a reputation which can neither be increased nor diminished by anything that may be said of his History. "We may therefore freely observe, that it is only an im- perfect sketch, containing nothing very important nor very new. What seemed most to be expected, namely, an account of the changes made in the rules and maxims of the law, is very lightly touched (a). In short, the early period to which this work is confined, and the cursory way in which that period is treated, scarcely serve to give a taste of what a history of the law might be. Sir William Blackstone, though in a smaller compass, has given a plan of a much better history than the former; and if the one excited a wish for something more com- plete, the other seems to have traced out a scheme upon which it might be executed. It was the chapter at the end of the Commentaries which persuaded me of the utility of such a work, if filled up with some minuteness upon (o) It is conceived that the author very much undervalued Lord Hale'a history, and that, so far as it went, it far more resembled a real history of law than his own. It exhibits far more of the cause and progress of our laws, and gives a more just and comprehensive view of the materials whence our laws were derived. Hale'a account, for instance, of the true measure and nature of the effect of the Conquest upon our laws and institutions, is in- finitely more complete and more correct than our author's, and therefore ia embodied in the notes to the text. So Hale distinguishes the reigns between the Conquest and the Great Charter, especially the important reigns of Henry I. and Henry II., each of which makes an era in the liistory of our law whereas the author treats the whole of that period together, and hence fails to give a clear idea of the course of our legal history during that important period. The present Editor has made Lord Hale his model of what a legal history should be. PREFACE TO THE FIRST EDITION. xi the outline there drawn. It seemed, that after a perusal of that excellent performance, the student's curiosity is naturally led to inquire further into the origin of the law, with its pi'ogress to the state at which it is now arrived. The plan on which I have pursued this attempt at a History of our Law is wholly new. I found that modern writers, in discoursing.of the ancient law, were too apt to speak in modern terms, and generally with a reference to some modern usage. Hence it followed, that what they adduced was too often distorted and misrepresented, with a view of displaying, and accounting for, certain coin- cidences in. the law at different periods. As this had a tendency to produce very great mistakes, it appeared to me that, in order to have a right conception of our old jurisprudence, it would be necessary to forget, for a while, every alteration which had been made since, to enter upon it with a mind wholly unprejudiced, and to peruse it with the same attention that is bestowed on a system of modern law. The law of the time would then be learned in the language of the time, untinctured with new opinions; and when that was clearly understood, the alterations made therein in subsequent periods might be deduced, and exhib- ited to the mind of a modern jurist in the true colors in which they appeared to persons who lived in those respec- tive periods. Upon the same reasoning, it appedred to me, that if our statutes, and the interpretation of them, with the variations that have happened in the maxims, rules, and doctrines of the law, were presented to the reader in the order in which they successively originated; such a history, from the beginning of our earliest memo- rials down to the present time, would not only convey a just and complete account of our whole law as it stands at this day, but place many parts of it in a new and more advantageous light than could be derived from any insti- tutional system ; in proportion as an arrangement con- formable with the nature of the subject surpasses one that is merely artificial. The following volumes are written upon this idea ; and being, in that view, an introductory work, they will, I trust, be as intelligible to a person unacquainted with law books as to those of the profession. It was partly with this design that I have contented myself with a simple narrative, making few allusions to what the law XH PREFACE TO THE FIRST EDITION. tecame in later times, but leaving tliat to be mentioned in its proper place. Many inferences and discussions which seem to be suggested by our ancient laws have not entirely escaped me ; but are reserved for a place to which, agreeably with the plan of this history, I thought them better adapted. Every one who looks into our old law feels a strong propensity for remarking on the changes it has since undergone ; but when the several steps which led to those changes are traced in a continued narrative down to the present time, such observations would be premature, unnecessary, and irksome. My object being jurisprudence, and not antiquities, I have confined my researches to certain printed books of established reputation and authority, where alone I could hope to find the juridical history of the times in which they were written (a). It may not, perhaps, be unsatis- factory to the reader, who knows what respect is due to the venerable remains of our ancient law, to be told that the whole of Glanville, and what seemed to be the most interesting part of Beacton, is incorporated into this work. A few observations may be necessary to prevent the reader being disappointed in that part of the following work which treats of the statutes. The old statutes have long been considered in a remote point of view, being rarely taken into the course of a student's reading, but referred to as occasion requires, and are then understood by the help of notes and commentaries. It might be ex- pected that a History of the Law should furnish more notes and more commentaries upon this subject, as the only known means of illustration ; on the contrary, the laws of Henry III. and Edward I. are here very little (o) The author no doubt meant the materials for the History ; but, as al- ready observed, there is great reason to believe that he supposed the mere statement of the law, as it stood at successive periods, was legal history. For the authors whom he names did no more than state the law at the times at which they wrote, and the author simply copies them into his pages. That it is manifest, is not of itself history, however valuable may be the matmds they afforded for history. The author unhappily failed to appreciate a work more illustrative of our whole legal history for the period from the Saxon monarchy to the Great Charter, than any other work extant, and that is the Mirror of Justice— & work of which large portions were, it is manifest, written in the time of Alfred, and which was recomposed in the time of Edward I. Lord Coke thought very highly of it ; but our author failed to draw much information from it as to the course of our legal history. So of the Leqes Henrid Primi and Britton. In the present edition these deficiencies are sup- plied as ifar as possible in notes. PREFACE TO THE FIRST EDITION. Xlll more tlian clearly stated, in a language somewhat more readable^ if I may use the expression, than that of the Statute-book. What was before said upon the general design of the work will, I hope, satisfy the reader that nothing further was requisite on this subject. As an account of the revo- lutions in our law antecedent to the making of those stat- utes must, altogether, contain an account of the law as it stood when they were made, it follows that the reader enters upon them with a previous information, which will enable him to comprehend their import, on the bare statement of their contents. As to the opinions and prin- ciples that were founded on those statutes in after ages, to take any notice of them would not only exceed the plan of the work, but very often anticipate the materials which are to contribute towards the subsequent parts of the History. The text of our old statutes was translated in the time of Henry VIII. The ear of a lawyer, by long use and frequent quotation, has been so familiarized to the lan- guage of this translation, that it has obtained in some measure the credit of an original. Conformably with the general deference paid to this translation, I have mostly followed the words of it, except where I found it deviated from the text, or the matter required to be treated more closely or more paraphrastically. There is one point of juridical history which has been greatly misconceived by many. It has been apprehended that much light might be thrown on our statutes by the civil history of the times in which they were made; but it will be found on inquiry that these expectations are rarely satisfied {a). The lay historians, like the body of (a) Here, it is obvious, the author can hardly have fully appreciated the bearing of history upon law. No doubt it rarely happens that we have any account of the actual debates or discussions upon a law, and it is surprising, for instance, what little attention the contemporary chroniclers seem to have given to the Great Charter. But it was not the less clear that the only true exposition of that or any other ancient law is to be found in the history of the times immediately preceding it. As to modern law, indeed, what the author says may be true, that the only proper exposition is to be sought in the previous laws pn the same subject ; but that is because there is always a body of previous law which affords the most apt exposition of the new law. It is otherwise .with ancient laws, which are enacted de novo, and are very general, and of which the only possible exposition is to be found in the facts of contemporary history. Had the author read the chronicles of the times previous to the Great Charter, he would have observed this ; and not failed to apply the maxim of Montesquieu, "II Javi idairer ks lois par Phisloire, et XIV PREFACE TO THE FIRST EDITION. the people, were as unconcerned in the great revolutions of legal learning in those days as in ours ; and we now see a statute for enclosing a common, or erecting a work- house, make no small figure in the debates of parliament ; while an act for the amendment of the law, in the most ma- terial instances, slides through in silence. Yet the latter would become an important fact to the juridical historian, while the former was passed by unnoticed. I believe little is to be acquired by travelling out of the record — I mean out of the statutes and Year-Books, the parliament-rolls, and law-tracts. The following History, to the end of Edward I., was published in one volume in quarto, in March, 1783 ; the remainder, as far as the end of Henry VII., in March, 1784. These two volumes have undergone a revision, and have received some considerable additions. I have also sub- joined the reigns of Henry VIII., Edward VI., and Queen Mary, or, as it is more properly styled by lawyers, Philip and Mary (a). This brings us to the close of that period, which appears to be almost wholly abandoned to the re- searches of the j aridical historian. We have passed the times of the Year-Books and of their appendages, Fitz- herbert and Brooke, the manuals of practisers in former times ; we have even touched on those materials, to which the practisers of the present day do not disdain to owe obligations. Dyer and Plowden stand among the earliest of those authorities that are vouched in Bacon, in Viner, and in Comyns, who rarely refer to any antecedent to the reign of Elizabeth (6). Vhistoire par tea his." To fail to appreciate the bearing of history upon law, is to fail to realize the true idea of history, as applied to law. (a) The author's first work stopped there ; but he subsequently, after a long interval, added a fifth volume on the reign of Elizabeth, and he never went farther. He died, indeed, soon afterwards. (6) And, therefore, as a history of our older law, the work, as far as it went, was a complete one ; for undoubtedly, at the end of the reign of Eliza- beth our laws had reached a point of development at which they assumed an entirely new character, and started, so to speak, in a course of improve- ment, interrupted no doubt by the troubles of the Bebellion and the Revo- lution, but resumed and continued from the Eevolution to ^fie present period from the reign of Anne to the reign of Victoria. The present work displays the origin of the laws thus developed, and their progress up to that period when their character was about to alter altogether, and assume the modern aspect. The work, therefore, is, in that sense, a complete work, as a history of the law to the end of the reign of Elizabeth ; that is to say, a history of our older law. PREFACE TO THE FIRST EDITION. XV At this juncture in our legal annals, between the law of former days and that of the present, we may be per- mitted to pause for a while. A new order of things seems to commence with the reign of Elizabeth, which strikes the imagination as a favorable point of time for resuming this historical enquiry afresh. In pursuing the changes in our laws thus far, it is hoped, that if nothing is added to the stock of professional in- formation, something is done towards giving it such illus- tration and novelty as may assist the early inquiries of the student. The investigation here made into the origin of English tenures, the law of real property, the nature of writs, and the ancient and more simple practice of real actions, may perhaps facilitate the student's passage from Blackstone's Commentaries to Coke upon Littleton, and better qualify him to consider the many points of ancient law which are discussed in that learned work. J. R. Janvtary 25, 1787 (a). (a) In 1814 a fifth volume was published, without any further preface, bringing.the law down to the end of the reign of Elizabeth ; and that com- pletes the present work. As originally published, it was to the reign of Elizabeth, — that is, to its commencement. The additional volume carried i( to the end of that long reign, and so completed the history of our older law. At the end of that reign came the rise or dawn of modem law. At that era, the feudal system had become obsolete ; villenage had disappeared (the last case of it occurred in that reign) ; the trial by battle was disused (the last actual instance of it also occurred in that reign) ; the old real actions were becoming superseded by the action of ejectment ; for the ancient cum- brous remedies, actions on the case were substituted ; our judicature and pro- cedure began to assume something of their modern form ; and altogether, a new era in our legal history commenced, which may be called the era of our modem law. A work or legal history, therefore, ending with the close of that reign, might well be deemed complete as a history of our older law. " With some exceptions," says our author, " it may be pronounced that the general cast of learning, in the days of Queen Elizabeth, comes within the help of that kind of law which is now in use. The long period of this reign gave sufficient opportunity for the discussion of almost every legal question ; and the learning of former times being laid open to the world by the late publi- cations, the whole of the law seems to have undergone a reconsideration, as it were, and those parts which were then mostly m use were settled upon principle, and so delivered down to succeeding times. To us, who view things in the retrospect, there seems to arise a new order of things about this time, when the law took almost a new face. When we consider Queen Eliza- beth's reign in this light, it becomes a very interesting period in the history of our jurisprudence. From hence the commencement of modern law may be dated " (Hist. Eng. Law, c. xxxv., post, vol. v.). That reign, therefore, fitly terminates the history of the " old law," and thus the author's work was complete. The reign of Elizabeth presents a junction between the old law and the modem. There is hardly any subject of the old law which did Xvi PREFACE TO THE FIRST EDITION. not either become obsolete in that reign, or wag not superseded or modified by some statute of that reign — the basis of more modern legislation. Thus, the act 27 Eliz., as to the liability of the hundred for riots or robberies, bounded on the ancient statute of hue and cry, became the basis of the modern act 8 Geo. II., c. xvi. The acts of Elizabeth remedy faults or defects not substantial, as pleading oi; process became the basis of the act of Anne for the amendment of the law ; which, in its turn, afforded a foundation for our more recent reforms in common law procedure. There is, indeed, no part of our law, however ancient or obsolete, which has not some connection, however remote, with the present. Thus, the ancient law as to the essoin de lUtra mare shows that, at common law, a subject, although out of the realm, was liable to be sued in our courts — a principle affirmed also by the old statutes as to outlawry, and lately revived by the Common Law Procedure Act. Again, the statute 17 Edw. de prcerogcUiva Regis, is deemed the basis of the jurisdiction exercised in Chancery over idiots or lunatics (2 Inst. 14 ; Hume V. Eurton, 1 RidgwayP. C. 224 ; Lord Ely's case, ib. 519). The ancient writ of ad quod damnum formed the basis of the procedure in the Highway Act, 13 Geo. III., and the substance of it is preserved (Davison ». Gill, 1 East, 76). These are only a few illustrations whence may be seen the ad- vantage of the study of the legal history even of that older age of our law which may be deemed to have concluded with the reign of Elizabeth. The history of that age, therefore, appears to form in itself a complete work ; and with the history of the subsequent reigns, the history of modern law may be said to commence. It is the ambition and intention of the editor to continue the history to the present period. In the meantime, he has done his best in his notes to the last volume of the present work to bring the his- tory of the law down to our own times. I'REIF'A.OE TO THE PRESENT EDITION, [Being the Pre&ce to the last English Edition,] vith a Single Elimination. IN presenting a new edition of " Reeves' History of the English Law," the Editor desires briefly to explain the plan upon which it has been executed. In the first place, as the work was written the greater part of a century ago, since which time our ideas of legal history have much advanced, and our sources of information have been greatly enlarged, while the law has been so largely altered as to render the period covered by the history more remote and the law less applicable to the present than when the author wrote, the question arose whether it would not be necessary to rewrite or remodel the work. On the whole, however, it has been thought better, for many reasons, to adhere to the author's text, and there- fore it is preserved intact. But it has been necessary to insert a great number of notes, some of considerable length, in order to secure the advantages of later infor- mation and enlarged views of legal history. The prin- ciples which have governed the Editor have been, as far as possible, to exhibit the rise, the growth, and gradual progress of our laws and institutions ; and especially to trace them from their earliest origin. This appeared to render necessary an Introductory Essay on the prevalence of the Roman law in this country, and on its influence in the formation of our own ; the more so since our author 2* B xvii Xviii PREFACE TO THE PRESENT EDITION. himself, who had not entered into that subject, had in one of his notes ' indicated some sense of its importance ; and the greait historian, Hallam, had distinctly suggested it.^ Our author had entirely passed over the long period of the Roman occupation, during which the Roman laws and institutions were firmly rooted and established here ; and he passed so cursorily over the Saxon period as not to have shown how little our laws had derived from the barbarians, and how much they must have owed to the Romans. It appeared, therefore, proper to introduce the present edition by an essay on that subject ; and, on the other hand, to supplement, in the notes, the account given by the author of the laws and institutions of the Saxon Although the author's text has been preserved, his ar- rangement required to be altered. He had blended dif- ferent and important reigns. Thus he had dealt with the whole of the long period from the Conquest to the reign of John under the same head, so as not to mark the reigns of Henry I. and Henry H. ; and he had blended the two very distinct reigns of Henry VI. and Edward IV., and those still more distinct, of Edward VI. and Mary. The Editor, therefore, without having altered the text, has entitled some chapters differently, and, sometimes, trans- posed matter to the proper reign, so as to mark the dis- tinctions between the more important eras ; and he has . done his best to keep up in the notes the continuity of the progress of our laws, and to fill up any deficiencies in the history. With regard to the notes, the object has ' Vide vol. i., o. ii., p. 225. I ' " Our common law may have indirectly received greater modification from the influence of Roman jurisprudence than ita professors were ready to acknowledge, or even tjian they knew. A full view of this subject is still a desideratum in the history of English law, which it would illustrate in a very interesting manner" {Middle Ages, c. viii.). PREFACE TO THE PRESENT EDITION, XIX been to afford as mucli as possible of contemporary illustra- tion or explanation (a) ; the cardinal principle kept in view being that laid down by the author, to endeavor to look at the laws and institutions of any age by the light of the ideas of that age, and not to fall into the error of considering ancient institutions by the light of modern ideas. (o) A distinguished jurist (Sir Eoundell Palmer) has lately observed, in an address to law students, that our author was " valuable, though sometimes tedious," and it has been attempted, while illustrating the text, to render it more interesting and readable. INTRODUOTIOlSr TO THE PRESENT EDITION. IN presenting a new Edition of this work, upon " the History of the English Law, from the time of the Saxons to the end of the Reign of Elizabeth ; " — a work first published the better part of a century ago ; — it may be proper to explain the ideas and principles upon which it has been undertaken, and the views of legal history upon which it has been supplemented or corrected ; and upon which it has also been thought necessary to intro- duce it by some observations upon the Roman laws and institutions, and their influence upon the formation of our own. It seems obvious that, in any work on legal history, as it is important, as far as possible, to- trace laws and insti- tutions to their real origin, however remote, it is neces- sary to go back to the period when regular laws and civilized institutions first existed in the country, because, however much its. laws may have been (as in ours was certainly to a great extent the case) the growth of custom and usage, subject to change in course of time, yet it must be that the rise and growth of civilized customs and laws must have been mainly infiuenced and determined by the earliest civilized institutions existing in the coun- try ; the primitive source whence they were in all proba- bility originally derived. This must be more especially the case in a country which,, as was the case with our own, was still in a state of barbarism,^ conquered by a nation, like the Romans, in ' That the Britons were in a state of barbarism on the arrival of the Romans is clear from the pages of Caesar, de Bell. Gall., lib. iv., and Tacitus, in Vit. Agric, and it is idle and absurd to talk of their " laws." Montesquieu truly says : " Du temps des Bomains, les peuplee du nord de I'Europe vivai- GENERAL CHARACTER OP THE ROMAN LAW. xxi possession of a most complete and comprehensive system of government, and was for centuries subject to their rule — a portion of the Roman empire,' living under the Roman laws and institutions, and becoming first civilized under their influence. It was the peculiar boast of the Roman emperors who first consolidated and codified the Roman laws ^ that they governed the various provinces of their vast empire not ent sans arts, sans education, presque sans lois (De I' Esprit des Low, liv. xiv., c. 3) ; and he observes, " C'est le partage des terres qui grossit principale- ment le code civil ; chez les nations ou I'on n'aura pas fait ce partage, il y aura, tres peu de lois civiles. On peut appeler les institutiorts de ces peuples des moeurs plutot que des lois" (1. xviii., c. 13). Sir J. Mackintosh, in his history, describes the inhabitants of the country at the time of the arrival of the Eomans as in a state of barbarism. He points out that they grew no corn, and says : " It is vain to inquire into forms of government prevalent among a people in so low a state of culture. The application of the terms which denote civilized institutions to the confused jumble of usages and tra- ditions, which gradually acquires some ascendancy over savages, is a practice full of fallacy. It is an abuse of terms to bestow the name of government on such a state of society" (Hist. Eny., c. i.). ' The empire was divided into dioceses, under vicars (representing the Prsetorian prefect), and these into provinces, under presidents or proconsuls. One of the dioceses was Britain, and it was divided into five provinces. " Vicarius pro praefecto prsetorio mittebatur in tractum vel dioecesim aliquam aliquot in se provincias continentem. Dioecesis Thracise, etc. Fuit etiam Bomse, Italiae, Britannise, (singulis suberant quinque provincise) " (God. Just,, lib. i., tit. xxxviii. et xl. in notis.) As early as the reign of Caracalla, all the free subjects of the empire had the rights of Koman citizens. There were "comites," or military commanders, but the vicars were supreme in civil matters. "In civilibus, causis vicarios comitibus miiitum convenit ante- ferre" (Cod. Just., lib. i., tit. xxxviii., s. 1, De Officio Vicarii). The procon- suls had legates, who could decide civil or criminal matters, subject, how- ever, to revision by the proconsuls. " Legati non solum civiles sed etiam criminales causas audiant, ita ut si sententiam in reos ferendam providerint, ad proconsules eos transmittere non morentur" (God. Just., lib. i., tit. xxxv., De Officio Procomulis). The greater part of the first book is taken up with edicts as to the functions and duties of the officers of the empire or the provinces, which show a most elaborate and comprehensive system of gov- ernment, which must have spread its ramifications into every corner of the empire. From the Notitia Imperii, and from the old chronicle of Richard of Cirencester, it will be seen that the Roman rule extended over the whole country ; that there were two " municipia," nine " colonies," and upwards of one hundred and twenty stations, comprising nearly all the chief towns and cities now existing. * " Barbaricse gentes, subjugata nostra, omnes vero jjopuli legibus tam a nobis promulgatis, quam compositis, reguntur" (Pram. Inst. Just.). The Boman law was first codified under Theodosius, during the Roman rule in Britain, and the subsequent code of Justinian is of course mainly made up of edicts previous to the termination of that rule. The very object of the code was to gather up the imperial edicts, and render them available for all the numerous provinces of the empire, so far as they might be applicable, as almost all of them were, in point of principle. XXll INTRODUCTION TO THE PRESENT EDITION. merely by force, but by the influence of their rule, and that they not only subdued the barbarians by their power, but civilized them by their law. It was a law, in its nature so comprehensive, and based upon right reason and general principle, that it was not the law of one state only, it was the law of nature and of nations,' fitted by its character for universal dominion, for which reason, no sooner after the barbarian conquests did the barbarian races become civilized enough to be ca- pable of law, than this great system of law had every- where a resurrection and an ascendancy. Such was so clearly the character of the Roman law, that it was recognized in the earliest ages of Christian history, and by none so clearly, none more emphatically, than by the first fathers of the Christian church,^ and by natives of other races and distant countries subject to its rule. And it was the boast not only of the Romans, but the testimony of the most impartial writers, that the ex- cellence of the Roman laws rendered them worthy of the admiration and adoption of other nations. N^or is it to be doubted that this opinion would be shared and fol- lowed by the prelates of the Christian church, who had so powerful an influence in the conversion and civilization of the barbarian races. The general character of the Roman law,^ as expounded ^ Thua it was said by a writer in the middle ages : " Jus Justiniani prse- scriptum libris, non civitatis tantum est, sed et Gentium et naturae ; et apta- tum sic est ad naturam universam, ut imperio extincto, ipsum jus diu sepul- tum surrexerit tamen, et in omnes ae effaderit gentes humanas. Ergo et principibiis stat, etsi est privatis conditum a Justiniano" {Albericua Oentilis, lib. i., de Ju. Bell., cap. iii.). ' Thus St. Augustine aays: "His omnibus artibus tanquam vera via nisi sunt ad honores, imperiam, gloriam ; honorati sunt in omnibus ferS gentibus ; imperii aui leges impoauerunt multis gentibus ; hodieque literis et historia gloriosi sunt penS in omnibus gentibus" (Z)e Oimt.Dei, lib. v., c. xii.). In- somuch that he goes on to say : " Per populum Eomanum placuit Deo ter- rarum orbem debellare, ut in unam societatem reipublicEe, legumque per- duotum longg lat^que paearet" (lib. xviii., De Cfimt. Dei, c. xxii.). St. Au- gustine was a prelate of the African Church, and a perfectly impartial judge of the merits of the Boman law ; and that opinion which he had of it would no doubt be followed by other prelates of the church, in this or any other country. ' " Justitiam colimus, et boni et sequi notitiam profitemur, aequum de iniquo separantes, licitura ab illicito discernentes, bonos non soWm metu psenarum verilm etiam prcemiorum quogue exhortatione efficere cupientes- veram' nisi fallor, philosophiam non simulatam affectantes " (lib. i. Dig. de Just. e< Jur.). This was the description justly given of it by one of 'its greatest pro- fessors, Ulpian, and another, even still greater — the illustrious Papinian, GENERAL CHARACTER OE THE ROMAN LAW. XXlll by its most distinguished professors, after the spread of the Christian religion, was largely in accordance with those great principles of justice and morality which are recognized by Christianity, and are, indeed, common to all men ; and its character, as it would be seen adminis- tered in this country, under the auspices of some of its ablest professors, would be calculated, it may be conceived, to commend it to the reason and consciences of all, and to attract the respect, the confidence, and admiration of the barbarians among whom it was administered.^ The fundamental principles of the Roman law, as to the bases, or sources of law,^ being broad, enlightened, who was raised to the prefecture by the Emperor Severus in this country. It was Papinian who laid it down : " Quae facta Isedunt pretatem, existimar tionem, verecundiam nostram, et contra bonos mores Bunt, nee facere nos posse credendum est" (L. xv., Co. de Gondii. Inst.) There is reason to be- lieve that the later of the Roman jurists had felt the influence of the Chris- tian morality. Tertullian says of the Romans : " Eorum leges ad innocentiam pergere, et de divina lege ut antiquiore, ferme mutuatus" {Apol. Tert.). ' Thus it was a principle of the Roman law that that which long use sanc- tioned became law without being written, for long-prevailing customs become of the same nature as law by the consent of those who follow them (Just., lib. i., tit. ii., s. 59). And hence it was supposed in the Roman law that the authority of custom sprang from consent ; for what (it was asked) was the difference between the consent of the people, given by their votes, and their wilt, signified by their acts 1 [Pand., lib. i., tit. iii., De Legibus, lib. xxxU., tit. xxxiii.) * " Omne jus aut consensus fecit, aut necessitas constitnit, aut firmavit con- suetudo " {Modestmus, 1. xl.. Dig. de Legib.). And as the authority of custom was based upon consent, the foundation of all law, apart from' actual neces- sity, would, upon the Roman principle, be consent. This head of law is ap- pealed to in the Digest, lib. i., tit. iii., c. xcii., and it is thus that Ulpian ex- pounds it : " De quibus causis scriptis legibus non utimur id custodire oportet, quod moribus et consuetudine inductum est. Inveterata consuetudo pro lege non immerito custoditur, et hoc est jus, quod dicitur moribus constitutum ; nam eum ipso leges nulla alia ex causa nos teneant, quam quod judicio pop- uli receptffi sunt : merito et ea quae sine uUo scripto populus probavit tene- bunt omnes ; nam quod interest suffragis populus voluntatem suam declaret, an rebis ipsis et factis ? " ( Ulpian, lib. iC) But, as St. Augustine observes, who had well studied the Roman law : " Rei non bonae consuetudo pesaima est. Nemo consuetudinem rationi et veritati praeponat" (lib. iii., De Bwp- tismo, cited in the canon law, dist. viii., c. iv.). This consent, however, was presumed to be based upon reason and experience ; the very argument as- signed for not changing a custom without sufficient cause implied that there might be such cause. " In rebus novis constituendis evidens esse utilitas de- bet, ut recedatur ab eo jure quod diu aequum visum est" [Ul'pireedium vendere voluerit, retinere sibi transferendos ad alia loco colonos privata pactione non possit. Qui enim colonos utiles cre- duut ; aut cum prsediis eos tenere debent, aut profuturos aliis derelinquere, si ipsi prsedium sibi prodesse desperant." So the coloni were attached to the estate. But then, on the other hand, "Agricolarum alii quidem sunt adsoriptitii, et eorum peculia dominus competunt ; alii vero tempore anuorum triginta coloni fiunt, liberi manentes cum rebus suis ; et ii etiam coguntur terram colore, et canouem praestare. Hoc et dominis et agricolis utilius est " {Ibid., s. 18). And again, " Omnes fugitives adscriptios, vel colonos, ad anti- ques penates, ubi censiti adque edncati natiqne sunt; provinciis prsesidentes redere compellant" {Ibid., s. 6). But the Roman law allowed them the ben- efit of custom (vide s. 23), and by the force of custom the coloni afterwards, under the name of villani, acquired full personal freedom, and a certain tenure of their land, and were converted into the modern copyholders. THE ROMAN MANORIAL SYSTEM, XXxiii tom,^ nor, on the other hand, were they allowed to be ousted, contrary to custom. There can be no doubt that this important relation was established in the conquered provinces. Many of the im- perial edicts issued into the provinces mention its exist- ence, and show a strong desire to protect the interests of the provincials from the rapacity of the military,^ and es- pecially to protect the agriculturists ; whether the owners, or the coloni, the actual cultivators of the soil. It was entirely in accordance with the spirit of the Roman law that these lords of manors should on their estates exercise a sort of domestic jurisdiction, and hence the origin of " courts barons," immemorial incidents to manors.* These, however, were rather municipal or domestic in- stitutions of the Romans, which, it is manifest, were established here by the Romans. There were political ' Thus an edict of Constantine : " Si villa locata in emphyteusim conce- ditur non peasant coloni usurpare totum territorium ejusdem:" — "Emphy- teuticarios gravant coloni, agros prseter consuetndinem usurpantes, quos nullis culturis erudierunt," etc. ( Cod, Just., lib. xi., tit. Ixi.). So, again, " Cogno- vimus 3, nonullis qui patromoniales fundos meruerunt, colonos antiquissimos perturbari, atque in eorum locum vel servos proprios, vel alios colonos surro- gari" {Ibid.). ' For instance, there is this- edict of Theodosius and Honorius, addressed, " Comitibus et magistria milituni : " " Prata provincialium nostrorum, et pre- cipue rei privatee nostrse, perniciosum est militum molestia fatigari, ideoque lege ad amplissiraam prsefecturam promulgata, censemus, ne hoc deinceps usurpetur, super qua re universos quorum interest, convenire tua magnifi- centia non moretur neque permittat possessores vel colonos pratorum gratia qualibet importunitate vexari" {Chd. Just., lib. xi., tit. Ix., s. 3). • Lords had at first a domestic jurisdiction, in order to compel their tenants' services, and maintain peace and order amongst them. Afterwards, in imi- tation of the sovereigns' court, lords caused records to be made before their own officers of the transactions which had taken place in their courts (Traiies BUT les Omtumes Angh-Normandes, par M. Houard, p. 507, tom. 1), This necessity of a domestic jurisdiction, recognized among the Normans, would no doubt have been equally recognized among the Bomans; especially in the provinces. And this, no doubt, led to the establishment of local courts, not as might be supposed, plainly apparent. The charter of John was not observed, and the great charter of Henry III. was in 1225, containing the important enactments that assizes should be tried in the country by king's judges, and that matters of law should be determined in a fixed court at We.stminster. Bracton, who was an ecclesiastic, and had studied the civil law, was a judge in 1245, and died about twenty years afterwards, and his great treatise was probably written in the course of that period. Lord Coke speaks of it in the highest terms, as one of the great sources of our law, though he was probably not aware that it was founded on the Boman law, and that a great part of it is taken, indeed, from the Institutes of Justinian. ' Thus, says Bracton, speaking of the writ of right, "it will not sufiSce simply to say, I demand such land as my right, unless the demandant (or claimant) make out his right, and show how and by what means it has de- scended to him " {Bracton, 374, b.). Neither will it suffice to allege that the ancestor was seized in fee, unless it is added that he was so seized by right, which composes the right of property. Nor will this suffice unless he took the property ; and it will be seen how this tended to eliminate the real point in dispute, and also to see if it was fact or law. No one at all acquainted with the Eoman system can fail to see that this was derived therefrom, and as Sir J. Mackintosh observes, " It is impossible not to admire the logical art with which fact is separated from law, and the whole subject of litigation reduced to one or a few points on which the decision must turn " (Hist. Bag., vol. i.). The great feature of Bracton's work is the accurate and lucid manner in which this is followed out. 10* H CXIV INTKODUCTION TO THE PRESENT EDITION. In the time of Bracton we find the supremacy of regular judicature established, and the last remains of the rude and barbarous Saxon system virtually obsolete or abol- ished. This was done, not, indeed, by any direct abolition or sudden change, but by gradual alteration and indirect means, not the less effectual because unobserved.^ As the treatise of Glanville shows a great Advance in our laws had been made in the time of Henry II., so the treatise of Bracton shows a still greater advance had been, made in the time of Henry III.,'' and this either from the resources of the civil law, or from the gradual develop- ment, by judicial decisions of principles and doctrines deduced therefrom. In the celebrated treatise of Bracton we have the first formal treatise upon our law as a whole ^ — the first at- ^ The criminal jurisdiction of the sheriff was abolished by Magna Charta after it had probably become obsolete by the quiet substitution of itinerant justiceSj either bjr making them sheriffi or sending them into the counties by special commission to convene the courts. And so, as to civil cases, the sheriff was virtually made a king's judge by special writ in all but trivial cases, and from Bracton we learn that the sheriff exercised jurisdiction over matters which did not belong to him merely by his office of sheriff; but in such cases he acted not as sheriff, but by the king's precept, as justiciarius regis (Braeton, 154 b.). And as the suitor had to purchase this writ and pay for it, he would naturally consider that he might as well sue in the king's superior court, and have the advantage of a regular judge ; and thus the eivil judicature of the Saxons was Superseded. ' Hale says, '' We have two principal monuments of the great advance the English laws attained to under this king — viz., the tractate of Bracton, and the records of pleas, as well in the benches as before the justices itinerant, the records of which are still extant. Touching the former — Bracton's tractate — it yields us a great evidence of the growth of our laws between the times of Henry II. and Henry III. If we do but compare Glanville's book with that of Bracton, we shall see a very great advance of the law in the writings of the latter over what they are in Glanville. The proceedings are much more regular and settled, as they are in Bracton, above what they are in Glanville. The book itself, in the beginning, seems to borrow its method from the civil law ; but the greater part of the substance is either of the course of procedure in the law known to the author, or of resolutions and decisions in the courts of the bench, and before justices itinerant " (flisfc C. L., c. vii.). But Hale, in the first place, greatly underrates the proportion of Bracton derived from the civil law. According to Sir W. Jones, it ia almost entirely derived from that source, and certainly the greater portion of it. And as to the decisions of judges, which it cites, though these no doubt form some considerable part of it, yet it is to be observed that these decisions, like the doctrines of Glanville, must in the main have been de- duced from the principles and doctrines of the Boman law ; from whence else could it be derived, seeing that there was no other source to which judges or lawyers could possibly have resorted for instruction in law ? ' The work of Glanville having only dealt with part of it. INFLUENCE OF THE EOMAN LAW UPON OUR OWN. CXV tempt made to reduce it to something like system, if not to science, — and it is impossible not to see that in a great degree* it is founded upon, if not almost copied from, the Roman law. This is admitted by the historians of the Middle Ages. Thus Hallam wrote : "About the time of Edward I., the civil law acquired some credit in England, but a system entirely incompatible with it had established itself in our courts of justice, and the Roman jurisprudence was not only soon rejected, but became obnoxious " {Europe in the Middle Ages, c. ix.). The only authority, however, cited for this is Selden, and Mr. Hallam adds in a note : " Yet, notwithstanding Selden's authority, I am not satisfied that he has not extenuated the effect of Bracton's predilection for the Roman jurisprudence. 'Eo early lawyer has contributed so much to form our own system as Bracton, and if his definitions and rules are sometimes borrowed from the civilians, as all admit, our common law may have indi- rectly received greater modifications from that influence than its professors were ready to acknowledge, or even than they knew. A full view of the subject is still, I think, a desideratum in the history of English law, which it would illustrate in a very interesting manner " {Ibid., p. 828). Our author himself amply recognizes at this era the influence of the Roman law in the formation of our own : " The study of the civil and canon law had contributed to further this improvement (of the law), and to furnish considerable accessions both of strength and ornament. ' Sir W. Jones, in liis treatise on Bailments, citing Bracton, said: "I am aware he has copied Justinian almost word for word" (p. 75) ; yet Lord Coke speaks of him as one of the highest authorities on our law, evidently in entire unconsciousness that he took his law from the Eoman. Edward I., as Mr. Hallam mentions, encouraged the study of the Boman law (Hixt. of Europe in the Middle Ages, c. ix.), and in the reign of Edward II., when we have our earliest reports of the courts of law, it appears to have been cited, and on one occasion it was said by the chief justice of the Common Fleas, from the bench, that our law was founded vpon the civil law — " la ley imperiel, donques sur quel ley de terre est fondu" ( Year-Book, 5 Edward II., 148). So, Selden has preserved several instances in which it was cited, but it seems to have very much declined, and the celebrated treatise of Fortescue, De Laudibus Legvrni Anglice, written in the time of Henry VI., is written in a tone of ignorant disparagement. Blackstone admits that Bracton, Fleta, and Britton contain frequent transcripts from the Boman law {Oomm., v. i., p. 22 — Coleridge's edition). CXVi INTRODtlCTrON TO THE PRESENT EDITION. Those two laws, besides exciting an emulation in the pro- fessors of the common law to cultivate their own munici- pal customs, afforded from their own treasures ample means of doing it. Much was borrowed from them, and engrafted on the original stock of the common law ; but the manner in which this was done is very remarkable. Though our writs and records are in the language in which the Roman and pontifical jurisprudence are writ- ten and taught, there is not in either the least mark of imitation; the style of them is peculiarly their own. The use made of the civil and canon law was much nobler than that of borrowing their language. To enlarge the plan and scope of our municipal customs, to settle them upon principle, to improve the course of proceeding, to give consistency, uniformity, and elegance to the whole— these were the objects the lawyers of those days had in view, and to further them they scrupled not to make a free use of those more refined systems. Many of the maxims of the civil law were transplanted into ours ; its rules were referred to as part of our own customs, and arguments founded upon the principles of that jurispru- dence were attended to as a sort of authority. This was more particularly so in what related to personal property, while the laws of descent and purgation,^ and other parts of our judicial procedure, seem borrowed from the canon- ical jurisprudence.^ A considerable accession had been made to the original canon law by the publication of the decretals. This must have given new vogue and reputa- tion to canonical studies, and no doubt encouraged the common lawyers of that age to pursue their inquiries* in that way with more freedom. The application they made, whether of the canon or civil law, in treating subjects of discussion in the law of England, is visible from the ac- count given of Braeton. To consider particularly how much of the latter is indebted to those two systems, either for its origin or improvement, would seem to be an object of separate consideration, and might, perhaps, make a proper appendage to a history of the English law." * ISo doubt the law of England has always been entirely independent of the Roman law ; * and it has only to any ' Upon the oath of the party. ' C. viii. ' C. viii. * Thus as to dower, in the Roman or matrimonial endowment among the Bomans, it was to the husband rather than to the wife, though in our law it INFLUENCE OF THE ROMAN LAW UPON OUR OWN. CXVU extent become incorporated into our law by voluntary adoption and assent.^ The influence of the civil law upon the formation of our own, as it had no compulsory authority, could only arise from its voluntary adoption, on the ground of its own excellence. And on that ground it gained the influ- ence on our own law which, at this era in its history, led to such marked hostility, and manifest improvement.'' Whence, then, came this improvement in our law ? It could not be derived from the Norman law; for, as our author himself observes, " it was not until after the pub- lication of Glanville, and even of Bracton and of Britton, 18 to both. So though the principles of tihe law of inheritance, whether by testament or descent, were derived from the Romans, our law, except in some cities where by custom the Boman rules have prevailed, has departed from the Koman in various respects. So as to the effect of marriage, in legit- imating previous issue, for the purposes of inheritance, though by Papal constitution that effect was given to it in the Eoman canon law. Yet in the time of Glanville it was otherwise ; and he says that, by the law and custom of the realm, the son bom before marriage, " though by the canons and the Boman laws he is considered lawful heir, yet he is not so according to the law and custom of the realm, and cannot demand the inheritance by the law of the realm" (c. xv.). Upon which Lord Littleton remarks, that "it shows the entire independence of the law of England on the canon or civil law" (3 Liitht. Hist. Hen. II., p. 125). But these instances are so few that they are exceptional, and the whole form and texture of our laws and institutions is plainly Boman. ' The parliament in the reign of Henry III., when an attempt was made to alter the law upon the subject noticed, declined to accede to it. " Et omnes comites et barones, una voce responderunt quod nolunt leges Anglise mutare, quae huousque usitatse sunt et approbatse " {Stat, of Merton, c. ix.). But this refusal was based upon the ground of user, and on the same ground, as we have seen, a vast deal of Boman law has become embodied with ours, and for the very reason that the adoption was voluntary, the superior excel- lence of the Boman law is made manifest. The commons in the reign of Bichard IL declared that this country had never been governed by the civil law, which was no doubt meant in the sense of compulsory obligation or authority. But they were very little aware of the extent to which the civil law had even then been adopted into ours, and as barbarous Saxon and Nor- man usages died out, the ascendancy of Boman law became more marked. 'Thus Selden said of it — "Valet pro ratione, non pro induoto jure, et pro ratione, quantum Beges et respublicse intra potestates suae £nes valere patiuntur" {Hiat. Tithes). It was always held, in our courts, that the civil or canon law had no, force proprio vigori in suits on questions of teroporal rights, etc. Therefore, Mic. 8 Hen. IV., pi. 72, coram rege, when the Chan- cellor of Oxford proceeded according to the rule of the civil law in a case of debt, the judgment was reversed in B. B. (King's Bench), the principal error assigned being that they proceeded ''"per legem civilem ubi quili- bet ligeus Domini Begis Begni sui Anglise in quibuscunque placitis et que- relis infra hoc regnum factis et emergentibus de jure tractare debet per communem legem Anglise" {Hi$l. Cam. Law, p. 33). CXViii INTRODUCTION TO THE PBBSENT EDITION. that the Normans had any treatise upon their law " (c. 4) ; " a work," he adds, "so like an English performance that, should there remain any douht of its being formed upon our model, there can be no doubt of the great similarity between the laws of the two nations at that time " {Ibid.), But here our author forgot a fact which, had it occurred to him, would have satisfied him that the Grand ConstUr mier of Normandy was derived from the English treatises which preceded it ; viz., that, as Glanville himself men- tions, the great merit of our system of assize or trial was, that it provided a substitute for the trial by battle, which was essentially the brutal mode of trial the l^ormans had adopted — not one whit better than the savage Saxon usage of the ordeal. The new system, therefore, was not derived from the Normans, who were as barbarous as the Saxons. It was derived by development from the Roman. Arrived at this great era in our legal history, and at the era of the great reign of Edward I., which marks a still greater, it is natural to take at such a standing- point a retrospective view of our progress. And it is impossible not to be struck at this era with the fact that the main and distinctive features of the Saxon and Norman systems had already died out, or were declining and be- coming obsolete ; while all that was of Roman character or origin survived and endured. Trial by ordeal was gone; the turbulent county court, as a tribunal, was superseded ; and trial by battle was disappearing ; but the Roman systems of law and of justice were established. The best and most practical test of the Roman origin of our institutions, or how much we owe comparatively' to Roman as compared with Norman or Saxon laws, is this ; to see what are the institutions, either undoubtedly Saxon or undoubtedly Roman, which remain to this day. The institutions undoubtedly Roman — municipal and other corporations, certainly manors, and probably hundreds and counties ; a regular judicature ; and regular judicial tri- bunals, with skilled judges for the law, and jurors or sworn judges — judicesfacti — for the matters of fact — all these, and more, were Roman institutions, and they re- main. The institutions undoubtedly Saxon had gone, although the Saxon spirit which had been embodied in the old turbulent popular assemblies still survived, in- fused into Roman institutions, and inspiring them with GRADUAL COURSE AND PROGRESS OF OUR LAW. CXIX fresh vigor. So of the Normans ; all that was distinctive in their system, which seems reduced to trial by battle — since all the rest was derived from the Roman system — was already disappearing, and was doomed to vanish away, although it is true that the principle of the supremacy of royal authority was developed and applied by them, and formed a solid basis for all the improvements in our law which were afterwards attained. But this was a slow and gradual progression. So far as our law, however, in any material degree was altered after the Conquest, it was without any sudden change ; and it was gradually and in- sensibly, and almost unobservedly,^ and chiefly by means of legal decisions, developing the principles of law, which was indeed the custom of the nation. The whole course and progress of our law, up to and after the age of Edward I., when it was substantially settled as it existed from that time to the age of Elizabeth, when our author's history closes, and when, as is observed in his Preface, a new era opened, resembled that of Rome, as one of gradual development ; and, in the opinion of our most acute and philosophical historians, it exhibited, at this important period, the influence of the Roman law, which determined its whole character. Thus Sir J. Mackintosh observes : — " The progress of our common law, till the reign of Edward I., bears a strong resem- * This may be well illustrated by a reference to the law of descent. Lands held on the feudal military tenure, introduced at the Conqnest, naturally became descendible to the eldest son ; but other land — ordinary freehold land — held in free socage, as it was called, remained partible among all the sons, until long after the Conquest ; so that it is impossible to ascertain the precise period when the law was altered, or rather it was not altered at any particular period ; for it was altered thus — by holding that the land was partible only by custom. Thus Spelman says that " the Normans by their feuds settled the whole inheritance on the eldest son on account of military tenure" (Spd. Belig.,B. 3). But in land not held by military tenure it was otherwise, and thus Glanville says in such case " the inheritance should be equally divided among all the sons, however numerous — provided the land had been aTieiently partible" {Ibid., c. 7, s. 3). "That is," as Lord Hale puts it, "the eommvm.e jus, or common right, was for the eldest son to be heir, no custom intervening to the contrary " [Hist. Cam. Law, 216). So that, as one learned writer on the subject said very truly, "the right of primogeniture made every day greater progress, until, in the reign of John, it had fairly excluded partible descent — the presumption being held to be that the land (unless in Kent, where, by a local custom recognized by general law, all land is held in gavelkind) was descendible to the eldest son until the con- trary was proved" [Robinson on Oavelkind, p. 26). Thus a great revolution was effected in the country, gradually and unobservedly, and by a mere legal artifice, without any legislative sanction. CXX .INTKODUCTION TO THE PRESENT EDITION. blance to that of Eome. The primitive^ maxims and customs were applied to all new cases, which, appearing similar to them, it was natural and convenient to subject to like rules. Courts in England, private lawyers, judi- cial writers, as at Rome, in delivering opinions on spe- cific cases, extended the analogy from age to age, until an immense fabric of jurisprudence was at length built on somewhat rude foundations. The legislature itself occasionally interposed to amend customs, to widen or narrow principles, but these occasional interpositions were no more than petty repairs on a vast building. From the reign of Edward I. we possess the Year-books, annual notes of the cases adjudged by our courts, who exclu- sively possessed the power of authoritative interpreta- tion, scarcely to be distinguished from the legislation which the tribunals of Rome shared with its imperial ministers and with noted advocates. In a century after him, elementary treatises, methodical digests, and works on special subjects, were extracted from these materials by Littleton,' Fortescue,^ and Brooke.* So conspicuous a station at the head of the authentic history of our unin- terrupted jurisprudence, has contributed, more than his legislative acts, to procure for Edward the name of the English Justinian" {Hist. Eng., v. i.). Through all these successive changes, the great thing to be noticed is their slow and gradual character, and the careful manner in which they were each evolved, so to speak, out of actual experience and practical wisdom.* ' Littleton's Tenures, temp. Hen. VI., the BuWect of "Coke's Commentaries.^ ' De LavMmi Legum AngluB, temp. Hen. VII. ' Brookes Abridgment of the Year-books, temp. James I. The historian per- haps meant Fitzherbert. * Sir James Mackintosh more than once remarks upon this ; and he ob- serves even of the Great Charter, " It was a peculiar advantage, that the consequences of its principles were, if we may so speak, only di-scovered gradually and slowly. It gave out in civil occasions only bo much of the spirit of liberty as the circumstances of succeeding generations required — as their character could safely bear" (Hist. Eng., vol. i.). . So as to the con- stitution of Henry II. sending the judges on circuits or itineraries, he ob- serves that, "This, like others, appears only to have given authority and universality to practice occasionally adopted before" (Ibid.). Our law has always been customary, which implies gradual growth and formation. "The consuetudinary, or common law," remarks the eminent historian elsewhere, " consisted of certain maxims of simple justice, which we are taught by nature to observe and enforce, blended with certain ancient usages, often in themselves convenient and equitable, but chiefly recommended by the neces- sity of adhering to long and well-known rules of conduct" {Ibid., p. 274J. RISE AND PROGRESS OP THE FEUDAL SYSTEM. CXXl This, indeed, is the great les^n to be learnt from the study of our legal history, as it was one of the chief ad- vantages of our law, this facility of growth, of progress, and of happy adaptation to the wants of every age. This, indeed, is the way in which, in a free country, institutions are developed, so to speak, gradually, by com- mon agreement and tacit consent, from the results of practical experience.* The whole history of our law is a ' record of this process of development ; the true merit of our free Saxon constitution is that it allowed of it, and left scope for it ; and the great defect of our author is that he lost sight of it. This has already been illustrated with reference to our judicial system, and may be remarkably illustrated with reference to the feudal system. The great feature of the era marked by the Conquest, is the commencement of the movement which was completed in the reign of Edward I., in the assertion of the civil supremacy of the sovereign power ; and the most important aspect of this movement, and one in which it has produced consequences most per- manent and most important, was its relation to the ad- ministration of justice; but it was also, and first, con- nected with the development of the feudal system,^ and ' This is pointed out by Sir James Mackintosh in a passage well worth quoting. "Governments are not framed after a model, but all their parts and powers grow out of occasional acts, prompted by some urgent expe- diency, or some private interest, which in the course of time coalesce and harden into usage; and thus this bundle of usages is the object of respect, and the guide of conduct, long before it is embodied and defined, and en- forced in written laws. Government may be in some degree reduced to system, but cannot flow from it. It is not like a machine or a building, which may be constructed entirely and according to a previous plan, by the art and labor of man. It is better illustrated by a comparison with vege- tables, or even animals, which may be improved by skill or care, but cannot be produced by human contrivance. No government can, indeed, be more than a mere draught or scheme of will, when it is not composed of habits of obedience on the part of the people, and of an habitual exercise of cer- tain portions of authority by the individuals or bodies who constitute the sovereign power. These habits, like all others, can only be formed of re- peated acts; they cannot suddenly be imposed by the legislator" {Hist. Eng., vol. i., p. 72). This fine passage is the best eulogy upon our constitution, — because pointing out its best feature. ' Guizot contests the view of most historians, that the feudal system was of sudden origin, the result of the special necessities of the age; and he contends that it was the progressive development of ancient facts" {Ledt. mr la Cioitiz. en Prance, Lect. vi.). He says the history of the word "miles," which designated " knight," is a proof of this, and he cites Du Cange, who thus traces its history to the Boman age, " Towards the end of the Boman 11 CXXll INTRODUCTION TO THE PRESENT EDITION. in both respects it was remarkable for its gradual char- acter, and its Eoman origm. The common notion that the feudal system was of sud- den growth, is shown to be erroneous ; it was the result of gradual development from the grants of land by the sovereign power in the Roman times/ to those who served for the defence of the state, and was, therefore, really based upon the manorial system. Hence it was, that its development by no means interfered with that system, or with the rights and interests which had arisen out of it ; and thus these interests continued to be developed under it. The growth of the feudal system was one of slow and gradual development from simple elements ; the substance of it, tenure on military service, having existed from the time of the Romans ; and it was only elaborated by the Normans. It was the development of a system which became complex' in its character ^ from its involving so empire, milUare expressed simply to seme, to acquit one's self of service to- •wards a superior — not merely of a military service, but a civil service." And he elaborately traces the progress of the system. * It has been seen that such grants of land were made in this country by the Eomans usually on military tenure ; and our best historians — such as Palgrave and Lingard — conceive this to have been the germ of the feudal ^stem. These estates became, under the Boman system, manors; and Guizot represents the villa or estates thus held, as military tenure, and under which the villeins held by servile tenure, as the basis of the feudal system. Then the barbarians seized large portions of land comprising their estates, and granted them unto others their companions in arms as military tenure ; and through the entire Saxon laws, there are to be found traces of an infant feudal system, forfeiture to the lord, relief, etc. This was developed at the Conquest. Every owner of a manor was its "lord," and had a court baron incident to it ; and all the holders of manors were thanes or barons : those who held direct of the king being greater barons, others the lesser. ' Guizot points out that the system involved the nature of territorial prop- erty hereditary, and yet derived from a superior (as opposed to allodial property held of no one), the union of sovereignty with property, the lord having sovereign rights within the limits of his territory ; and the present civil system of legislative, judicial, and military institutions which united the possessors of feuds among themselves. And he shows how, from the fifth to the tenth century, from causes he explains, freehold property became gradually less extensive, and land became converted into beneficies ; and how, from the tenth to the twelfth centuries, beneficies became gradually converted into fiefs or feuds [Led. sur la Oiv. en France, lect. ii.). He insists, at the outset, upon its progressive formation. " No great social state," he says, " makes its appearance complete and at once. It is formed slowly and successively: it is the result of a multitude of different facts of different origin, which combine and modify themselves in a thousand ways before constituting a whole. There is this much of truth, no doubt, in the view GROWTH OF THE ROYAL POWER. CXXIH many incidents ; and one of these connected it with the administration of justice. In the legal history of this, or of any other country, nothing is so important as that which relates to the ad- ministration of justice ; and in our own legal history, nothing is more remarkable than the gradual growth of a regular system of justice, derived from the principle of supreme sovereignty, and based upon a regular judica- ture, deriving its jurisdiction therefrom. At no time was there any sudden change, and yet the ultimate result was to render the justice of the state supreme in its character, even while local in its exercise.^ And one of the most remarkable features in the legal history of the period which intervened between the time of the Conquest and the age of Edward I., is, that along with the growth and development of the feudal system, founded on what may be called a military policy, there was a gradual growth and consolidation of the sovereign power,^ by reason of a great social necessity ; and thus a more regular judicature, and a more settled and satisfac- tory administration of justice. The connection of the subject with the administration of those who attribute the feudal system to a special exigency of the times, that its promotion was aided and urged by the exigencies of the time, as it was suited to a period of limitation and transition ; and hence it gradually disappeared when that age was over." ' As already mentioned, long after the king's justices had been used to ad- minister justice in the counties, either as sheriffs, or in the place of the sheriffs, by royal authority. Magna Charta enacted that assizes should be taken in the counties, and that such pleas should be determined by a fixed tribunal. The result was, that the civil justice of the state, at the assizes, superseded the county court, in all important matters. Then the custom arose of com- pelling suitors in the county courts to sue out a writ from the crown to the sheri^ to give him jurisdiction by making him a king's justice in the case, if it was of more than small value : and this was fixed by custom at forty shillings — a sum, however, equivalent probably at the least to £50 in our own day. ' Guizot traces this progress, and describes this necessity very skilfully in his lectures upon Civilization in France (lect. 10-15) ; and although he speaks particularly of France, all that he says is equally applicable to Eng- land, as our legal history will abundantly show. He traces the progress of the royal power as giving to royalty its character of a public protector, and as the fountain of the justice of the realm ; and what he says of Philip Augustus, is eminently true of our Edward I. Under the ro;^al power, he shows that the judicial system arose, and a regular administration of justice, under an order of persons — the judicial order — specially devoted to it, and having a general jurisdiction derived from the sovereign power. All this took place equally in this country. CXxiv INTRODUCTION TO THE PRESENT EDITION. of justice was tMs, that according to the strict principle of the feudal system, each lord exercised the judicial power in his own territory or domain,* as between his own tenants, or, in some cases, between them and their lord : a jurisdiction, however, it will be obvious, necessar rily limited, and extremely rude and unsatisfactory, and only suited to domestic matters. The feudal system had nothing like a regular judicial system, or a regular ad- ministration of justice. It involved, however, this great principle, which was carried out by Magna Charta, that a man should be judged by his peers or equals. So, with reference to our political system, the same principle of gradual progress and progressive growth may be illustrated. Nothing could be compared in importance with the judicial system, except the political ; ^ and that also, like the other, was of slow growth and gradual development: from first rude elements into an organized system ; from rude popular assemblies into regular constituted bodies. The political system, like the judicial, arose out of experi- ence of the evils of the feudal ; and just as the practical ^ The principle was, that men should judge each other, of the same rank. Thus the tenants in the lords' courts judged disputes arising among them- selves, or even between their lords and themselves, if arising out of the feudal relation. Otherwise, the question must be determined in the coMt of the lord's superior. The judgment by peers was essential, as Guizot says, to the feudal system. But then, as he also pointed out, there was no regular judicial system, no order of judges, no class of men charged with judicial duty ; while, on the other hand, the execution of judgments was a mere appli- cation of irregular force. There were, as he expresses it, no judicial guaran- tees by peaceful procedure (Lent, aw la Civ. en Prance, leot. 10). Hence arose, as he shows, a general sense of the necessity for some complete jurisdiction which should comprehend all classes of cases, and some regular system of justice, which should deal with them judicially ; and this could oidy be de- rived from the sovereign power. ' Allusion is here made, of course, to the rise of a legislative assembly, founded upon popular election. There is a masterly sketch of it in the his- tory of Sir J. Mackintosh (v. i., o. 5), who shows its gradual rise from the time of the great council of the Saxons and Normans, to the regular return of popular members in the age of Edward I. He cites from Bracton some words in which allusion is made to that council: "Legis habet vigorem, quicqnid de consilio et consensu magnatum, et reipublicse commune sponsione, authoritate regis, juste fuerit definitura" (lib. i., c. 1, fol. 1.). And he traces its rise partly from the feudal system itself, in this way, that the scutages and aids under that system were levied by the consent of the tenants ; that the crown, by degrees, exacted talliages from those who were not military tenants; and that this led by degrees to grants of subsidies by representatives of the counties and the burghs, and thus to a House of Commons. GROWTH OF THE POPULAR POWER. CXXV social necessity for regular judicature, and a comprehen- sive administration of justice, led to the establishment of the courts of sovereign jurisdiction, so the political necessity for a regularly constituted body of representa- tives to assess feudal impositions, and adjust feudal bur- dens, led to the constitution of popular elective assemblies. For electors, or for jurors, some great constituent body of freemen, it appears, was required ; and the same con- stituency originally served for both. The two systems had this in common, that they were both, necessarily, in the main, based upon the same great constituency : the freeholders in the counties, the burgesses in the towns and cities. These bodies, from whom the juries came, were also the bodies upon whom the political franchise was ultimately conferred.^ They formed, then, the great mass of the free ^ Thus Sir J. Mackintosh points out that the suitors. at the county court — from whom it has been shown the juries came — became afterwards the voters at county elections ; and that, as the suitors acquired votes, the whole body of the freeholders becaine the constituencies in counties. And some part of the same process, he thinks, may be traced in the share of represen- tation conferred on the towns. These communities had retained, he says, some vestiges of their elective forma, and of that local administration, which had been bestowed on them by the civilizing policy of the Boman conquer- ors ; and in England, charters were early granted, which exempted towns from baronial tyranny, and recognized their local laws. The boroughs, however, were part of the ancient demesnes of the crown, and were subject to the feudal incidents. Talliages were levied, and subsidies demanded; and this led, as in the counties, to their sending representatives to parliar ment. When the consent of parliament was made necessary to the levy of talliage, of subsidies, and, in effect, of all t^xes, as well as of the feudal dues, in the latter years of Edward I., the burgesses became integral and essential parts of the legislature {Siat. JBng., vol. i.). The burgesses and freeholders formed the body of the electors, as they did of the jurors ; and as, at the same time, freeholds had become divided, and many of them were small, qualifications were deemed necessary in order to secure men of substance. It is very observable that the earliest legislation on this subject had reference to jurors ; and there was an act of Edward I., the first of a long series of similar acts, directed to secure substantial men for jurors. In the reign of Henry VI., the well-known act was passed which required a qualification for electors of knights of the shire, the qualification being an annual income from freehold of forty shillings, the same sum, as already shown, fixed for the exclusive jurisdiction of the county court, and equal to £50 at the present day (vide p. cxxxL). In the reign of Edward IV., copyholders were held to have legal customary rights to their tenements ; and about the same time, leaseholders, likewise, had their estates fully recognized and protected in law ; and in later times, copyholders and leaseholders, to a certain amount, were admitted as jurors and electors. Here we see the alteration of laws in order to adapt them to the altered circumstances of society, and preserve the substantial identity of institutions : — all based on the same general principle, 11* CXXVi INTRODUCTION TO THE PRESENT EDITION. subjects of thes realm, at a time when to be a freeholder was to be a freeman, and when the only freemen were free- holders. In later times, when, on the one hand, freehold- ers — by reason of the division of estates, and the mode of emancipation — had multiplied, and many of them were holders of very small properties, qualifications be- came required; and, on the other hand, as the villeins acquired customary rights, and became merged in the modern copyholders ; and, as leasehold estates became stable, they became virtually as much entitled to judicial or political franchises as freeholders, and became included among the constituencies of the j urors or electors. But the system remained, in substance, the same, through all these changes, and laws were only altered by reason of changes in the circumstances of society, and in order to preserve the substantial identity of our institutions. In a word, laws were altered, that institutions might be maintained. As gradual progress and slow development marked the (jharacter of our legal history from the Conquest to the reign of Edward I., it was equally so from the age of Edward I. to the reign of Elizabeth, which closes our author's history. As the former period was marked by the gradual development of the feudal system, so the later period was marked by its slow and gradual decline ; ^ and as the former period was marked also by the establish- ment of a general judicial system, based upon the supremacy of sovereign power and authority, so the latter period, long as it was, hardly had elapsed before its entire aseendancy was attained.^ The progress of decay was as slow as that of growth. Old systems were rarely ever abolished, and were left to become obsolete, and died away as they had arisen up — by slow degrees. that of founding our judicial and political syatema on the broad and solid ground of a substantial interest in the property and liberty of the country. ' In the reign of Elizabeth, the feudal system had become in a great de- gree, if not entirely, obsolete ; and the last instance of a claim of villenage occurs in the reports of that reign (Yelv. Reports, 2). So in this long reign the last instance occurred of " trial by battle," which was not abolished until our own day; and so as to "wager of law," (by the oath of the defendant), the remains of the Saxon system of compurgators. So also in this long reign the local criminal jurisdictions (save such as were derived from royal author- ity) died out {vide Ckispe v. ViroU, Yelverton's Beportg), never having been directly abolished. ' The state system of justice was left to assert its superiority over the other, only by reason of its superiority. GRADUAL GROWTH OP TRIAL BY JURY. CXXvii During this long period, the anomalous jurisdiction of those local courts, which had existed in most of our villages and towns from the time of the Romans, and many of which had criminal jurisdiction in capital cases, gradually died out, save as to the local jurisdiction, to which the county court had virtually been limited, and except as to the civil courts of some great cities, as Lou- don and Bristol.' This, however, it must again be observed, was by a slow and gradual progress ; and to observe and trace this progress is the great object of legal history. No institution — at all events none which endured — was all at once established ; none was all at once abolished. Every change, either in the way of abolition of old insti- tutions or the introduction of new, was gradual and pro- fressive. Each alteration advanced by degrees from its rst germinal element and imperfect form, on its original introduction, until it had reached its final stage of devel- opment into a perfect and settled institution. Thus it was, for instance, with trial by jury,^ which, in its -present , ' The jurisdiction of these courts was in ancient times criminal as well as civil ; and hence, in the reign of Edward IV., there was an instance of a capital execution by sentence of a court-baron. In the time of Eichard III., we find it mentioned in the Tear-Book that the steward of a liberty had executed a man under color of what the Saxons called " engfangenthief" or taking a thief in the act, within the manor or other liberty ( Year-Book, 2 Bichard III., f. 9, s. 10). So, as lately as the reign of Elizabeth, it was ad- mitted that the local court of the cinque courts could try and execute a man for murder committed within the liberty, provided he could be taken there ; for otherwise he could only be arrested and tried at common law (Orispe v. ViroU, Yelverton's Reports. 13). ' All through the Saxon laws, its first germ or element can be traced in the usage of selecting such of the suitors of the county court as had any knowl- edge of the matter, and making them sworn witnesses or jurors. Before the Conquest, it was the usage in criminal cases to swear, and even after the Conquest it was adopted in civil cases. From that step, however, to trial by jury in the latter sense of the phrase, there was a long interval ; for these jurors were witnesses, and if there were no witnesses, there could be no jurors. The earliest mention of a trial. by jury, says our author, that bears a near resemblance to that which it became in after times, is in the Consti- tutions of Clarendon, where it is directed that the sheriff " faciet jurare duo- decim legates homines de vicineto sen de villa quod inde veritatem secundum conscientiam suam manifestabunt," (1 Beeves' Hist. Bng. Law, 335). The proceeding was " per recognition em," or by recognition — of their own knowl- edge. Some, or all, might know the truth of the matter, or might be igno- rant of it. If none of them knew anything of the matter, and they testified the same in court upon their oaths, the court resorted to others, until they found those who did know the truth. If some were acquainted with the facts, and some were not, the latter were rejected, and others called in. And all who were called in were sworn not to speak what was false ; and the knowl- eXXVlii INTRODUCTION TO THE PRESENT EDITION. farm^ was never establislied or set up, but grew by de- grees, from its first form into its present, in the course of several centuries. The two great difficulties in the way of an efficient and satisfactory administration of justice were as to the proper mode of trying questions of fact, and as to the method of securing certainty and uniformity in matters of law ; it took centuries to settle and to solve. It may appear easy to hear witnesses ; but the difficulty has always been great of deciding upon contradictory testimony, and discrimi- nating the balance of credibility.^ And it was not until edge they were expected to have of the matter must have been from what they themselves had seen or heard, or from declarations of their fathers, such evidence as claimed equal credit with that of their own eyes or ears, " per proprium visum suum, et auditum, vel per verba patrum suorum, et per talia quibus fidem teneantur habere ut propriis " (OlanviUe, lib. ii., c. 17 ; Bi'.eiiPS,3S2,;Braaon, De Legibus — Be Assise). That in the time of Henry IT. the jurors were still witnesses, is clear from the 25-eaJtse of G-lanville, who treats of trial by jury in the curia regis, the king's superior court, and calls the jurors "recognitors," because they "recognized" of their own knowl- edge ; and when he has to deal with the case of their having no knowledge of the matter, betrays considerable perplexity (c. 14). So in the Mirror, where ordeal and trial by battle are mentioned as modes of proceeding resorted to from necessity, where there were no witnesses of the matter, so that there could be no trial by jury. So Bracton, temp. Henry III., long after Magna Charta, speaks of the jurors as deciding upon what they had seen or heard (lib. iv.). And it took probably at least another century, if not more, before juries were of sufficient intelligence to listen to and decide upon eeidence. This stage in the history of trial by jury had, however, been reached in the reign of Henry VI., because we find Fprtescue, his chancellor, describing trial by jury as a trial by evidence; and in the Year-Books of that reign there is a case about showing a man evidence in a lawsuit ( Tear- Book, Hen. VI.). But this development, it will be seen, took ages. From the time of Ethelred to Edward III. is a period of five centuries. That trial by jury arose out of the court of the hundred is manifest from this, that by the course of the common law the jury must always have been composed of hundredors, unless there could not be sufficient impartial jurors there- from, in whicli case the writ of decern tales was awarded, to summon jurors from the adjoining hundred {Tear-Book, 3 Hemry VI., 39). An essential quality of a juror being that he should come from a place as near as possi- ble to the place where the matter arose ; at all events, out of the hundred (Oa. lAtt., 155). So that it came to this, that the common law jury were simply tweke of the hvmdredors sworn. Up to the time of Elizabeth it was' a cause of challenge to a juror, that he was not a hundredor { Waters v. Walsh, BendL, 263). The_ jury, indeed, must have come de vieineto, from the vicin- age of the place within the hundred where the matter arose, as from a vill or manor [Oo. Lilt., 125) ; but it must have come from the hundred. It was not until the 4th and 5th Anne, c. xvi., s. 6, that it was enacted that the want of hundredors should not be a cause of challenge to a jury, and that they might come from the body of the country. ' It was for ages a firmly rooted rule of the law that the jury must come from the " vill," or vicinage, a rule plainly derived from the old system of GRADUAL GROWTH OF TRIAL BY JURY. CXXIX tte people had acquired some experience in the adminis- tration of justice that this difficult duty could be exer- cised by them, which is of the essence of trial by jury. Then, and not until then, its advantages were fully at- tained, and this it took several centuries to attain. All the advantages of a local tribunal were gained, it was considered, hj sending a case down for trial, (where there was no special reason why it should not be so), into the county, to be tried, and having a jury from the vill or vicinage, (as it was called,) where the matter in dispute arose, in order that it might be tried by neighbors of the parties, with such knowledge of them and of the subject- matter as might either enable them to decide the case of their own knowledge, or serve to test the credibility of the witnesses brought before them to give evidence. On the county courts, held in the hundred, from month to month, or in which the neighbors from the hundred where the matter arose would be called upon to testify. Hence a fixed rule that there must be hundredors upon a jury, which existed until Lord Somers' act for the amendment of the law. The rule originally arose no doubt from the principle that jurors were witnesses, and, of course, to be witnesses they must come from the neighborhood, and the nearer, it was thought, the better. And even at a later period, when jurors had evidence given, and no longer decided on their own mere knowledge, their knowledge of the parties, it was thought, would assist them in judging of the testimony. This is well put by Fortescue, c. xxvi., " Twelve good and lawful men being sworn, etc., then either party by himself or his counsel shaU open to them all matter^ and evidences whereby he thinketh that he may best inform them of the truth, and then may either party bring before them all such witnesses on his behalf as he will produce . . . not unknown witnesses, but neighbors," etc. And then, in c. xx viii., " The witnesses make their depositions in the presence of twelve credible men, neighbors to the deed that is in question, and to the circumstances of the same, and who also know the manners and conditions of the witnesses, and know whether they be men worthy to be credited or not." At that time, it wiU be observed, the jury had ceased to determine merely upon their own knowledge, and had evidence given : for there are cases in the Year-Books at that time as to obtaining of evidence. Moreover, there is a case in the Year-Books that a man may enter another^? park, to show him evidence in a lawsuit ( Year- Book, 17 Hen. VI.). The theory of trial by jury is thus explained by Hale : " In this recess of the jury, they are to consider the evidence, to weigh the credibility of the witnesses, and the force and e£Scacy of their testimonies, whence they are not precisely bound by the rules of the civil law — viz., to have two witnesses to prove every fact, (unless it be in cases of treason), nor to reject one witness because he is single, or always to believe two witnesses, if the probability of the fact does, upon other circumstances, reasonably en- counter them ; for the trial is not here simply by witnesses, but by jury ; nay, it may so fall out that a jury, upon their own knowledge, may know a thing to be false that a witness swore to be true, or may know a witness to be incompetent or incredible, though nothing be objected against him, and may give the verdict accordingly" (Hale, Eist. Com. Law, cited in De Lolme on the Const., c. 13}. I CXXX INTKODUCTION TO THE PKESENT EDITION. the other hand, if the suitors were desirous of resorting to the old system of arbitration by neighbors,^ it was always open to them to do so, by referring their cases to such arbitration, on the principle of mutual selection and assent. This principle, indeed, has never heen abandoned in our legal system ; but the domestic jurisdiction of arbi- tration has always been maintained. Thus, by slow degrees, and in the course of several centuries, the institution of trial by jury, as it now exists, was ultimately established. So as to the ascendancy ac- quired by the king's courts as courts of ordinary juris- diction ; it was only acquired by slow degrees and gradual progression. By degrees it became established as a rule or maxim, quite contrary to ancient usage,^ that without ' Thus in the Tear-Book it was said, speaking of challenges to jurors, " If the plaintiflf and the defendant do both refer themselves to the arbitration of certain persons, to act for both, it would be good, that is, where one side chooses one and the other another ; there, although they are to be on differ- ent arbitrations, yet as each is unknown to the other, it is good cause of challenge" ( Year-£ook, 23 Henry VI., 39). Arbitrations have always been allowed in our law, although some attempts were made to confine their juris- diction (14 Sen. IV., 19). In Lord Coke's time it was not unusual for men to agree that diflferences between them should be referred to the arbitration of "neighbors" (Co. Lilt., lib. i., c. vii., s. 67, p. 53) ; and although questions were raised as to the power to refer future differences, no question was ever raised as to 'present differences. ^ For before the Conquest there was no other court but the county court; and even after the Conquest suits relating to land to any extent came into that court, as was seen in the celebrated case relating to the Bishop of Eochester's lands, which is mentioned hj all historians as tried in the county court; and so of other cases, although, if they concerned the sheriff, or for any cause could not be properly or fairly tried before him, a king's justiciary was sent down toAoH the court, as in the first case mentioned, and in others recorded of the time. The jurisdiction between lord and tenant was in the court of the lord; but where different lords claimed, the suit could only come into the court of their superior lord, and of course the ultimate court was that of the lord paramount — the king. By degrees it became estab- lished that the sheriff could not hold plea of land without the king's writ, whence it is said by Bracton, temp. Henry III., that in such cases the sheriff sat, no< as sheriff, but as king's justiciary (Braelon, fol. 176). Then, as we find from the Mirror of Justice, after justices itinerant had been sent (in the reign of Henry I.), suits of too high a nature for the sheriff, as suits relating to land, were deemed to be and were suspendable until the coming of the king's justices into the county (Mirror, c. ii., s. 28). Then, in the time of Henry II., when a curio regis (the exchequer) was established, chiefly for suits as to land, those suits were naturally brought there, the king's writ being required to bring them in the county court. Thus by slow degrees the maxim became established, as Fleta expresses it, that without a king's writ liere was no warrant of jurisdiction in land. Now, a king's writ meant a fee to the king, for fees were charged for his writs (which the Mirror bitterly complains of) ; and a principle so valuable to revenue was not likely to be GRADUAL GROWTH OF TRIAL BY JURY. CXXxi the king's writ there could be no jurisdiction over suits relating to land, a doctrine no doubt partly deduced from the principles of the feudal system, which made the court of the superior lord the tribunal for controversies between inferior lords which could not be determined in the courts of either. Then as regards personal actions, the rule which limited the jurisdiction of inferior local courts, courts baron, or the like,* to cases not exceeding the amount of forty shill- ings was applied to the county court, which, at the time the supposed rule must have originated, was the only court of ordinary jurisdiction. Even, however, if the jurisdiction were limited to forty shillings,^ it is certain (though it is difficult to form a lost sight df by the Norman sovereigns. So, in the reign of Edward III., it was held that if upon writ the question of title arose, it should be deter- mined in the county ; but otherwise, if upon plaint, it should be removed into the court of the king ( Year-Book, 30 Ed. III., f. 28). 'That the rule originally applied only to these courts appears plainly from the Mirror, which, in describing the jurisdiction of inferior courts, temp. Edward I., first mentions the county courts, saying nothing of any limitation of jurisdiction. Then it proceeds — "The other inferior courts are the courts of every lord, to the likeness of hundred courts, and also in fairs and markets in which justice is administered without delay, in which courts they have cognizance of debts and of such small things as pass not forty shillings in value (c. i., s. 15). But it is obvious that the rule could not have applied to the county court, the only court of ordinary jurisdiction, and which, even in the reign of Henry 1., was called " curia regis." ' In the time of Alfred or Athelstane a shilling was the penalty for steal- ing a foal or calf [Laws of Aljred, c. xvi.). An ox was worth only thirty pence ( Judicia Civitatis Londinise), and a cow twenty pence, and a sheep a shilling (a shilling being fivepence in Anglo-Saxon currency). The whole value of a citizen's jproperty was often only thirty pence, or six shillings ilbid.). The pecuniary penalty for a man's life was only thirty shillings Anglo-Saxon Laws). These instances may suffice to give an idea of the relative value of forty shillings, before the Conquest, and at the present day. And although in the Mirror forty shillings is spoken of as comparatively a small sum, that was in comparison with suits for property to any amount, and the book was completed in the reign of Edward I. Even taking that era, however, it would be difficult to give forty shillings a less comparative value than fifty pounds at the present period. Forty shillings a year was the amount of income fixed by the legislature in the reign of Henry VI., as the qualification for knights of the shire. Twenty pounds a year was the salary of a judge in those days (Foss's Lives of the Judges, vol. vi., pp. 3, 41, 54, 61 ), so that forty shillings was a tenth of it, which, as the salary of a judge is now five thousand pounds, would make the present equivalent of forty shillings not less than five hundred pounds. It is difficult to get an accurate idea on the point, and the estimate may vary between fifty and five hundred pounds ; one is the minimum, the other the maximum amount of the present equivalent. At the time of Magna Charta twenty shillings was the sum due on every knight's fee, on the marriage of his daughter, and two shillings was CXXxii INTRODUCTION TO THE PKESENT EDITION. correct idea of the relative value of money, in an age so distant as that in which such a limitation must have arisen), that the amount could not have been less than fifty pounds of our present currency. There were, however, many undoubted advantages to be gained by bringing suits in the king's superior courts, ana it was often, indeed, a matter of necessity to do so. There was one very evident ground of necessity, upon which the prerogative of justice was vested in the sov- ereign — viz., that from the supreme power alone could emanate the authority to enforce justice. This was most apparent in that age of turbulence and violence, when it was constantly necessary to resort to force to execute the law,' and when men, on the other hand, were always ready an ordinary subsidy on a " plough land," i. «., in modem language, a farm, (Wade's History of England, temp. Henry III., p. 49). Madox says the king in that reign gave his poet one hundred shillings salary ; the salary of the poet laureate is one hundred pounds, just twenty times as much in moneys numbered, but how much in point of real eflFective value, a few further data may help to show. In the reign of Edward III. the famine price of wheat was twenty shillings (Wade's History of England, p. SO), and forty shillings was the amount of the capitation tax of a baron (Ibid., p. 58). A bailiflf in husbandry received less than forty shillings a year as his salary in the reign of Henry VII. (Ibid., p. 104). Now he would receive at least fifty pounds. In the same reign forty shillings a year was all that was allowed for the whole washing in the household of a great peer like the Duke of North- umberland (JM., p. 109). In the reign of Edward IV., as we learn from the old ballad " King Edward IV. and the Tanner of Tamworth," a wealthy tradesman boasted of a horse for which he paid four shillings. Nowadays a rich tradesman would hardly boast of a horse, for which he paid less than fifty pounds. In the reign of Henry VIII. the pouhd of beef was a half- penny a pound, now it is one shilling, just twenty-four times as much, which again makes forty shillings equal to about the sum of fifty pounds. Lord Coke, in commenting upon the limitation of forty shillings, reqiarks that this was equal to six pounds in his time. But the effect of the discovery of America was vastly to decrease the value of money, insomuch that it sank two-thirds in value, and hence Hume observes that a crown in Henry VII.'s time served the same purpose as a pound in his own time (Essay on Money). But the comparison of data shows that the difference was far greater, and the lowest possible estimate makes the present equivalent of the ancient forty shillings at least fifty pounds. Lord Coke says that a day's " plough service," which, of course, comprised the use of the horses or oxen with the plough, and a man to hold the plough, and another to guide the horses, in his time, would be compensated for by eightpence (4 Inst,, v. 269). That was in the reign of James I., after the long reign of Elizabeth, when such a prodigious advance had been made in wealth. And the sum of eightpence at that time, was, no doubt, worth ten times what it was at the time of the Conquest, as it was probably worth a tenth part of what it would be worth now. A penny, in the Saxon times, was at least equal to a shilling now, and only fivepence made a shilling. ' By the common law, the sheriff was the minister of justice, and could NECESSITY FOR COURTS OF SOVEREIGN JURISDICTION. CXXXlll either to enforce or to resist it by a recourse to force. In such an age, to allow any but the officers of the State to execute it, would have led to anarchy and civil war. The turbulence which characterized the county courts continued to disturb trials in the counties, even after a more regular administration of justice had been estab- lished, and under the itinerant justices sent by the crown into the counties, and the administration of justice was often so disturbed by local " routs," ^ or by the influence take any sufficient number of men to assist him [BrooWa Ahr. "Forcible En- tree," 8 ; Year-Book, 22 Hen. VI., 37). And men were accustomed to assemble with force and arms, and either to enforce what they considered justice, or to resist it. Hence, though the law allowed of personal self-defence ( Year-Book of Edward IV., 28), and even allowed of violence in defence of property in actual possession, even to regain possession after recent dispossession, it did not allow of violent attempts to regain possession after the wrongdoer had acquired peaceable possession {Mirror, chapter on " Disseisin"), Hence the statutes of forcible entry, to prevent men from making forcible entry even into their own lands, if with arms, or terror of actual bodily violence ( Year- Book, 8 Henry VI., 9). These statutes. Coke said, were in affirmance of the common law, for, says he, the law abhors violence (3 Ook^s Reports, 12). And it was laid down that if a man came with many, even of those who were ac- customed to attend upon him, it was force ( Year-Book, 10 Hen. VII., 72). And in the Mirror it is said that not only swords and spears, but clubs and staves, were " arms." That men did in those days gather together in num- bers, armed with weapons, in order to enforce what they deemed justice, or to resist the law, is apparent from the reports in the Year-Book, and from contemporary history. Thus in the Paston Letters we find a place in dispute held by one body of armed men, and regularly besieged and assailed by an- other, and a man actually killed in the fray (Letter 281). So in the Year- Book of Henry VI. we find a case in which a case was adjourned from the assizes " because the parties in their own counties came with great routs of armed men, more as though they were going to battle than to an assize" ( Yeair-Book, 7 Hen. VI. ; 33 Hen. VI., 9). In such a state of society to allow every suitor to enforce justice would be to allow of civil war, and lead to anarchy. Hence the doctrine was established, of necessity, that it was only the ministers of the king, the sheriff and his officers, who could use force to execute the law, although under him and in his aid, the whole county could act, and thus under the statutes of forcible entry the justices of the peace were allowed to use force to remove force ( Year-Book, 21 Hen. VI., 5 ; 7 £dw. IV., 18). ^ Thus, so early as the reign of Henry I., it was mentioned as a cause of failure of justice, which drew causes into the king's court (Leges. Hen. IHm., c vii.). And even when king's justices went down into the counties, it is not to be supposed the evil entirely abated, and it truly appears it had not. The curia regis, certainly, as early as the reign of Henry II., took cognizance of causes which previously would have gone into the counties, for Glanville wrote his Treatise upon it. And the charter of Henry III. provided that the common pleas should be taken in a fixed court, and that the evil con- tinued, a case will show. An assize was wrayed before Sir Wm. Babington and Strange, in the county of Cumberland, and it was adjourned before them at Westminster, and Pulthorpe asked of the justices the cause of the adjourn- 12 CXXxiv INTRODUCTION 10 THE PRESENT EDITION. of local magnates, that it was necessary to remove cases into the curia regis, the king's superior court. Independently of the turbulence of the county court, there were various reasons for the removal of causes there- from, or from other local courts, into the king's superior courts. The power of the county court, or any local court, was strictly limited by its local jurisdiction;' whereas the king's superior court had jurisdiction over the whole country, and could send causes for trial into any county, or summon parties to attend in any county. Again, it was often necessary to remove causes from the local court, to avoid a failure of justice, on account ment, and Babington said that it was because it was a great matter, and the parties in their own counties came with great routs of armed men, more like as though they were going to battle than to an assize ("les parties en lour propre counties, viendront ove graund routs des gents armes, plus semble pur vener a battaile que al assize"), and so for danger of the peace being dis- turbed f and also for that counsel were in London, and the parties could be better served in their right, the case was adjourned ( Year-Book, 7 Hen. VI.). See Yeair-Book, 32 Hen. VI., 9, where a trial in the country was denied in a cause between the duke of Exeter and Lord Cromwell, 'because there had been a- great rout, and a greater would ensue if the trial should take place there, for my lord of Exeter is a great and potent prince in that county (un graund et prepotant prince") ( Year-Book, 32 Hen. VI., 9). The Paston Let- ters afford many instances of similar proceedings at assizes about the same period. In modern times the courts have always recognized that it is a good cause for removing a case into another county for trial, that there is a pop- ular excitement and doUbt of the possibility of fair trial. ^ Thus in an assize, where the tenant set up a release, the witnesses of which were in divers counties, the case was adjourned to the king's court at Westminster, "which had jurisdiction over tlie whole country" (Year-Book, 7 Edw. II., p. 231). Various modes were provided for removal of causes into the superior courts, writs of " pone," " recordari," or " certiorari " ( Year- Book, 7 Mw. IV., 23,34: Hen. VI., fol. 43). The plaintiff might always re- move a cause at his will without cause, for, of course, he would not needlessly delay his own suit, and there could be no disadvantage to the other party in removal of the case from the court of the county ; but the defendant could only remove a case for good cause shown (F. N. B. Beeordare, 79). Thus so early as Year-Book, 50 Edward III, it was said to Belkenap, J., if a stranger comes into the Cinque ports and commits a transitory trespass, and after- wards goes out of their jurisdiction, he to whom the trespass is done may have an action at the common law ; for it is more for his benefit to have the suit at the common law than within the Cinque ports, for they have no power to summon any man that is out of their jurisdiction, viz., in the county of Kent, or elsewhere, into the limits of their jurisdiction. And thus an appeal of felony was held to be in Kent for a murder in their jurisdiction, " because although the Cinque ports have several liberties (i. e., local courts), yet the reason of the grant of these liberties was for the ease and benefit of the in- habitants,_ and not for their prejudice" (Orispe v. ViroU, Yelverton's Bep. 13) ; and it would be for their prgudice if they could not follow murderers or debtors out of their own limited local jurisdiction. NECESSITY FOR COURTS OP LOCAL JURISDICTION. CXXXV of the deficiency of suitors or jurors, or the influence of one of the parties over them, from their being, most of them, or all of them, his tenants, or from the lord having an interest in the case, or other causes likely to prevent a fair trial.' , IS'evertheless, notwithstanding the obvious advantages to be gained by suing in the king's court, it is probable that ancient usage would have longer delayed their as- cendancy, but for some degree of legal compulsion to sue there, occasioned by the legal maxims and rules already alluded to. And there is every reason to believe that the exercise of this compulsion, and the strenuous assertion by the sovereign of the prerogative of a general control over the administration of justice, and the establishment of a regular judicature, arose chiefly from its being found that fees and amercements would constitute a considerable feource of revenue. It is beyond a doubt that the first court was the exchequer. And the sending of itinerant justices,^ and in the subsequent establishment of a su- ' Thus a case was removed from the local court where there were only six suitors ( Year-Book, Hen. IV.). So where the lord of the hundred was inter- ested, as in an assize against the mayor and commonalty of Winton (31 Assize, 19) ; so in a case as to the mayor and corporation of Coventry ( Year- Book, 15 Edw. IV., 18) ; so if all the inhabitants were tenants of one of the parties ( Year-Book, 22 JEdw. IV., 3). In such cases the evil was avoided by removal of the case into the king's court, because then the jury could be accorded to come not from the place in question, nor even from the county at large (in which case some of the inhabitants of the place might be in- cluded), but from some other hundred ( Year-Book, 3 Hen. VI., 39 / Trials per Pais, 109/ Gilherl's Hist, of 0. P., 68-71; Ccmberbaich, 3S2 ; Dance v. EUden, Cro. Joe., 650). * There can be no doubt that, in the commissions of these justices, especial care was given to direct their attention to any branches of the revenue, par- ticularly fines and amercements; and so diligently did they attend to this department of their duty that we find the people at last began to dread their approach, and actually desired the periods at which they came might be lengthened {iride Ang.-Sacr., i., 495). This led to the discontinuance of jus- tices itinerant, who went once or twice a year, and the substitution of justices in eyre, who went only once in seven years ; but their commisions again di- rected their attention to the revenue, escheats, fines, forfeitures, etc. That the exchequer was the first superior court is clear, for a contemporary writer, the author of Diahgus de Scaecario, says it was established soon after the Conquest, and it is mentioned in the reign of Henry I. (Madooi^s Exch., i., 204), while there is no mention of any other superior court of law except after Magna Charta, when, as common pleas were forbidden from being taken in any court which followed the king, as the exchequer did, the court of common pleas arose at Westminster. Until then, the records show that all suits between party and party which came up to the superior court of the king, came into the exchequer (Jfod. Exch., 686-793). The judges of that eXXXVl INTKODUCTION TO THE PRESENT EDITION. , perior court for private suits, or common pleas (as they were called), or rather that cognizance of them in the exchequer, which led to such a court, arose from this cause. Por these writs fees were charge^,* and justice was thus, and in other ways, made a source of royal revenue, which caused it to be made a branch of royal prerogative, and secured it the care and attention of the government, in order to promote and extend that from which revenue was derived. Thus the interest of the crown happily led it to make the administration of justice its special study, and from this at first some abuses, but in the ultimate re- sult many improvements, undoubtedly arose. From whatever causes, however, the ordinary jurisdic- tion of the king's courts was upheld to the utmost by legal rules and maxims, and to a great extent, no doubt, it rested upon legal principle.^ In pursuance of the same court were called barons of the exchequer, and the other judges who sat there, probably to assist in deciding common pleas, were called "justices of the bench," to distinguish them from the justices itinerant. Fines were taken in the exchequer, and the records removed there about the time of Henry IV. {Year-Book, 37 Hen. IV., 17). ' "The sauris regis," says Lord Coke, "est pacia vinculo," a truth which all our sovereigns, Saxon or Norman, caught with singular avidity, and grasped with great tenacity. And so soon as they found that justice could Be made a source of revenue, they gave every attention to it. Fees were charged for writs, and even fines for expedition ; and this is alluded to in the Sfirror as an abuse." Moreover, every possible occasion was taken for declaring a suitor be in mercy, as it was called — in misericordia regis — for any contempt of court, the effect of which was that he was liable to be amerced, and this was a further source of revenue. This is alluded to in the laws of Henry I., and there is a chapter upon it. There is also a chapter in the Mirror on the subject, and one of the clauses of Magna Charta was directed against the abuses of amercements. All this, however, tended to give the sovereign an interest in enforcing a regular administration of jus- tice, and in establishing a regular judicature for the purpose, That this was so is shown by this, that the very worst and most rapacious of our Norman sovereigns showed a great regard for the administration of justice. Thus Hale states as to John — " This king endeavored to bring the law and the pleadings and proceedings thereof to some better order than he found it — for saving his profits, whereof he was very studious — and for the better re- duction of it into order and method, we find frequently in the records of his time, fines imposed, pro sttUti loquio, that is, mulcts imposed by the court for barbarous pleadings, whence afterwards arose the common fine, pro ptUchre pUuitando, which was, indeed, no other than a fine for want of it " [Hiit. Com. Law, 7). All this was of cour.se illegal ; and these were the kind of exac- tions, no doubt, intended by the article in Magna Charta, " NuUi vendemus, nuUi negabimus, aut differemus rectum aut justitiam." ' So early as the reign of Henry I. the county court was called curia regis (Leges Henrici Primi, o. xi.), yet counties existed before the earliest times of EEI6N OF EDWARD I. AN ERA IN OUR LEGAL HISTORY. CXXXvii policy, it became firmly established in our courts that all jurisdiction, even in the smallest and most ancient local courts, emanated from the crown, so that even the leet, which was said to be the most ancient court in the realm — and was far more ancient than the monarchy — was said to be the king's court, as part of the justice of the realm. Under Edward I. the principles which had been estab- lished as to the administration of justice were pursued and carried out; the jurisdiction and the judicature of the superior courts of law were settled;* with the impor- the Saxons, and the courts of counties arose before there was any united monarchy. " Le leete est le plus ancient cour in le realme " ( Ymr-Book, 7 Hen. VI., 12). It was as ancient as hundreds, which undoubtedly existed before the time of the Saxons (whose earliest laws speak of them as already existing), so that it was more ancient than the monarchy itself. So of the courts baron, as ancient as manors, which belong to the time of the Romans. Yet even the leet was said to be the court of the king (curio regis), and so of courts in towns and boroughs, which have courts; they are entitled the court of the king ( Year-Book, 21 Hen. VH., p. 40). Yet the ancient style of the court baron is said by Lord Coke to have been the court of the lord. It also was a necessary consequence of the principle that the crown is charged with the duty of seeing that justice is administered, and that thus allegiance and protection are correlative. Where there is the duty and responsibility, there must be the power. And again, as the crown alone can enforce the execution of the sentences of courts, of necessity their power or jurisdiction must be derived therefrom. And again, as jurisdiction, civil or criminal, ia coercive, it is a necessary attribute of the executive power of government, as Guizot points out. Thus Rayneval lays it down that "le pouvoir jadiciaire est nne emanation du pouvoir executif " (Droit de la Nature, c. xii.). Thus our most ancient authorities of law lay it down that all jurisdiction is from the crown. Thus Fleta, "Sine warranto jurisdictionem non habent neque coercionem" (c. xxxiv.). So as the Mirror of Justice said, that jurisdiction is the power to declare the law, and that it rests with the king, because he alone can enforce and execute it (c. ii., s. 3). The county courts were in theory the courts of the king, but only in theory ; in reality they were mere popular assemblies; practically, a king's judge made a king's court. ^ Hale says of this king that, " as touching the common administration of justice between party and party, and accommodating of the rules and methods and orders of proceeding, he did the most of any king since WU- liam I., and left the same as a fixed and stable rule and order of proceeding, very little differing from that which we now hold and practise, especially as to the substance and principal contexture thereof" (Hale's Hist, of Com. Law, c. vii., p. 158). "He established the limits of the court of common pleaa, perfectly performing the direction of Magna Charta: 'Quod communia placita non sequuntur curia nostra,' and in express terms extending it to the exchequer. He settled the bounds of inferior courts, of counties, hundreds, and courts baron, which he kept within their proper limits ; and so gradu- ally the common justice of the kingdom came to be administered by men knowing in the laws, and conversant in the great courts, and before justices itinerant. He settled a speedier way for recovery of debts, not only for merchants, by the statutes de viercalorilms, but for other persons, by granting 12* exxxviii introduction to the present edition. tant addition of a provision for the reservation of ques- tions of law from the circuits for the determination of a superior court ; and the consequence was, that the devel- opment of law made such rapid progress in his reign that it marks an era in the history of our law. The result of these improvements in the judicature of the country was, that in the reign of Edward I.,* the**^ legal remedies for wrongs and injuries were well settled, and the course of the common law was known and estab- lished, so that it was no longer necessary for the great council of the realm to take any part in the administra- tion of justice, which was left to take its regular course in the courts of common law, according to their respec- tive jurisdictions, and subject to the proper correction by appeal. Hence the reign of Edward I. is a great era or epoch in the history of our law, and hence it resulted that, as in the reign of Edward I., as Hale says,^ the law received an execution for a moiety of the lands by degil (Hist. Com. Law, p. 160). That is to say, he established a species of recognizances or acknowledgments of debt, under which merchants could obtain summary execution without going through the ordinary formalities of an action ; and as to all creditors he gave a remedy against the land of the debtors, which it was thought in these times was the surest way of enforcing or obtaining satisfaction, since in those days, all persons of any substance at all had some property in land. ' " Let any man," says Hale, " look over the rolls of parliament, and the petitions in parliament, of the times of Edward I. to Henry VI., and he will find hundreds of answers of petitions in parliament concerning matters de- terminable at common law endorsed with answers to this or the like effect: ' Suez vous a le common ley ; ' ' Sequatur ad communem legem ; ' ' Mandetur ista petitio in caucellarium, vel justiciariis de Banco ; ' " and so parliament refused to review judgments given in courts of law, except in the regular course, in writs of error carried through the courts of error, as to which, it may be observed, that in the reign of Edward III. statutable provision was made. ' " The laws did never in any one age receive so great and sudden an ad- vancement ; nay, I think it, I may safely say, that all the ages since his time have not done so much in reference to the orderly settling and establishing of the distributive justice of the kingdom as he did within his reign " (Higt. Com. Law, c. vii.). " Upon the whole, it appears, that the very scheme, mould and model, of the common law, especially in relation to the administration of common justice, between party and party, was highly rectified and set in a much better light and order, bjr this king, than hjs predecessors left it to him ; so in a very great measure it \\3a contmued the same in all succeeding ages to this day. So that the mark or epoch we are to take for the true stating of the law of England as it is, is to be considered, stated, and estimated from what it was when this king left it. But in his time it was in a great degree rude and unpolished in comparison of what it was after his reduction there- of; and on the other side, as it was thus ordered by him, so has it stood hitherto, without any great or considerable alteration, abating some few ad- REIGN OF EDWARD I. AN ERA IN OUR LEGAL HISTORY. CXXxix a greater advancement than in all the subsequent periods up to the time at which Hale wrote, long after the reign of Elizabeth, where our author's history closes; inasmuch, indeed, that, in the opinion of that high authority, " the very 8cheme_, mould and model, of our law was then so settled that, in a very great measure, it continued the same in all succeeding ages ; " as undoubtedly it did to the end of the reign of Elizabeth, for which reason, doubtless, it was that our author there terminated his history. When once a regular judicature and regular adminis- tration of justice had been established, the law became developed by judicial decisions from the first rude ele- ments of jurisprudence contained in the treatise based upon the Roman law,' or judicial decisions made with the aid of principles derived from the same source, and adapt- ed by these decisions to Saxon usages and institutions. It is remarkable by what slow degrees the most primary and important principles of law were practically carried out and enforced in this country, as for instance, that fundamental principle which lies at the basis of all civil- ized justice, the supremacy of law, and the unlawfulness of force or violence for the redress of wrong, or obtaining of right. This great principle, laid down in the Roman law and adopted into the Saxon, was for centuries in a great measure ignored,^ and it was not until a much later age that it was really carried out. It is also observable, on the other hand, how, by force ditions and alterations, which succeeding times have made, which for the most part are in the subject-matter of the laws themselves, and not so much in the rules, methods, or ways of its administration" (Hist, of Com. Law, o. vii., p. 163). ' And so all these elements of law will he found to have been by degrees developed into the more complete form which our law in later ages by degrees assumed. Nor is there any more interesting branch of legal studies than the observation of this gradual process of development. This, indeed, is the great scope of legal history, and in these earlier elementary principles of law are often to be found the only true interpretation of later laws. ' Thus in the Paston Letters will be seen an account of a regular attack upon a castle in the reign of Edward IV. by a body of armed men, in order to obtain possession of it by force (vol. ii., p. 39, letter 281), and it is most remarkable that even Mr. Hallam appears to have considered it lawful. He cites Britton : " The first remedy of the disseisee is to collect a body of his friends (recoiller ducys et force), and to cast out the disseisors;" and though he notices that the statutes of Henry VI. and Richard II. are against it, he says they imply the facts which made them necessary (Middle Ages, vol. iii.). But Lord Coke says the statutes were only in affirmation of the common law, and if so, the common law followed the Soman. Cxl INTRODUCTION TO THE PRESENT EDITION. of judicial decisions, legal principles derived from the Koman law were carried out and developed into conse- quences of the most vital character, so as to amount prac- tically almost to alterations of the law, as in the instances of the judicial decisions^ which virtually converted mere villeins into owners of their lands and tenements. During the important reign of Edward I., which, above all others, marks a great era in the history of our law, in which, as Lord Hale observes, the very mould and model of our law and constitution were settled, the in- fluence of the Eoman law on the formation of our own is undoubted.* But after this reign, probably from the fact that ecclesiastics ceased to be judges, and that the laymen appointed to the judicial office were not sufficiently ac- quainted with it, its influence in our courts declined, and the result was unquestionably detrimental to the develop- ment of our law. ^ It has been seen that in the Roman law, adopted into the Saxon and the Norman, villeins were not to be coerced into services beyond such as were established by custom. This was long afterwards deemed virtually to imply that, so long as they rendered their customary services, they could not be lemoved. But even in the reign of Henry VI. it was said, as Littleton tells us, that if the lord put them out, they have no other remedy than to sue their lord by petition. But he adds, Brian, chief justice in the reign of Ed- ward IV., said that "his opinion always hath been, and always shall be, that if the tenant, by custom tendering his services, be cast out, he shall have his remedy by action ;" and so was the opinion of Chief Justice Danby (Littleton's Tenures, c. ix.). ' As Mr. Hallam observes, that wise monarch encouraged its study, and the great treatise of Bracton was based upon it, which Lord Coke regards as the basis of our common law. In the early part of the reign of Edward II., it was said from the bench that the law of England was based upon the civil law. "Que respondez vons," said the chief justice, "a la loy imperial, don- ques sur quel ley de terre est fondue?" (xear-Book, 5 Edw. II., fol. 148). In the next reign, however, a sergeant, afterwards chief baron, observed, when the civil law was cited, that he could not understand it ( Tear-Book, 22 Edw. III., fol. 37), but Blackstone admits the judge was probably ignorant of it {Comm., vol. i., p. 21), and Mr. Phillimore states that Edward I. encour- aged the study of the Boman law, and that it was often quoted in the tem- poral courts here, but that in Edward III.'s time it was quite exploded. Selden, in Fletam, c. vii., s. 9, has preserved some curious instances in which it was cited prior to the reign of Edward III., in whose time he says it was " plane neglectus rejectusque," and was unknown to the practitioners in our courts, though still Mr. Phillimore thinks it exercised some indirect in- fluence through the ecclesiastical judges or teachers. Mr. Phillimore cites with amusing contempt the sneer of " an old savage who was chief baron of the exchequer in the reign of Edward III." against the Boman law. In tlie reign of Bichard II. the commons protested that this realm never had been nor should be governed bjr the civil law, quite ignorant that all that was worth anything in it was derived from the civil law. EFFECTS OP DECLINE IN THE STUDY OF THE ROMAN LAW. CXU The cause or the result of this disregard of the Eoman law was great ignorance in the courts of law,* with such extreme narrowness of mind among the judges, that, in consequence of their contracted notions of law, suitors were driven from the courts of law, and forced to find, in an appeal to equity, that full measure of justice which was no longer to be obtained at law. How scandalously, after discarding the civil law, our courts of law perverted justice,^ can be shown even from ^ Of this ignorance many illustrations could be given. In the reign of Henry VII. a judge said from the bench " that a hundred meant one hundred men, or one hundred villa, or (me hundred parishes I " ( ^ear-Book, 8 Sen. VII., fol. 3). No man who had traced the history of our institutions from the lioman times could have fallen into such a blunder. From the Year-Booka of Edward IV., a passage might be cited in which one of the judges, prob- ably a little less ignorant than the rest, declared that it was entirely through ignorance the suitors were driven into equity ( Tear-Book, 21 Edtv. IV., fol. 21)._ It need hardly be stated that in the reign of Henry VIII. the juris- diction of equity over cases of law was assisted and established by Sir T. More. ' Thus it was said in a court of law that " If a man promise to make me a house, and do not, I shall have a remedy in chancery, and that, but for ' mis- pleading' (i. 6., ignorance), there might be a remeidy at law " ( Year-Book, 21 Ediv. IV., fol. 23). So in the plainest possible cases it was constantly said that there was no remedy at law, but that there was in chancery, where the rules of the civil law were followed. Thus, for instance, if a bond was negotiable until actually cancelled in chancery, the party had no remedy against it at law [Year-Book, Z^ Hen. VI., 13). So again, in that plainest of all possible cases, that of a man who had paid a debt and omitted to take a proper acknowledgment, — it may seem scarcely credible, but it is the fact, — that if the debt were by deed, there was no remedy at law without an ac- quittance by deed I If a man pay a debt for which he is bound by deed without taking an acquittance by specialty (i. «., by deed), he shall have a remedy in chancery/ (Year-Book, 7 Hen. VII., 11). That is, he was to be made to pay the debt at law twice over, and then sent to commence a suit in chancery to get the money back again ! This incredible absurdity was actually vindicated at the time as the perfection of right reason I Thus it was laid down in chancery: Here we adjudge "secundum veritatem rei," and not " secundum allegata ; " and if a man alleges by bill that the defend- ant has done a wrong to him, and the other says nothing, if we can see that he has done no wrong, the plaintiff shall recover nothing. " There are." said the chancellor, two powers and (kinds of) processes (or procedure) : s. potentia ordinata, et absoluta. Ordinata is as positive law, and has a cer- tain order. Sed lex natures non habet certum ordinem : sed per quemcunque modum Veritas sciri poterit ; and therefore it is called absolute procedure ; and in the law of nature it is required U. e., only) that the parties shall be present (or absent by contumacyj, and that-there shall be an examination of the truth " [ Year-Book of Edw. IV., fol. 15 ; Bro. Abr. Jurisdicdon, 50). Thus it was said in these times : " En le chancery (per le chancellor) home ne sera prejudice la per mispleadinge, ou pur defense de forme, mes secundum veri- tatem rei, et nous doyomus aduidger secundum conscientiam, et non secun- dum allegata, car si homo suppose per byl : que le defense ad fait tout a lui, Cxlii INTRODUCTION TO THE PRESENT EDITION. the language of the courts of law themselves, who ad- mitted that justice, through their own ignorance, con- stantly failed at law ; that they had come to regard form more than substance ; that even in the plainest case justice was too often obstructed or perverted by technical rules, and that suitors were driven to seek in the court of chan- cery the remedy they could no longer find at law. A rigid adherence to common law rules, sometimes not supported by any sound legal principle, but the result only of other rules, themselves entirely arbitrary,^ and a que il dit riens, si avomus conusans que il ad fait nul tort a luy, recouera riens ; et eont deux powers et proces, silicet ipotencia ordinata et absoluta, ordinata est come ley positive, come certen ordre, eed lex naturse non habet certum ordinem, sed per que meumque modum Veritas sciri poterit, et ideo dabitur processius absolutus; et in lege nature requiritur que les partis sent presents, ou que ils sont absentes per contumacy, silicet ou ils sont garnie, et font defense et examinatio veritatis " ( Year-Booh, Bro, Abr. Jurisdiccian, 50). Thus in the Doctor and Student, the first question of the doctors of the law of England and conscience is, "that if a man that is bound in an obligation pay the money, but taketh no acquittance, or if he take one, and it hap- peneth him to lose it, that in that case he shall be compelled by the laws of England to pay the money again ! " To which it is answered by the student that "it is not the law that a man in such case ought of right to pay the money eftsoons, for that would be against reason and conscience, but that there is a general rule in the law that in an action of debt on an obligation, the de- fendant shall not discharge himself without an acquittance in writing, which is ordained by the law to avoid a great inconveniemce that else might hap- pen to come to many people — that is, that every man by mere parol should avoid an obligation ; wherefore, to avoid that inconvenience, the law hath ordained that, as the defendant is chargecthy a writing, he shall be discliarged by writing" (c.xii.). As if this did not come practically to the same thing 1 It will be seen how the chancellor sophisticated the law. And if this was the law even of a chancellor, it may be imagined what the common law judges were. ' Take, for instance, the rules as to tenants in common, or copartners. As long ago as the reign of Henry I. they had remedy at law, for in the Leges Henrid Frimi, founded on the civil law, we find a section (54) : "De disces- sione sociorum civis pecuniae," we read, " Si ab qui fuerint ita socii, ut peou- niam suam posuerint in commune, et asocietate et communitate ilia discedere voluerint, afferant coram testibus quicquid habent in commune dividendum, ut si opus est super sancta jurent, quod amplius non habeant, et adquisicio- nem et adquisitium, sicut rectum est et pactum fecerunt, dividant inter se." This shows that no difiiculty could have been made at that time about any case of joint or common property, even when it was a matter of adjustment and settlement, much less when it was a question of ouster of one of the common owners by the other. But in the reign of Henry VI. it was other- wise at law. Thus LUtkton, s. 322, and Co. lAU., 323 : "Albeit one tenant in common takes the whole profits, the other hath no remedy by law against him, for the taking of the whole profit is no ejectment; but if he drive out of the land any of the cattle of the other tenant in common, or do not suffer him to enter or occupy the land, this is an ejectment or expulsion, whereupon he may have an ejectment for the moiety, and recover damages for the entry, EFFECTS OP A REVIVAL OP THE STUDY OF ROMAN LAW. Cxliii resting rather on custom than reason, too often operated to deprive the party of his remedy at law, and remitted 'him to the delay and vexation of a suit in chancery. In a later and more learned age, the age of Selden and of Spelman, the study of the civil law was revived, and the result was a great improvement in our law ; and some f df the most celebrated judgments afterwards delivered in our courts of law were derived from the principles of the Eoman law.* If or can there be any doubt that large por- but not for the mesne profits. And thus one tenant in common could not have an action of trespass against the other {Bro. Abr., " Tenants in Com- mon," pi. 14 ; S. P. Haywood v. Danes, Salk. 4), nor account, even though the other was his bailiff ( Year-Booh, 17 Edw. II., 552). So a tenant in com- mon could not be a disseisor without an actual " ouster " of his companion (Ooodlille, 2; Points, 3: Wilson, 118; Ibid., 391). So Litt., s. 323: "If two be possessed of chattels personal in common, and one take the whole to himself out of the possession of the other, the other has no remedy but to take this from him who hath done the wrong, to occupy in common, when he can see his time." So Ooke Lift, 200, a : "If one tenant in common takes all the chattels personal, the other has no remedy by action, bnt he may take them again." So Brown v. Hedges, 1 Salk., 290 ; Fox v. Hanbury, Cowp., 448. ' For example, the celebrated judgment of Holt in the great case which settled the law of bailments, the case of Coggs v, Bernard (1 Lord Raymond's Rep., 709), which Mr. Hargreave called a most masterly view of the law of bailment (Co. Litt., 896, n. 3). Sir W. Jones, in his Treaiise on Bailments, observed that it was in a great degree based on Bracton, who was derived from Justinian, and the judgment certainly is based entirely on the civil law. A very learned writer of our own time says that equity formed an in- gredient in the Boman law, and was thence infused in some degree into the common law {Spencers Eq.Jur., 411). As a matter of fact there can be no doubt that there was the most remarkable resemblance between the Boman and the common law, upon a great variety of most important subjects. As to the rules of descent of real property, they were substantially the same, until the common law was altered as to real estates by the feudal system, and the custom of primogeniture, introduced, no doubt, with reference thereto. And the Boman rule was retained in substance as to personalty, and restored by the statute of distributions. Then as to lineal descent, the Boman law provided certain precautions to prevent frauds upon the real heirs, by frauds of widows pretending to be with child (Pandects, lib. xxv., tit. 4), and hence our common law writ, De ventre impiciendo. Again, the Boman law as to services and servile tenures, and as to servitudes, formed the basis of our own law of manors and copyholds, and our whole law of easements. So as to the Boman law of limitation or prescription, which was always recognized by our law, though fully established by old statutes. The principle of the common law, on which the statutes of limitation were founded, was the presumption in favor of possession, which is derived from the Boman law (Pand., lib. xliii., tit. 17). And this principle in Bo- man litigation, as in our own, threw the onus on the claimant until he had established his right, when the possessor had to show a better title. Then there is the remarkable law of Ethelred. " He who sits without contest or claim on his property during life, let no one have an action against his heirs after his day " (s. 14). " Where the husband dwelt with- exliv INTBODUCTION TO THE PRESENT EDITION. tions of our law can be traced to that source, to be found in the Saxon laws, and were afterwards developed into a complicated system of rights and remedies as to real prop- erty, which, having reached to so great a pitch of refine- ment, was only swept away by a statute passed in our own times. In the civil as in the criminal branch of our law, there are entire heads of law, peculiar in their character and in their terms, which have been in our law from the very earliest times, and which by their very terms are ob- viously derived from the Eoman law.* Some of the processes of our law, which we suppose to be most entirely the inventions of our common lawyers, will be found to bear such a remarkable resemblance to Roman usages as to justify the persuasion that those usages suggested them.^ The main importance, however, of the study of the out claim or contest, let the wife and children dwell unassailed by litiga- tion I but if the husband before he was dead, then let the heira answer, aa he himself should have done if he had lived" (Canute, c. Ixiiii.), which was enacted in a law under Canute, and was retained in our law under the title of right of entry " tolled " or taken away by descent, or a continual claim, until it was abolished by the Eeal Property Act, 3 & 4 William IV., cap. 27. So in a law of Canute as to the effect of a judgment as to the right to land, we find the origin of the use of recoveries, which afterwards prevailed until that act. " He who has defended land (i. e., against all claim) with the witness of the shire (i. e., in the county court, .the only court at that time), let him have it undisputed during his day, and after his day to sell and to give " {Laws of Commie, c. Ixxx.). So of fines. ^ Thus, for instance, the whole law as to gifts or donations, especially that peculiar one of Donatio mortis causa (Cod. JusU, lib. viii., tit. 56). So as to distress (0>d. Just., lib. viii., tit. 27, " De districtione pegnorum;")and lib. X., tit. 30, " De capiuendis et distrahendis pignoribus tributorum causa ; " lib. X., tit. 21, 8. 1, "Bes eorum que fiscalibua debitis per contumaciam satis- facere diffescerit, distrahantur." The application of the process to the levy- ing of rent or service was easy and natural. So as to the precaution pro- vided by the Boman law against frauds by widows upon heirs, and the writ, De ventre iTispieieindo, which was derived from the Boman law into our own (Pond., lib. XX v., tit. 4, J)e iiispieiendo ventre) , Savigny gives several instances of citations from the Boman law in the Saxon. " The action of ejectment for instance. In the Boman law there was this usage. If the thing was immovable, there appears to have been an old cere- mony of the parties going to the land, and one expelling the other from it and leading him before a magistrate {Sandal's Introd. to the Inetitotes, p. 59). Now no one can fail to be struck with the resemblance here presented to the original procedure in ejectment, the lease, and the expulsion which used to formthe foundation of the action. So as to fines, learned authors are of opinion that they originated in a suggestion derived from a proceeding in the Boman law {Cruises Essay on Beal Properly), and there ia great foun- dation for the belief. STUDY OF KOMAN LAW NBCESSAEY IN OUE LEGAL HISTOET. Cxlv Roman law, with reference to its influence on the forma- tion of our own, is in this, that it was the great fountain of legal principle, whence all of our law that was not bar- barous (and which, therefore, for the most part has disap- peared) was derived. And it might have been imagined that writers upon our legal history would have directed attention to this source and fountain, whence were de- rived the principles from which our own was developed. This, however, has not been the case, and the only writers on our legal history. Hale, Blackstone, and our author, have either ignored the influence of the Roman law upon the formation of our own, or have, at all events, made no attempt to trace and to describe it, because they found it difficult to trace particular pieces or portions of our law to that source. It surely must be manifest that this view is narrow and inconsistent, — narrow, because it restricts the use and scope of legal history to a mere process of precise identification of particular laws; and inconsistent, because if this were all, the study of legal history would, on the narrow practical view suggested, be of little use or value. If legal history is to be looked at only with a view to the actual law as it is, its scope is limited indeed ; but in the view of the greatest writers, it has a far wider and larger scope — it teaches the principles from which laws are de- rived, and the processes by which they are developed ; it gives the mind the best possible training, either for law or legislation, and the best possible preparative for the atudy either of history or law. " II faut," said Montes- quieu, " eclairer les lois par I'histoire, et I'histoire, par les lois." And if the history of law leads to the Roman law as the true source and standard of law, then the mind is directed to the study of that which is the highest human law, and the key to all human history. Since Hale wrote and since Reeves wrote, a far wider view than theirs has been taken of legal history. That great writer, Gruizot — who has, perhaps, more than either, elicited the philosophy of legal history — thus expounded its nature and advantages : " Between the development of legislation and that of society, there is an intimate correspondence ; the same revolutions are accomplished therein, and in an analogous order. Let us study the history of laws during the same epoch, and let us see if 13 K CXlvi INTRODUCTION TO THE PRESENT EDITION. they will lead us to the same result — if we shall see the same explanation arise from it. The history of laws is more difficult to understand thoroughly than that of events properly so called. Laws, from their very nature, are monuments more incomplete, less explicit, and con- sequently more obscure. Besides, nothing is more diffi- cult, and yet more indispensable, than to take fast hold of and never lose the chronological thread. When we give an account of external facts, wars, invasions, etc., then chronological concatenation is simple and palpable ; each event bears, as it were, its date upon its face. The actual date of laws is often correctly known, it is often known at what epoch they were decreed ; but the facts which they were designed to regulate, the causes which made them to be written in one year rather than another, the necessities and social revolutions to which the legis- lation corresponds, this is what is almost always unknown, at least not understood, and which it is still necessary to unfold, step by step. It is from this study having been neglected, from the not having rigorously observed the chronological progress of laws in their relation to that or society, that confusion and falsehood have so often been thrown into their history. A little more attention to the chronological development of laws and of the social state would have prevented it " {Lettres surla CXviliz. dans Fraiwe, lect. XXV.). It would be impossible to express more clearly or more correctly the objects, the uses, and advantages of legal history, or the history of law, and the necessity for trac- ing it from its earliest rise, and in every step of its course and progress. And the same great writer, Guizot, forcibly expounded the importance of the study of the Boman laws and in- stitutions, as a preparation for the study of those of the races they subdued. He says — "In commencing, in any quarter of Europe, the study of modern civilization, we must first investigate the state of Roman society there, at the moment when the Roman empire fell — that is to say, about the close of the fourth to the opening of the fifth century " ' {Lectures sur la Givilization dans France). ' The eminent writer goes on to say : " This investigation is peculiarly necessary in the case of France. The whole of Gaul was subject to the empire and its civilization ; more especially in its southern portions was GRAND UNIVERSALITY OP THE COMMON LAW. Cxlvii The grand feature in the character of the Eoman law ■was its universality. This may here well be described in the eloquent language of one of the most eminent and enthusiastic of its teachers, the gifted author already alluded to: — "In consequence of the increasing power of the republic, new magistrates became necessary. Among these, one was created of the utmost importance in the history of Eoman legislation ; this was the Praetor pereffrinus,qui inter cives et peregrinos jus dixit. The func- tion of this magistrate was to adjust the disputes which might arise between citizens and foreigners. Thus a new element found its way into Eoman jurisprudence. In addition to the local and positive laws by which their own society was regulated, it became necessary for the Eoman judge to consider the fundamental principles of justice, from which all law derives its obligation. These principles, under the name o{ jus gentium, thus became familiar to the minds of Eoman jurists, and exercised a considerable and happy influence over the institutions of Eome itself. Thus it was, that the view of the jurist became more liberal and extensive, and the notion of a law not dependent upon climate or on caste, common to man on the banks of the Ilissus, the Tiber, or the Euphrates — a covenant, as it were, between earth and heaven, which no human authority could abrogate or supersede, from which all laws derived their controlling pfewer — was transferred from the schools of Greece to the tribunals of Eome. It became every day more and more necessary to appeal to broader principles than those which the municipal institutions of any country could supply ; and these were to be found only in the naturalis ratio, the principles implanted in the man wherever he lived, and however he was governed " {Phillimore's Study of the Roman Law, p. 80). It must be manifest that a law pervaded by such grand views and such broad principles thoroughly Boman. In the histories of England and Germany, Borne oc- cupies a less prominent position ; the civilization of those countries in its origin was not Boman but Grermanic. It was not until a later period of their career that they really underwent the influence of the laws, the ideas, the traditions of Borne" {Led. sur la OivUiz. dans Framce, Lect. ii.). It will have been seen, however, that this was a mistake, and that he had forgotten his own contemptuous allusion to Saxon sources of civilization ; when the course of those inflnences is traced, it will be found to have commenced much earlier than this eminent writer supposes. Cxlviii INTRODUCTION TO THE PRESENT EDITION. as these, must have been singularly adapted to exercise a salutary influence upon the barbarian races reduced under' its rule ; and that this influence must have endured even after the power of the empire was withdrawn, by the force of moral suasion, which never fails to draw men to imitate what they admire or revere. Hence we might expect to find the barbarian races — for instance, our own Britons or Saxons — so soon as the influence of Roman civilization began to tell upon them, look up to, and lay hold of, the laws and institutions of the mighty empire, whose greatness they could not but recognize even in the age of its decline. The main interest of the question as to the connection between the Roman law and our own, is, that our vast empire, over numerous races and peoples, occupies a position in the world very analogous to that of Rome, and in which a like necessity exists for recourse, to principles of jurisprudence, wide and broad enough to embrace all the numerous nations subject to our sway, and enable us to rule and govern them all upon the broad ground of common principles of justice, equally applic- able to them all. This was the glory of the Roman law, and for that very reason does enter largely into our own law, and that of many of the colonies or countries subject to our rule ; and it is manifest that the more the atten- tion of English lawyers is called to it, the more enlight- ened and enlarged will be their views of law and legisla- tion, and the more free from the narrow bonds of meife municipal law and national prejudice. This is undoubtedly the view taken by the ablest writers. A learned and able writer in our own time says : — " It is scarcely possible to suppose any. well-read lawyer, capti- vated as he may bp with the notion of Saxon liberty, can proceed far in the study of either system, without perceiv- ing a striking analogy between the civil law of Rome and the common law of England, not only as to their maxims and principles, and their technical phraseology, but also their method of practice, showing how eariy, and to what extent one system became the instructor and guide of the other. To some minds there is a black-letter witchcraft in the expressions, 'Anglo-Saxon liberty,' 'ancient constitution,' and the like, while the chances are, that in furnishing an example they may fall into the whimsical position of seizing upon some relic of Roman RESEMBLANCE OF THE EOMAN ETJLE TO OUK OWN. cxlix jurisprudence to prove the perfection and justice of their own" (Goldsmith's Doctrine of Equity, p. 8). " When we remember that the Romans held possession of this island nearly five hundred years, and during that period some of the most celebrated lawyers administered justice among the conquered Britons upon the like foot- ing, and according to the same system adopted by the con- querors in their own country, we cannot be surprised that such an event had its due influence in stamping a character upon the future institutions of the country, more especially as the Romans also imposed their language as well as their customs upon the newly-acquired colony " {Goldsmith's Doc- trine of Equity, p. 8). No one can have followed the imperfect review which has here been presented of the course of our legal history without feeling that this is perfectly true. The same view has the authority of the great writer — the historian of ■ Europe in the Middle Ages — who has left on record his opinion that the influence of the Roman law upon those who framed our own was greater than they acknowledged, or even than they knew, and he added : " A full view of the subject is still, I think, a desideratum in the history of the English law, which it would illustrate in a very inter- esting manner " {^Middle Ages, c. viii.). It has been the endeavor of the writer, in some degree, to supply this deficiency, and at all events he has now explained the views and principles upon which the present edition has been prepared. Nor is the interest of all this merely his- torical, nor has it only a reference to the past. The sub- ject has a nearer interest on this account, that within the numerous dominions or dependencies of our vast empire there are always some communities which are in a state similar to that of our own country, at some one or other of its difiierent conditions, and are passing through periods of transition, and undergoing changes, which this country went through in ages past. Thus, for instance, in the vast dominion of India, in itself an empire, there have always been provinces which have exemplified, under some species of rule, the various states or conditions through which this country passed in early times ; whether the elaborate despotism of the Roman period of occupation, the rude barbaric freedom of the Saxon popular tribunals, or the feudal system of the Normans ; all these, as described by 13* Cl INTRODUCTION TO THE PRESENT EDITION. the pen of a Gibbon, or a Guizot, or a Palgrave, in onr own or other countries of Europe during the earlier or middle ages of European history, will be found to have been reproduced upon the continent of India, either under native rule or under our own. Thus the first state or condition in which we find the people of India under their Hindoo emperors, that of un- mitigated despotism, so closely resembles that in which the various races of Europe were in the latter period of the Eoman empire, that the passages in Gibbon or in Mill which describe them, respectively appear like remarkable historical parallels.^ ' In Mill's Hist. Brit. India, vol. i., c. iv., a very similar account is given of Hindoo judicature: "As kings and their great deputies exercised the principal functions of judicature, they were too powerful to be restrained by % regard to what had been done before them by others. What judicature could pronounce, therefore, was almost always uncertain, almost always arbi- ■ trary " (p. 171). And again, in a note, " The authority of the Hindoo princes, as well as that of the vile emissaries whom they keep in the several prov- inces of their country, being altogether despotic, and knowing no other will but their own arbitrary will, there is nothing in India that resembles a court of justice. The civil power and judicial are generally united and exercised in each district by the collector or receiver of the imposts. This tribunal, chiefly intended for the collection of taxes, takes cognizance of all affairs, civil or criminal, within its bounds, and determines on all causes." " This was just the state of the Saxon and early Norman system, when the shire- reeve, the sheriff, the king's steward, or bailiff, originally appointed mainly to receive his dues, was also the chief judge of the county. The sheriff was ultimately deprived of all real jvdieial power, and made the mere minister of the law. And the judicial powers of the ' collector system ' of magistracy in India is not approved of by the best authorities. The 'collector' com- monly exercised both civil and criminal jurisdiction within the territory over which he was appointed to preside. In his criminal court he inflicted all sorts of penalties. ... In his Adawlut or civil court, he decided all questions relating to property. His discretion was guided or restrained by no law, except the commentaries and customs, all in the highest degree loose and indeterminate. There was no formed and regular course of appeal from the Zemindary decisions, but the government interfered in an arbitrary man- ner. ... To the mass of the people these courts afford but little protection. The expense created by distance precluded the greater number from so much as apj^ication for justice. The judges were swayed by their hopes or their fearSj their proceedings were not controlled by any written memorial or record. Originally questions of revenue, as well as others, belonged to the courts of the Zemindars ; but a few years previous to the transfer of the revenues to the English, the decision of fiscal questions had been taken from the Zemindars, and given to an officer called the fiscal-deputy in each province" (MiWsHia. British India, vol. i., b. v., c. i., p. 314, qiiart. erf.). " One of the first steps in reform was to establish supreme courts of appeal ; and, of course, as a nec- essary condition, it was ordained that records of all proceedings should be made and preserved" (Ibid., p. 316). The Zemindars, it is elsewhere stated, had an office and authority, comprising both an estate and a magistracy, a species of sovereignty {Ibid., c. iii.). As kings and their great deputies exer- BEARING OF LEGAL HISTORY UPON MODERN TIMES. cU In India, from very early times, there had existed a system of natural arbitration by the neighbors, which probably formed in every country the first attempt at anything like an administration of justice, and which substantially resembled our old Saxon county courts, being mere assemblies of the principal inhabitants, who took cognizance of the disputes which arose among them, and made the best settlement they could — a system suited to an early state of society, and which necessarily precedes a more regular administration of justice.* Such a system was only suited to the rude and simple condition of society in which it had originally arisen ; and hence, when it was attempted half a century ago to restore it in India, the experiment failed,^ for reasons cised the principal functions of judicature, what judicature would pronounce was uncertain and almost always arbitrary (vol. i., c. iv., p. 2). "For a con- siderable time before the establishment of British supremacy, the people of India had been unaccustomed to any regularly organized and administered system of law or justice. . . . The main principle that everywhere regulated the administration was the concentration of absolute authority, and the same individual was charged with the superintendence of revenue, justice, and police ; with little to guide or restrain him, except his own perceptions and sentiments of equity. Even in the best of times the sovereign was the foun- tain of law and justice, . . . but the leading object of the native govern- ments was the realization of the largest possiole amount of revenue, and all persons engaged in this duty were armed with plenary powers, both as mag- istrates and judges ; so that, in general, the people were left to the uncon- trolled will of individuals" (MUl's Hist. Brit. India, cant, by Wilson, vol. i., 387). ' In the absence of courts of justice provided by the state, the people learned to abstain from litigation (Elphinstone, iv., 194) ; or " when disputes arose among them, submitted them to the arbitrament of judges chosen among themselves. This expedient had probably descended from ancient times, in what had been a recognized element of Hindoo judiciary adminis- tration, under the name of Panchayat," [this is a mistake, for in the next page the historian mentions " the Panchayat had no power to enforce its decrees, so it was not a judiciary body;"] but it had fallen into discredit in most parts of India." Although, he adds, they were not inaccessible to personal bias or corruption, and their proceedings were occasionally irregular and tedious, yet they were suited to the times, and congenial to the feelings of the people, and supplied the place of better organized and more solemn tribunals (Hist. Brit. India, vol. i., 389). He says, in a note, they seem to have been but clumsy instruments. He elsewhere says they were prized only so long as nothing better was to be had. ' The effects of the regulations, (extending the system of village Pancha- yats) operated to lighten the duties of the judges, and to facilitate the deter- mination of civil suits. Some of their results, however, were unexpected, and afforded an unanswerable proof that the sentiments of the natives of India are as liable as those of other natives to vary with change of time and circumstances. The benefits so confidently anticipated from the public recognition of the Panchayat, were not realized : the supposed boon to the Clii INTRODUCTION TO THE PRESENT EDITION. which might have heeu anticipated by the aid of the light to be acquired from our own legal history. It was found, as indeed had been predicted, that the ancient system of rude popular arbitration had only been toler- ated when nothing better was known, and because nothing better was known ; and that when once the idea of a ra- tional and intelligent administration of justice by any judicial order of men had arisen, the preventive system of natural arbitration would not be endured. people was rejected; they would make little use of an institution inter- woven, it had been imagined, inseparably with their habits and affections. The Panchayats, it appeared, had been highly prized, only as long as nothing better was to be had. In the absence of all other tribunals, the people were constrained to establish one for themselves, and willingly admitted its adju- dication of disputes which there was no other authority to settle ; while, on the other hand, the most respectable members of the community, especially interested in maintaining property and peace inviolate, and being subject to no authoritative interference or protection, willingly discharged, without any other consideration than the influence which they derived from their discharge of such functions, the duties of arbitrators and judges. But a court, the members of which had no responsibility, etc. ( Wilson's Hist. Brit. India, vol. ii., p. 321). As the patels or head- men of the villages, and the village Panchayats, were not to receive any remuneration for the perform- ance of the duties to be assigned to them, it was anticipateit that they would either decline the obligation, or fulfil it with reluctance and indifference. Connected also as they must be with the parties concerned in the cases be- fore them, it was scarcely to be expected that they should perform their duties free from bias or partiality ; and as it was part of the plan that their sentences should not be subject to appeal, there was no security against their committing gross injustice. As also they were necessarily ignorant of the laws and regulations, their judgments could not be governed by any deter- minate principles, and their decisions could not fail to be capricious and contradictory (Wilson's Hist. Brit. India, vol. ii., p. 518). Notwithstanding, however, these objections, the system was established in 1816 — with what result? "The benefits expected were not realized; the Panchayats, it ap- peared, had been highly prized, only as long as nothing better was to be had." 'In the gross and complicated mass of human passions and concerns, the primitive rights of men undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate ; the objects of society are of the greatest possible complexity; and therefore no simple dis- position or direction of power can be suitable either to man's nature or to the quality of his affairs. When I hear the simplicity of contrivance aimed at and boasted of in any new political constitution, I am at no loss to decide that the artificers are grossly ignorant of their trade. The simple govern- ments are fundamentally defective. If you were to contemplate society in butone point of view, all tiiese simple modes of polity are infinitely capti- vating. In effect, each would answer its single end more perfectly than the more complex is able to attain all its complex purposes. But it is better that the whole should be imperfectly answered than that while some parts are provided for with great exactness, others might be totally neglected or materially injured. The advant.iges of government are often balances be- tween differences of good, compromises sometimes between good and evU, BEARING OF LEGAL HISTORY UPON GOVERNMENT, cliii And although some writers in our own times ^ have been disposed to admire what they called the " simple and natural " proceedings of these popular tribunals in India, they have been compelled to admit, in a great de- gree, their evils, especially in the absence of anything like certainty or uniformity in the administration of the law ; and it has been manifest, from the tenor of their observations, that the view they had taken was compara- tive with reference to a system of procedure then estab- lished in this country, which was infinitely too formal and artificial, and led many to suppose that a system could not have forms without being formal, could not be regular Without being technical. And these writers have and sometimes between evil and evil" (Burke's Reflections upon the French BevolutionY ' Mr. Mill, while arguing against the uncertainty of unwritten laws, admits that this uncertainty is limited by the writing down of decisions, " when, on any particular subject, a number of judges have all, with public approbation, decided in one way; and when these decisions are recorded and made known, -the judge who comes after has strong motives not to depart from their example. This advantage, the Hindoo judicial sygtem," he observes, "wag deprived of, in this respect resembling our old Saxon system." Among them, the strength of the human mind has never been sufficient to recom- mend effectually the preservation by writing of the ceremony of judicial decision. It has never been sufficient to create such a public regard for uni- formity as to constitute a material motive to a judge. And as kings and their great deputies exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What the judicature would pronounce, was therefore almost always uncertain, almost always arbitrary [Mill's Hist. Brit. India, b. ii., c. 4). It would surely be impossible to imagine a greater fallacy. Mr. Mills ap- proved of the Hindoo and Mohammedan systems of procedure because, he says, they were so "simple and natural," merely summoning the parties, and making a direct and simple insrestigation. Tliis system may do well enough for simple cases, and, as shown in the text, it has always been allowed in our law for such cases, with the advantage, however, of a central system of con- trol in the superior courts to prevent excess or abuse of jurisdiction (p. 171, and p. 6, c. i., vol. i.). Under the Hindoo and Mohammedan systems, how- ever, it seems to have been applied to all cases, and without control or ap- peal; and Mr. Mills admits that it made no provision for securing uni- formity : " no provision made for the preservation by writing of judicial decisions; no regard for uniformity" (p. 171); "so that what judicature would pronounce was almost always uncertain and arbitrary " {Ibid.). And he admits " that the Indian system of procedure is liable to the evil of the arbitrary power with which it entrusts the judge" (p. 141, 1st ed.). His only defence for it is, that a regular — as he calls it — technical system could not avoid the same evil. But a regular system need not be technical ; and may, as ours does, regard only what is substantial, and may be sufficient to guard against the evils he points out. It is due to him to add that our system of procedure has been greatly altered since he wrote; not, indeedj in its principles, but in its forms, which were infinitely too strict and technical. cliv INTKODUCTION TO THE PRESENT EDITION. admitted the advantages of a regular judicature, and a regular system of procedure, with its records and appeals, and its guarantees against error or uncertainty in law. But when an order of judges were appointed, however inferior, yet acting in the regular discharge of a judicial duty under the authority of government, and under some sense of responsibility, the great superiority of this ap- proach to a regular judicature, and a settled system of administration of justice, was so apparent to the people, that their ancient native tribunals were soon deserted, and the new order of judges, notwithstanding all their imperfections, were appealed to in preference.* The interest and the importance of the study of our legal history may be enhanced and illustrated by some further considerations. In the numerous dominions and dependencies within the compass of our vast empire, while, on the one hand, our own law is, more or less prevalent in the greater portion of them, yet, on the other hand, there are many of them in which other systems of law are more or less prevalent ; but most of these derived, like our own, from the Roman or civil law. It is manifest that to the subjects of such an empire, in whatever portion of its dominions they may live, the study of her legal history must be of great interest and advantage, whether as being itself the law under which they live, or as derived from the same law which was the parent of their own, and which was based on great prin- ciples, capable of application in every civilized community. There is probably no empire in which the law is more honored than in our own. In this respect, again, the ' " But a court, the members of which acknowledged no responsibility, and performed their functions only for such a term or at such times as suited their own convenience; who were guided by no light except their own good sense; and who, even if incorrupt, could scarcely be impartial ; who had no power to carry their own decrees into effect, and whose sentences were liable to no revision ; such a court must have been a very inadequate substitute for any tribunal, the proceedings of which were regulated by fixed rules, removed from personal influence, and subject to vigilant supervision. Whatever defects might still adhere to the administration of justice through individual judges, native or European, appointed by the government, tltdr courts con- tinued to be crowded, while the Panchayais were deserted, etc. . . . The patels were mostly ignorant men, little qualified by superiority of knowledge or talent to command respect for their decisions. Eecourse was rarely had to their judg- ments, and the chief labor fell upon the officers appointed by the state for the distribution of justice among the people" {Wilson's Hist. Brit. India,yol. ii., p. 522). OBJECTS AND USES OP LEGAL HISTORY. clv British empire resembles the Roman. A semi-barbarous people pay more regard to arms than to morals, to com- merce, or to law. Thus, in Russia at this day, com- merce, the law, and all civil employments, are held in no esteem (Sir A. Alison's Hist. Europe, vol. ii., p. 391). So the same writer says, " Nothing astonishes the Russian or Polish noblemen so much as seeing the estimation in which the civil professions, and especially the bar, are held in Grreat Britain " {Hist. Mir(ype, vol. x., p. 566). As the Roman empire extended the study of the Roman law through its provinces, so it has been with our own ; and nowhere is law more regarded than in our colonies. Thus very early in the history of our American colonies, their respect for law was remarkable. Burke was struck by it. " In no country perhaps in the world is the law so gen- eral a study^" {Burke's Wcyrks, vol. i., p. 188). Mr. Buckle cites this remarkable testimony, and adduces more mod- ern works to establish the same characteristic. (See Lyell's Second Visit to the United States, vol. i., p. 48 ; and Combe's North America, vol. ii., p. 329.) It is obvious that in such countries and colonies the study of our legal history must have a great interest. There are, it will have been observed, many uses or objects of legal history, which, however, perhaps may be included under the two great heads mentioned by Mon- tesquieu : the illustration of history by law, or of law by history. The former belongs rather to the general stu- dent, to the politician, the jurist, the legislator, or the statesman. The latter alone belongs specially to the lawyer. It has been well said by an eminent luminary of the law that no man can be a good lawyer who is not well acquainted with the history of law. The reason is obvi- ous enough upon reflection, for to be a lawyer, and, still more, to be a jurist, demands a thorough acquaintance with the principles of law,^ and these can only be ac- quired by tracing them, so to speak, to their real source and origin, an inquiry which belongs to legal history. The principles of every part of our law are to be found in their simple, original forms, in its more ancient forma and proceedings ; and though these may long ago have ' There is a passage in our author to thia effect {Me vol. v., c. xxxv.), et vide p. 316. clvi INTRODUCTION TO THE PRESENT EDITION. become obsolete, the principles endure, for, as a learned judge once observed to the writer, forms may perish, but principles remain, and they only reappear in new forms more suited to the manners and exigencies of the age.^_ Thus the old writs or proceedings of our law embodied the principles and objects which are now worked out by more modern procedure.^ The ancient tribunals of the country are superseded by other institutions directed to the attainment of the same object, and not only the vast domain of common law, but still more complicated sys- tems, like our systems of conveyancing or of equity, are to be deduced from simple elements to be found in the Year-Books. It is laid down by all great writers that the only way to become a lawyer is to study the more ancient authori- ties of our law, and it is often otherwise impossible to master the law on a subject ;' yet it is as impossible, with- ' For instance, advertisement in the papers now takes practically the place of proclamations in the ancient county court, or assemblies of the people. ' Thus the old writ of ad qutod damnum was superseded, as to the stoppage or diversion of highways, etc., by the Highway Act, 13 Geo. III. {Ex parte Armilage Ambler, 294; Dairson v. QUI (East) ; Bex v. Netherthong, 2; £. and Aid., 179). The whole statute law as to the liability of the hundred for damage done by rioters (going back to 1 & 6 Geo. I., and the 27 Eliz., c. xiiL), is based on the common law liability, founded on customs derived from the ancient Saxon laws (Bex v. Clark, 7 T. E., 496). An action on the case was held maintainable upon the 6 Geo. I., o. xvi., s. 1, by the party grieved, to recover damages against the inhabitants of the adjoining township, for trees, coppice, and underwood, unlawfiiUy and feloniously burnt by persons un- known, though the clause directed the party grieved to recover his damages in the same manner and form as given by the stat. 13 Edw. I., st. 1, c. xlvi., for dykes a/nd hedges overthrown by persons in the night, upon which the usual course of proceeding had been by the writ of noctantur ( Thomhill v. Huddeirs- field, 11 East., 349). So as to the statute of Hue and Ory as to robbery ( Whit- worth V. Orimshaw, 2 Wils., 105 ; Bex v. Salfshire, 5 T. K., 341). These are only instances. ' Even although they have for ages been obsolete. Thus, for instance, on the important subject of bail in criminal cases, Lord Coke is careful and copious in expounding the enactment in the first statute of Westminster, al- though the writ founded thereon was, as he mentions, taken away by the subsequent act, 28 Edw. III., because (he says) "the statute of Philip and Mary concerning bail has relation to our act" (2 Inst., 190). So he cites the Mirror, Bracton, and Britton constantly and copiously to explain our older statutes, and he frequently speaks strongly as to the necessity for a knowl- edge of the history of law. For instance, he says : " It is necessary not only to know the law, but also the root and reason out of which the law deriveth his life — viz., whether from the common law or from some act of parlia- ment, lest, if he taketh it to spring from the common law, it may lead him into error" (2 Inst, 296). So in another place he says, " And though this act (of 18 Edward I.), be repealed, yet it may serve in many respects to OBJECTS AND USES OF LEGAL HISTORY. clvii out an acquaintance with the history of the law, to un- derstand them, for the very reason that the forms and proceedings they mention have long been obsolete, and yet without understanding them, the statutes and the re- ports are unintelligible, and the sources of the principles on which the law rests are sealed and inaccessible. No part of our law can be thoroughly understood without tracing back that tradition to its origin and source. But to do so it is necessary to have the guidance afforded by legal history. On the other hand, as one who was both a lawyer and an historian,* and himself well understood and applied the mutual illustration of law and history, observed, law as often illustrates history, as history elucidates law. These, therefore, are the uses and objects of legal his- tory, and these the ideas and views upon which this his- tory has been edited. explain the statutes of 4 Henry VII., and 32 Henry VIII., for the true un- derstanding of the common law, and of former statutes, is the sure master- expositor of the later" (2 Inst., 518). But it is manifest that the very lan- guage and terms of the Year-Books or old statutes cannot be understood without an acquaintance with legal history. No man who has not read Britton can well understand the Year-Books ; and to master the law, it is necessary to refer to the Year-Books, and often to the Eoman law. Thus the liability of innkeepers and carriers can be traced back through the Year-Books (42 Edward III., fol. 11 ; 11 Henry IV., fol. 45) to the civil law (Dig., lib. iv., tit. 9, leg. 3, s. 2), whence, no doubt, it was derived, by custom, into our own. ' Lord Bacon, who says — "It is a defect even in the best writers of his- tory, that they do not often enough summarily set down the most memorable laws that passed in the times whereof they write, being indeed the principal acts of peace. For, though they may be had in the original books of laws themselves, yet that informeth not the judgment of king's councillors and persons of estate so well as to see them described and entered in the title and portrait of the times " (Life of Henry VII., p. 46). 14 HISTORY OF THE ENGLISH LAW. THE SAXONS. The Laws of the Saxosts — Thahtland and Eeveland — Fbeemen — Slaves — The Toukn — County Cottkt — Other Infebiok Courts — The Wittenagemote — Nabube of Landed Property — Method OF Conveyance — Decennaries — Criminal Law — Were — Mur- der — Larceny — Deadly Feuds — Sanctuary — Ordeal — Trials IN Civil Suits — Alfred's Dom-boc — Compilation made by Ed- ward THE Confessor — Saxon Laws. THE law of England is constituted of Acts of Parliament and the custom of the realm (a) ; on both which courts of justice exercise their judgment ; giving construction and effect to the former, and, by their interpretation, de- claring what is and what is not the latter. We possess many of these Acts of Parliament from Magna Charta, 9 Henry III., to the time of Edward III,, and from thence in a regular series to the present time. The statutes, except some very few, enacted by the legis- lature before that period, are lost; though, no doubt, many of the regulations made by them, having blended themselves with the custom of the realm, have been re- ceived under that denomination, since the evidence of (a) This, it will be observed, is a definition rather of law, or of the "formal grounds or constituents," as Lord Hale calls them, of the law, than of legal history. And it omits what he includes among them, judicial de- cisions (c. 4), which he says are incorporated into the law (c. 1), together with the materials on which they proceeded, which are often lost to us, whether it be ancient statutes or usage. And as to this he points out that the canon or civil law has been, by immemorial usage, in some matters adopted into our own (o. 2). And, elsewhere, he also points out that these judicial decisions are in part themselves the result of a knowledge of the law (c. 4). It seems to follow that a history of onr law ought to go back to, or be founded upon, that system of law which was the earliest civilized law known in the country, and was established here for ages. Because in that system of law it needs must be that we have the fountain whence our oldest customs were derived, the sources from which, by judicial decisions, all our subsequent law has been developed. 159 160 THE SAXONS. [CHAP. I. their parliamentary origin is destroyed (a). The custom of the realm, or the Common Law, consists of those rules and maxims concerning the persons and property of men, that have obtained by the tacit assent and usage of the inhabitants of this country ; being of the same force with acts of the legislature. The only difference between the two is this, the consent and approbation of the people with respect to the one is signified by their immemorial use and practice (b) ; their approbation of, and consent to, the other is declared by parliament, to the acts of which every one is considered as virtually a party. The common law, like our language, is of a various and motley origin ; as various as the nations that have peopled this country in different parts ^and at different periods (c). (o) Lord Hale says that "acts made before the reign of Eichard I., and not since repealed either by contrary usage or subsequent acts, are now ac- counted part of the lex non seripta, being incorporated therein and part of the common law, and many of those things that now obtain as common law had their origin by acts or institutions, though those acts are now either not extant, or, if extant, were made before time of memory: and that this ap- pears thus, that in many of the old acts made before time of memory [i. e. temp. Eichard I.), and are yet extant, we find many of those laws enacted ■which now obtain as common law, or the custom of the realm." He says further, that these ancient acts, now ranged under the head of leges non seriptoB, or customary laws, are from the Saxon laws, which he cited from Lambard's Collection, and which have since been published by Wilkins, and also more lately under the title of Angh-Saxon Laws and Institutes, ed- ited by Mr. Thorpe, and next, various statutes passed in and since the reign of the Conqueror, e.g., to Henry III. In these he includes the laws of William I. himself, which, he says, consist in a great degree of the laws of the Confessor, the laws of Henry I., published in the Anglo-Sa/am Laws, vide post, p. 477, and the constitutions of Clarendon, temp. Henry II. Then, as regards the statutes within the time of legal memory, — that is, in and since the reign of Eichard I., — he says there is very little extant in any authentic form, and mentions nothing of importance except the Charter of King John, of which, and the other charters, he truly says that " there was great confu- sion, until in Magna Charta of Henry III., they obtained a full settlement, and the substance of them was solemnly enacted by parliament." So that statutory law really commences with Magna Charta. (6) The author here forms the well-known maxim of the Eoman law, which bases the force of custom on this principle, "Sine scripto jus venit, quod usus approbavit nam diuturni mores consensu utentam comprobat legem injitantur" {Inst. Just., lib. 1, tit. 2). (c) This, to some extent, is true, but to what extent, has already been con- sidered in the Introduction. As to the Britons, as distinct from the Eomans, it would be idle to speak of the " laws" of mere barbarians. The bulk and body of our law, so far as it is civil, is Eoman ; but so far as it is criminal, it seems to be chiefly Saxon. It would be difficult to find anything now ex- isting in our law, except our criminal system of procedure and the form of trial hy jury, which could be said to be distinctively Saxon, nor anything at all which is distinctively Danish or Norman : when our author wrote, and CHAP. I.] INSTITUTIONS THEY FOUND EXISTING. 161 Some of it ia derived from the Britons (a), and some from the Eomans (b), from the Saxons, the Danes, and the ]^or- mans. To recount what innovations were made by the succession of these diiFerent nations, or estimate what proportion of the customs of each go to the composing of our body of common law, would be impossible at this dis- tance of time (c). As to a great part of this period, we have no monuments of antiquity to guide us in our in- quiry ; and the lights which gleam upon the other part afford but a dim prospect (d). Our conjectures can only be assisted by the history of the revolutions effected by these several nations. Certain it is, that the Romans had establishments in this island, more or less, from the time of Claudius (e) ; real actions existed, and trial by battle and wager of law had not been abol- ished, it might have been otherwise, though these parts of our law were, even then, obsolete. (a) It has already been shown in the Introduction that the Britons before the arrival of the Eomans were mere barbarians, and had no " laws " at all ; so that this, to mean anything, must mean the laws of tlie Britons after they had become Romanized, and had to a great extent adopted Eoman laws and institutions, in which sense it is in substance the Eoman law. The only British laws remaining — those of Howell Dhu — are of Eoman origin, having been compiled long after the Eoman occupation. (6) The whole of our municipal system — our manorial system — the rules of inheritance (modified, no doubt, by subsequent usage) — the general scope of our civil procedure, and the whole substance of our law, so far as it re- lates to civil matters, are of Eoman origin. This has ■been shown in the Introduction. (c) This is the view conveyed by Lord Hale in his history ; but, in the comments already made upon it in the Introduction, it has been observed that it affords no suflBcient reason for entirely ignoring the Eoman law, and its influence in the formation of our own, and thus losing the light which that law sheds upon it ; nor, on the other hand, losing sight in a great degree of the Saxon laws and institutions, so far as they related to criminal matters. From these sources of information it may, it is conceived, be made out, that the civil part of our law is of Eoman origin, and the criminal part of it of Saxon origin. And it is a great deal to get at the original source of the law upon a subject. (rf) On the contrary, there is the Eoman law, there is the Eomanized British law, in the old laws of Wales, and there are the Anglo-Saxon laws, and the Mirror of Justice — an ancient work, embodying one still more ancient, of the time of Alfred. Of the text of the former and latter of these materials, however, the author made no use; and of the other — the Saxon laws — it will be seen that he did not sufficiently appreciate them to make a full and adequate use of them. Had he done so, he would have found a far greater degree of light than he supposed to be attainable on the subject, (e) A. D. 43. Suetonius subdued the great rebellion of the Britons, A. D. 60 ; Agncola completed the conquest of the island, A. s. 80 ; and, in the pages of Tacitus, we find that the British learned the language and imitated the usages of the Eomans. " Jam vero principum Alios liberalibus artibas erudire et 14* L 162 THE SAXONS. [CHAP. I. that they did not finally leave it till the year 448 a.d., and that during a great part of that period they governed it as a Eoman province, in the enjoyment of peace, and the cultivation of arts. The Roman laws were adminis- tered as the laws of the country ; and at one time under prefecture of that distinguished ornament of them, Papi- nian. When these people were constrained to desert Britain, and attend to their domestic safety, the Picts and Scots broke in upon the peaceable inhabitants of the south- ern parts ; who, unable to resist the attack, at length ap- plied to the Saxons for assistance. Several tribes of Sax- ons landed here, and first drove the northern invaders within their own borders ; then turned their arms against the Britons themselves ; and having forced great numbers of them into the mountains of Wales, subjected the rest to their dominion, which gradually subsided into seven independent kingdoms {a). The circumstances of this revolution are related to be of a kind differing from most others. The Saxons are described as a rud.e and bloody race ; who, beyond anjr other tribe of northern people, set themselves to extermi- nate the original inhabitants, and destroy every monu- ingenia Britannorum Btudiis Gallorom anteferre ; ut qui modo linguam Bo- manam abnuebant, eloquentiam concupiscerent ; inde etiatu habitus nostri honor, et frequens toga . . . idque apud imperitos humanitas yocabuntur, cum pars servitutis esset" (In vU. Agrie.). A century and a quarter later, we find the Emperor Severus residing at York, and elevating the great jurist^ Fapinian, to the prefecture. His successor, Caracalla, conferred upon all free subjects in the provinces the rights of Boman citizens. This was A. D. 220. Nearly another century elapsed before the reign of Constantine — nearly another to the reign of the second Theodosius. The Theodosian code was not long afterwards published, and another generation had elapsed be- fore the Boman rule in Britain terminated. Thus, therefore, during more than three centuries and a half, the country was thoroughly under Boman laws and Eoman institutions, and its inhabitants civilized under their influ- ence. It is not possible but that during this long period the Bomans should have deeply planted their laws and institutions in the country they ruled. (a) This is hardly perhaps accurate, and conveys an entirely erroneous idea. Guizot points out the fallacy of supposing that the conquests of the barbarians were so sudden, so general, or so absolute as is supposed ; and the idea is especially fallacious with reference to the Saxon invasions, because these invasions were successive : the contest between them and the Britons lasted for centuries, the conquests were partial and gradual, and were not quite complete when the Danish invasion took place, but ended rather in a union of the two races, by means of intermarriages and a gradual amalga- mation of institutions. The contest can be traced all through the Saxon chronicles up to the tenth century, and in the course of those four or five centuries the process of amalgamation was going on. CHAP. I.] INSTITUTIONS THEY FOUND EXISTING. 168 ment and remains of their establishment (a). In so gen- eral a ruin, it cannot be imagined that the customs of the native Britons, or the laws ingrafted upon them by the Romans, could meet with any favor (6). The kingdoms of the Heptarchy were, for a time, inde- pendent of each other ; and though a like state of society and manners prevailing in all of them must of course have produced the like spirit and principle of legislation in common, yet their laws must have been specifically dif- ferent. Hence grew a variety of laws among the Saxons themselves (c). In the reign of Alfred, the Danes, who (o) This was so only at first and to a limited extent. So soon as they had made sure their footing in the country they were content to render the Brit- ons their tributaries ; and it was only those who refused to become so who were exterminated or expelled. This appears from a passage in Bede, cited by Lingard — who says: "After the adventurers had formed permanent settlements, thejr gradually abandoned their former exterminating policy, and suffered the natives to retain their national institutions as subordinate and tributary states." Bede gives an instance of both in Edelfrid, about the year 600 — "qui terras eorum, subjugatis aut exterminatis, indigenis, aut tributarias gente Anglorum aut habitabiles fecit" (Bede, Ixxxiv., Lingard's Hist. Eng., vol. i., c. 2). Both Lingard and Sir F. Palgrave represent the Saxon sovereigns as thus rendering the Britons their tributaries. (6) This inference arises from the notion, already shown to be erroneous, that the Saxon conquest was sudden and complete, instead of which it was slow and gradual; and thus, in the meantime, the two races became in a great degree united, and their institutions amalgamated, or rather the more civilized institutions of the Eomanized Britons were adopted ; the Saxons, still retaining also their own, which became by degrees first modified, and then, after the Conquest, superseded, as shown in the Introduction. Had the author made more use of the Saxon laws (after the conversion of the Saxons), even so early as the reign of Ina, he would have found the Briton and the Saxon put as much as possible on a footing of equality, based upon their common Christianity. The allusion here to the " 6nstoms of the native Britons," anterior to the time of the Komans, is, as already shown, with any reference to law, entirely fallacious; and instead of the laws of the Bomans being ingrafted upon those customs of a barbarous race, it is manifest from history that by degrees, as the race became civilized, they adopted the laws of the Bomans, not only as being the best possible laws, but as being the only laws they had any knowledge of. And for the same reason, as is amply shown by the authoritifes quoted in the Introduction, the Saxons, as soon as they be- came settled and civilized, adopted by degrees the Boman laws, discarding, by degrees, their own barbarous usages. (c) This was only true temporarily, if, indeed, ever really true at all ; and it certainly was never true after the country was at all settled under one rule. Nothing is mote remarkable, indeed, in the early history of the country, and nothing more clearly indicates the influence of the Boman law upon the barbarians, than the tendency shown in our earliest laws to imitate its com- prehensive character by forming laws for both, or aU the various races in the country. Thus, aa already mentioned in the laws of Ina, the earliest Saxon laws for the kingdom, there is an endeavor to apply the same laws to Britons and Saxons, and to blend both races under the same rule ; so in the 164 THE SAXONS. [chap. L had long harassed the kingdom, were by solemn treaty settled in Northumberland and the country of the East Angles, besides great numbers scattered all over the realm. The Danes were after this considered, in some measure, as a part of the nation. They were suffered to enjoy their own laws within their district ; and these, when their own kings sat upon the English throne, pervaded in some degree all parts of the country. Laws of the From these various causes it happened, that saxoDB. towards the latter part of the Saxon times, the kingdom was governed by several different laws and local customs (a). The most general of all these were the three following ; the Mercian Law, the West-Saxm Law, and the Danish Law. If any of the British or Roman customs still subsisted, they were sunk into, and lost in one of these laws {b) ; which governed the whole kingdom, and subsequent treaties between the Saxon Alfred and Guthrum the Dane, or between Edmund and Canute. And Canute and the Norman Conqueror pursued the same wise policy. (a) On the contrary, "towards the latter part of the Saxon times," the en- deavor was, whether the monarch was Saxon or Danish, to amalgamate the laws and render them uniform and equally applicable to all. And this was so far effected that it was carried out with few and unimportant exceptions, and those exceptions rather customs, or rude usages, which would never survive the least civilization, than of anything like laws. For instance, in the laws of Canute this is very remarkable, the reason assigned being the common Christianity of the various races, both Danes and Saxons being then Christians ; for he lays down a whole body of laws as equally applicable to all his subjects, without exception, and meeifim several peculiar barbarous usages which could not even be translated out of the language of the race to which they belonged, and these, and these alone, he says, pertains to such or such a race in particular. And there is some reason to suppose that even in these instances it is rather that there were different terms in each language for the same thing, since it is obvious that they denote substantially the same thing. With these unimportant exceptions the whole bulk and body of the laws are laid down generally of the whole people, which is shown plainly by the exceptions alluded to. And at the end there is this — " And he who violates these laws, which the king has nam given, to all men, be he Danish or be he English, let him be liable," etc. (c. 84). So of the laws of the Confessor, which are gen'eral, with one or two exceptions. (6] On the contrary, a general body of laws were framed, with one or two specific exceptions, applicable to the whole kingdom ; but very far from con- taining all the law, or excluding the Boman law, which had become incor- porated in the institutions of the country ; on the contrary, there was much that was mentioned, and of which the existence was implied, but of which the origin is not to be found in any of these laws, and which, therefore, could only have been derived from the Boman law. Throughout the whole of these laws there is no law establishing the division of the country into coun- ties or hundreds, or establishing courts of the hundred or county, nor manors, nor corporations, municipal or otherwise ; nor rules of descent and inherit- CHAP. I.J CHARACTER OF THEIR CONQUESTS. 165 have since received the general appellation of The Orni- mon Law. The history of this body of common law, with the divers alterations and improvements which its rules, its prin- ciples, and its practice have received at different times by acts of parliament, and by the decisions of courts, we shall endeavor to investigate and deduce in the following His- tory. The great obscurity in which all inquiries concerning these times are involved, renders it impossible to trace the history of laws with much certainty (a). For the' present, we must be content if we can collect what were the outline and striking features of the Saxon jurispru- dence in general ; without entering into any nice discus- ance, nor a variety of other matters, which nevertheless existed, and many of which are alluded to. The truth is, that these laws were only the written laws of the time, the leges scriptoe; but there was a vast deal of unwritten law, leges non seripUB, incorporated in institutions long established in the country, and upon some of which it may be that barbarian laws or usages engrafted some excrescences, which soon disappeared. The greater portion of these laws are little worthy of the nanie ; they were for the most part either pre- cepts of morality or embody some barbarous usages, such as pecuniary com- positions, the ordeal, compurgators, and the like, all which before long became obsolete, and such fragments as at all resemble law are rough and rudimentary. To suppose that these comprised the whole of the laws of the country would be an egregious fallacy ; they were merely the written laws of the Saxon or Dano-Saxon races, the contributions they brought, so to speak, to the general law of the nation — happily (as already observed) before long to be dis- carded. And so far from the Eoman law being sunk or lost in any of those barbarous laws, on the contrary, it was the Koman laws and institutions which have survived and remain to this day ; while, for the most part, those rude and early attempts at law have for ages been matter rather of antiqua- rian research than legal study. And the only use of the study of them at all is to illustrate what Montesquieu long ago observed, that barbarous races may indeed have usages but cannot have laws, and to show that so soon as they were civilized enough to understand and appreciate regular law, they would gladly avail themselves of the resources of the Eoman law, remod- elling and modifying it perhaps, but still applying it to their own use. (a) This obscurity was not a necessary incident of the study ; for the laws of Romans, of Romanized Britons, and of Saxons and Danes have been pre- served, and speak plainly enough ; but the author, having ignored the Roman law, and hardly given sufficient attention to the Saxon laws, lost the greater part of the light which was available, and so felt himself here in obscurity. The author was wrong in assuming that all the law there was in this country in the time of the Saxons was comprised in the laws they put into writing ; whereas these were only their first rude attempts at laws, and there was a vast deal of unwritten law practically embodied and in operation in actual existing institutions, to be found in the Mirror of Justice for instance, to which he did not advert; nor was he, it will be seen, sufficiently acquainted even with the written laws of the Saxons, while he avows that he had given no attention to the Roman period. 166 THE SAXONS. [CHAP. I. eion about the time and manner of the particular changes it might undergo during the long period before the Con- quest. If the law of a country is circumscribed in its extent by the bounds of a realm, much of its influence and ope- ration depends on the internal divisions of it ; and a his- tory of the law would be incomplete without noticing the parts of a kingdom (a) ; so far, at least, as the process of legal proceeding is affected by provincial limits. (a) Of this there can be no doubt ; and therefore, as has been seen in the Introduction, the Komans always established a very complete and elaborate political organization in a conquered country, and thus Britain with other "dioceses" of the empire were divided into "provinces," and these again were sub-divided into smaller districts under " comites," or counts, and hence called "comiiales," or counties; and there is every reason to believe that there may have been another system of division into centuries and decen- naries, for the Romans had such a division in their own country, and a large portion of this country was colonized by Boman citizens, whether of Koman, Briton, or foreign origin. Such a division was found existing here soon after the Saxon times, and no Saxon law established it, though it is alluded to in the Saxons laws as existing. And though some of the Germans had a system of dividing the population into centuries, it was only numerical and military in its nature, and does not seemto have been a civil and political division, and territorial in its character, as it was among the Bomans. To adapt it, however, to the purposes of settled civil government, it is obvious that it must have been founded on the number of habitations or estates of free citizens, rather than on mere numbers of men ; and thus would give it a territorial character. On the other hand, it will be shown that this was a mode of division which, from its nature, as necessarily numerical, could not be formed by sub-division of counties, or other divisions merely territorial, but must rather have been formed by aggregation of estates and habitations, so that the division into counties and hundreds must have been independent. The common notion that counties, which are local, were "divided into" hundreds, which were originally numerical, and only incidentally territo- rial, must therefore be erroneous, and that it is so is shown by the fact, that parts of hundreds are sometimes in different counties. The basis of the divi- sion into hundreds must be sought in some independent system pre-existing: and out of which it could be formed by numerical aggregation, first into tens, and then into hundreds. Now, such a system existed among the Bonians, in the manorial system, the growth of that colonial system which they ap- plied to the cultivation of a conquered country. No grants of land would be made, except to free citizens, whether of Boman, of Briton, pr of foreign birth ; and these dwellings would form the basis of the division into tens and hundreds — a division which would thus be at once numerical and terri- torial.^ As the grants of land would vary in size, the hundreds would equally vary in their extent (as is found to be the case) ; and also would be found partly in one county and partly in another. This latter fact, indeed, might also be accounted for by the boundaries of the counties, having been subse- quently rearranged ;_but_ then, on the other hand, it would also show that the systems of division into counties and hundreds were distinct and inde- pendent. Further, the view here suggested as to the origin of hundreds is supported by the close connection which has always subsisted between the hundreds and the manors. From the earliest times it has been recognized CHAP. I.] DIVISIONS OF THE COUNTRY. 167 The division of England into counties is very ancient ; but is said to have been reduced to its present appearance that a hundred may be parcel of a "manor, or appurtenant property to a manor ( Year-Book, 11 Hen. IV., 89 ; 8 Hen. VH.). So a hundred might»- t. e., as a franchise, and not merely as a territory — be the property of a par- ticular person, who, in ancient times, would probably be called or named from it, and thus there is a hundred in Devonshire named Coleridge (9 CoMs JJep., B. 30), from which, no doubt, an illustrious family who have been settled there, it is known for many generations, derived their name, possibly long before the Conquest. The mention of that name reminds the editor that Sir John Coleridge, in his valuable edition of Blackstone's Oammentanes, ex- presses an opinion, as Lord Coke had done long before, adverse to the com- mon notion that Alfred divided the counties into hundreds, or indeed that any one so divided them : and he points out their irregularity of size and position as negativing that view. The view of the editor, that they were formed rather by aggregation than division, and that the counties also were 80 formed, is strengthened by the extreme antiquity of the court "leet" of the hundred, which, in the Tear-Book, is seen to be " the most ancient court in the kingdom" (Tear-Book, 7 Hen. VI., 12). It may here be observed, that from want of attention to the history of the subject, great doubt and ob- Bcnrity arose as to the real meaning of a " hundred ; " and in the reign of Henry VII. it was actually said from the bench that a hundred meant a hundred vills, or a hundred houses, or a hundred parishes ( Tear-Book, Hen. Vn.). The latter idea of course is absurd ; the two former were at vari- ance, and were so, even as long ago as the reign of Henry VII., by reason of the changes and the increase of population ; so that a hundred would con- tain of course far more than a hundred houses. But it was not so at the time when the country was colonized by the Bomans, nor at the time of the invasion by the Saxons. The derivation suggested, however — from the manorial system, founded by the Bomans — makes all plain, and reconciles these views. For although, originally, the hundred would mean a hundred free citizens, that, in the country, would mean a hundred villas, and the local and numerical division would coincide. In course of time, as the vil- leins became emancipated, and the villas became the centres of clusters of houses of free tenants, vills Or towns would arise ; and to this day, in remote parts, a farm is called a town. And though these would be of too late a formation to have been municipalities under the Boman system, they would, many of them, become " boroughs " under the Saxon system, which was, like other Saxon customs, superinduced upon the Boman institutions. " Borhs," or boroughs, under the Saxon system, were simply aggregations of freemen into tens for the purpose of mutual guarantee and self-defence ; and thus, side by side with the Boman cities or municipalities, rose up the Saxon vil- lages, towns, and boroughs. That the municipal system in England was of Boman origin, is historically clear. Lord Coke indeed states that boroughs were vUIas, vills, or towns, and were in former times taken for those compa- nies of ten families, which were one another's pledge, and therefore in the Saxon laws called " borhs" or burghs (1 Inst., 109). But, as already shown, the aggregation of families into tens was of Boman origin, and only adopted by the Saxons into their frankpledge system, or, rather, probably suggested it. And it is hardly necessary to say that the Boman system was essentially municipal, and encouraged municipal corporations ; and it is certain that most of our cities can be traced to Boman times, while the boroughs are of later and Saxon origin. In the Mirror, the body of which was written in the Saxon laws, it is said that villeins are tillers of land, dwelling in upland {i, e., country villages) ; for of vill cometh " villeins." And the derivation 168 THE SAXONS. [chap. I. by Alfred (a). That great prince carried his scheme yet further ; and subdivided counties into hundreds, and hun- dreds again into tythings. This parcelling out of the king- dpm into small districts, was made subservient to the well- ordering of the police, and the due administration of j ustice; as will be seen presently. There was another division purely ecclesiastical (b). Parishes, and even mother- of it from the Eoman " villa " is obvious. And as Littleton said, " Every burgh is a vill, but not e eonverso," and a vill, from villa, was originally the Eoman phrase for a house in the country, while " town " was the Saxon or British word for it. And thus, as Lord Coke says, the villeins or cultivators were so called from the word " villa," being attached to the villa or country house, or the estate belonging to it, i. e., the manor. Thus the whole organi- zation of the country, political, social, or municipal, appears to have been of Eoman origin. (a) The popular notion had long been that he first made this division. Even in Lord Coke's time this was understood to be a fallacy, arising from a passage in William of Malmesbury, which was either erroneous, or has been misunderstood. Lord Coke pointed out that the realm was divided into shires and counties, cities and farms, by the Britons, by which he means the Eoman Britons ; for, he says, the Eomans called the county comitatus, and the principal officer, consul ; so that King Alfred's division of shires and counties was but a renovation or more exact description of the same (1 Inst., 168). Thus Lord Coke cites a passage from the laws of Edward: — Apud Britones temporibus Itomanorum in Eegno isto Britannise, vocabantur sena- tores, qui postea, temporibus Saxonum, vocabuntur Aldermani, etc." And again, Verum quodmodo vocatur comitatus, olim apud Britones temporibus Bomanorum in regno isto Britannise, vocabantur consulatus: et qui modo vo- catur vice comites, tunc temporis vice consules vocabantur," Thus, in the time of the Saxons themselves, it was recognized that these primitive insti- tutions and divisions of the country were as ancient as the times of the Eomans. The truth is, that our whole system came from the Eomans, and the Saxons only gave them, in some instances, new names or new arrange- ment. This seems indeed indicated by the way in which the author puis it. (6) A parish is an ecclesiastical division, as a vill or town is a civil divi- sion ; but, as, originalljr, where there was a vill or town, there was spiritual provision made for the inhabitants, the parish was presumed to be identical with the vill until the contrary appeared, and indeed Lord Coke lays it down that there could not Ije a town without a church (1 Inst., 169) ; for«a town meant at first a vill, from the villa of the lord of the manor ; and though no doubt the provision was first made by lords of manors, on the other hand, a parish might contain a whole hundred, as the parish of Fountain Dean (Skin., 50 ; Addison v. Otway, Freeman's Rep., 218). If the hundred happened to be small, and the lords of manors poor, they might aggregate togettier to make a provision ; and this permanent provision or endowment for a specific place or district created a parish. There can be little doubt that the manorial system was the basis of the parochial, and that the lords or owners of estates made this provision, either for churches on their own manors, or for churches for districts formed from several manors. In course of time tlie spiritual dis- trict thus forped foreach church would be known, and thus would constitute an ecclesiastical division. So the offerings which were originally voluntary would become customary, and lastly would be rendered obligatory by law, and then would arise the necessity for some legal appropriation of the tithes CHAP. I.] NATURE OF TITLES OR JURISDICTIONS OVER LAND. 169 churches, were known so early as the time of King Edgar, about the year 970 ; for the consecration of tythes before that time being arbitrary, it was ordained by a law of that king,^ that all tythes should be paid ecclesice ad quam paro- chia pertinet. Besides these divisions, there was another that had reference to the conditions under which the land of every one was possessed; a division which regarded the nature, description, and incidents of landed property. On this, together with that of counties, depended the bounds and extent of judicature. The lands of the ^Saxons were divided into '^"livitad?* thainhnd and revelam, (a). Land granted to to these ecclesiastical divisions. Hence the law of Edgar that tithe be ren- dered to the old church to which the district belongs, and be paid both from the lord's own demesne land and from the land of the villeins, so far as it was cultivated {Laws of Edgar, 1) ; but that if any lord had a church on his own land, he might give a third of the tithes thereto ; that is, in cases where the lord had built a church on his land^ subsequent to that which had by custom become the mother-church of the district (Laws of Edgar, c. 2). The Saxon word here used is rendered in the Latin version " parish ; " and it will be observed that the earliest law relating to the subject' connects the parochial endowments with the manor. The author had omitted all mention of the origin of the manorial system, which naturally would have preceded the parochial. (a) No mention is made of this division in the Saxon laws, but it is found in Domesday. It seems, however, rather fiscal than political. Lord Coke says : — " It is to be observed that, in the book of Domesday, land holden by knights' service was called Tainland, and land holden by socage — i.e., rent or certain services — was called Eeveland, which appeareth in that it is said there: ' Haec terra fuit terra regis Eduardi Tainland: sed postea con- versa est in Eeveland'" (1 Inst., 86). Elsewhere, he says that the tains (thanes) held of the king by military service, and were freeholders, and were sometimes called milites regis, and their land called thane land. But thainus regis was a baron ; and there were lesser thanes who did not hold of the king, but of great thanes (Ibid., 5). Hence, it appears that thane land was originally held on knight-service from the baron, but afterwards som^ of it became freehold land, and included land not held of the crown, but of other proprietors. All the manors were the freeholds of the lords ; their, villein-tenants holding of them by servile tenures. As to the reveland, it meant land held of the king by tenure otherwise than military. Afterwards, in describing tenure by knight-service, Lord Coke says : — "In ancient times they which held by knight-service were called milites, and held by such service for the defence of the realm, and had their privileges, especially freedom from talliages or taxes" (76). In Domesday it is written :_ " Quod thainus vel miles regis moriens, pro relevanti dimittebat regi omnia arma sua," etc. Thus, therefore, Tainland meant land held by military service, and free from the taxes the sheriff collected, and Eeveland meant land liable to such taxes. It is to be observed that there are many manors in the lands of the crown, the tenants of which, who were called tenants in ancient de- mesne (from their holding under portions of the ancient demesnes of the ^ Leg. £adg., cap. i. 15 170 THE SAXONS. [CHAP. I. the thains, or lords, was called thainland: That over which the king's officer (called in their language shire-reve, since s/ien^) had jurisdiction, was called revehnd. Again, the former being held by charter, was otherwise called boc- land or bookhnd (a) : Land of the other kind, being held crown), owed contributions in kind for the supply of the sovereign, which were afterwards commuted by talliages ; and so of the tenants in burgage — i. e., tenants of houses in ancient burghs or vills on lands belonging to the demesnes of the crown (Maddox, 520). Now, when these were held by the thanes, they settled for these talliages ; otherwise, — i. e., if in the lands of the crown, — they were accounted for by the sheriff. In process of time the lands in ancient demesne were let out or farmed at rents, and other land not of ancient demesne were so let or farmed. Such lands as the above were held by the crown for profit, and so came under the jurisdiction of the king's fiscal officer, the sherifi" (shire-reeve or steward) ; but land held on knight- service was held, not for profit, but the defence of the realm, and so was not deemed under the jurisdiction of the sherifi". (a) The learned author is not quite accurate here. The earliest mention of " boeland" is in the laws of Alfred (141) : " The man who has bocland, and which his kindred left him ; he must not give it from his kindred, if there be writing or witness that it was forbidden by those men who at first acquired it, and by those who gave it to him, that he should do so" [Anglo- Saxon Laws, vol. i., p. 89). Then, in the laws of Edward (a. d. 900), it was ordained as to " one who denied justice to another, either in bocland or in folcland," that he should give him a term respecting the folcland, when he should do him justice before the reeve (the sherifi') ; but if he had no right either to the bocland or folcland, he who denied the right should pay a fine to the king (Laws of Edward, s. 2: Ang.-Sax. Laws, v. i., p. 161). In the same laws mention is made of " folc-right." And among the Saxon oaths there is this, which evidently refers to land : " Bequeathed it, and died he who it owned -^iih fuM folh-right, so as it his elders lawfully got and let and left in power of him whom they well gifted ; and so I have it as he gave it who had it to give, and I possess it as my own property" {A.-S. Laws, v. i., p. 183). By the laws of Edgar, "folk-right" was to be pronounced every term in the county court (v. 7), and if a thane had a church on his bocland, he might give a third of his tithes to its support (A.-8. L., p. 263). In the laws of Ethelred it is enacted that the king should have the fines of those who had bocland {Bnd., 283). By one of the laws of Canute, if an outlaw had bocland, it should be forfeited to the king (s. 13, A.-S. Laws, v. i., p. 383). From these passages it will be seen, (1.) that the bocland was in- heritable and disposable, though it mighty by special condition in the do- nation, be entailed or limited to the family of the donor ; (2.) that as to bocland, it could become forfeited to the king by the crime of the owner, whereas this was not so as to folcland ; (3.) that claims as to folcland were determined by the sherifi' in the county court, whereas it should seem that claims of bocland were determinable in the king's courts. So much infor- mation on the subject is derivable from the Saxon laws themselves. Spel- man describes folcland as "terra popularis quse jure communi possidetur, sine scripto" (Gloss., Folcland). In another place he distinguishes it from bocland thus : " Prsedia Saxonis duplici titulo possidebant ; vel scripti au- thoritate, quod bocland vocabunt ; vel populi testimonio, quod folcland dix- ere" (Ibid., Bocland). These definitions, it will be observed, are quite difi'erent — the former making the distinction one of tenure, the latter one rather of mere title or conveyance. Spelman, however, and Lambard. GHAP. I.J NATURE OF TITLES OR JURISDICTIONS OVER LAND. 171 without writing (probably by those who remained of the first inhabitants of the country), was oliherwise called erroneously imagined that folcland was only possessed by the common people ; and Blackstone still more erroneously (following Somner) supposes it was land held in villenage. It should seem that folcland was not inheritable or devisable except by special grant. But there are deeds or wills in which the owners of folcland beg that it may be permitted to descend to their sons (Anglo-Saxon Diet., App. ii., 2). A learned author says: — "Folcland was the land of the folk, or people. It was the property of the community. It might be occupied in common, or possessed in severalty ; and in the latter case it was probably parcelled out to individuals in the folkmote, and the grant sanctioned by the freemen who were present. But while it continued to be folcland, it could not be alienated in perpetuity ; and therefore, on the expiration of the term for which it had been granted, it reverted to the com- munity, and was again distributed by the same authority" (Allen's Inquiry into the Rise and Growth of the Royal Prerogative, p. 143). The definition nere given remarkably resembles that of the public lands among the Bomans, and affords another instance of the illustration of our ancient law derivable from the Roman. The same learned writer also points out that the folcland was assignable to the thanes on military tenure — i. e., on condition of mili- tary services — and that again resembles the public lands of the Bomans. Mention is made in the Anglo-Saxon laws of land held in common by the ceorls or husbandmen (Laws of Ina, a. 42). Folc-right was the original un- written understood compact or custom by which every freeman enjoyed his laud, and folcland was one of those rights. The same learned author defines bocland as "land held by book or charter — that is, land which had been severed by an act of government from the folcland, and converted into an estate of perpetual inheritance. It might be held by any freeman, and most of the land of the higher thanes consisted of it. It was alienable and de- visable at the will of the proprietor, and might be limited in its descent, and it was forfeited by various delinquencies to the state." He adds, — " Estates in perpetuity were usually created by charter, after the introduction of writ- ing, and on that account bocland and land of inheritance are often used as synonymous." This, however, appears to confound title and tenure, for at a far later period feoffments in fee were common — that is, transfers of an ab- solute and inheritable property by mere open delivery of the land ; and the learned writer indeed adds : "At an earlier period they were conferred by delivery, nor was this practice entirely laid aside after the introduction of writing." It is not therefore correct to say that all the lands of the Saxons were either folcland or bocland. When land was granted in perpetuity, it ceased to be folcland, but it could not with propriety be termed bocland, un- less it was conveyed by a written instrument. The best possible definition of the term folcland is afforded in a passage in the Mirror, in which, de- scribing the condition of the country in the earlier times, it says, that " some had their lands to hold by homage and by service for the defence of the realm, and some by villein customs, as to plough the lord's lands, to reap, and cut, and carry his com and hay; and although the people have no charters, deeds, nor muniments of their lands, nevertheless, if they were ejected, they might be restored to their estates, because they could show the certainty of their services and works by the year, as those 4hat their ances- tors before them a long time had rendered ;" and then it is added that King Edward in his time caused inquiry to be made of those who held of him by services, as to their lawful customs. It is mentioned also that a lord might give a villein land to hold to his heirs, even by taking his homage for it, without any deed. Thus the great body of the people held their lands with- 172 THE SAXONS. [CHAP, I. foMand; a distinction, which., after the feudal law was established, received other appellations of a similar im- port (a). That within the jurisdiction of the sheriff was then called allodial; that held of lords, feudal. The pos- sessors of such as has since been called allodial were styled, in the laws of those times, liberi, being subject to the king alone in his political capacity ; in contradistinction to ten- ants under the dominion of the thains, who were called vassals, being subject to the control also of their lord. The civil state of the Saxons was of this reemen. ]^jj-^^_ rjij^^ whole uation consistcd of freemen and slaves. The freemen were divided into two orders, the nobles and the ceorls {b). The nobles were called thanes, out deeds, and only by the evidence of actual possession and enjoyment upon certain known services notorious to the people, and attested by them, and therefore called folc-right," for on any question the " folc " would, in the folcmote or county court, testify about it. And as the great body of the people held their lands by the evidence of custom, this was what made them after the Conquest call so often for the cuatoma of King Edward — i. e., the customs known in his time. (a) The next paragraph is obviously erroneous. It confounds two divi- sions or classifications which are plainly distinct and different. The one — the distinction between bocland and fololand — relates rather to the nature of the ground of the right, be it deed or be it custom ; the other relates en- tirely to the nature and quality of the right, be it feudal or allodial in its tenure. And the author also further confounds these divisions with the distinction between thaneland and reveland, which again is ^uite different and distinct. There might be bocland not inheritable, there might be folo- land which was. There might be feudal land which was not bocland, (in- deed feudal tenure was never created by deed,) and yet would not be folcland, as not held by popular custom, but by military tenure. The fiscal jurisdic- tion of the sheriff, again, had nothing to do with the feudal land or allodial land ; not the former, for the services were military ; nor the latter, because there were no services at all ; the distinction between feudal and allodial being that the one was derived from fee-od, meaning land held by way of fee or re- ward, and therefore reverting on failure of the same ; and the other from all-od, or land not so held, but held in full, entire property without any tenure or liability to service. Allodial land meant land inheritable, and not feudal, nor subject to services, the owner being absolute owner, and subject only to the crown in its political capacity, and therefore not contradistinguished from tenants who held under tenure of services to thanes, but from tenants who held under tenure of services to the crown ; that is to say, what we now call " estate in fee simple." It may be proper here to mention that in the ancient language of the law the custom of the country meant the custom of the county, and thus Bracton and Glanville speak of the customs of the different counties (lib. mv., c. 8). (6) This distinction is drawn much too sharply, and is indeed not accurate. There were nobles, freeholders, villeins, and slaves, all quite distinct classes. There were freemen, who were neither nobles nor ceorls. The ceorls (pro- nounced churls) were the villahi of the Roman times and the villeins of the Normans; and they were not freeholders, but held on servile tenure; and CHAP. I.] RANKS, AND ORDERS OF THE PEOPLE. 173 and were of two kinds, the hinges thanes and the lesser thanes. The distinction between them seems to be, that though they were quite different from the " theoWB,'' or slaves, they were a species of serf, and were apparently distinguished from the freemen, the liberi homines, who were freeholders. The distinction between " freemen," and " ceorls," and " theows," will be found drawn throughout the Anglo- Saxon laws from the earliest times, of Ethelbert (Ang.-Saacon Laws, v. 1., p. 9). The ceorls or villani were no doubt an inferior order of freemen, and themselves had theows or slaves {Laws of King Alfred, 25), and they often rose to the rank of freemen by acquiring land. The " theows " or slaves were either Saxons or Britons {Laws of Ina, a. 24) ; and it should seem from direct evidence of the laws, and the resemblance in sound between the word "theowe" and "thieve," that "thieves" were made "theows," and con- demned to slavery {Laws of King Edward, s. 29). The lesser thanes were simply freeholders, and a " ceorl " might rise to the same rank if he had acquired land to the amount considered equivalent to a qualification {Anglo- Saxon Laws, p. 189) ; so a Briton might be free, even though he had no land, and might rise to the rank of a ceorl. The highest temporary rank was that of the earl ; the next was that of the king's thanes or nobles ; then came the freeholders, who were the lesser or "medial" thanes, usually hold- ing of the king's thanes {Anglo-Saxon Lams, v. i., pp. 192, 193). Then came the "ceorls" or villeins, and lastly the "theows" or slaves. The qualifica- tion was that of property, or rather, to be more accurate, a property qualifi- cation was required. " If a ceorl thrived, so that he had freeholds of his own, land and church and kitchen, i. e., house, and a seat in a church, and did special duty in the king's hall, then he was thenceforth thought worthy of thane-right. And if a thane thrived so that he served the kin^, and had a thane who followed him, etc., he became a king's thane ; and if a thane thrived so that he became an earl, then was he thenceforth thought worthy of earl-right. And if a merchant thrived so that he fared twice over the wide sea by his own means, then was he thought worthy of thane-right. And so of a scholar who through learning thrived so that he had holy orders," etc. {Anglo-Saxon Laws, v. i., p. 133). The alderman was the chief of a hundred {Laws of Edgar, 8), as the earl or count was of a county ; and the sheriff (shire-reeve) was the deputy of the earl, and hence called viscount {Laws of King Athelstane, 91 ; Laws of King Edgar, 13). The grades of rank were earls, king's thanes, and lesser thanes {Laws of Canute, s. 72), " Taini lex est ut sit dignus rectitudine testament! sui" (Eectitudines Singularum Personarum, Laws of Anglo-Saxons, p. 433). With regard to the condition of men before the CJonquest, the author omitted to notice two passages, one in Bbacton, and the other in the Mirror. These pass^es show that there were under the thanes a class of men who held land by free services or customs, who were gradually raised to the position of freeholders, and this is confirmed by the Saxon laws. The Mirror says that by the first conquerors — which must mean the Saxons or Danes — the earls, and barons, and knights were feoffed of lands in knight- service ; and villeins of villenages, whereof some receive other lands without obligation of service, as in frankalmoigne ; and some to hold by homage and service for defence of the realm ; and some by villein customs, as to plough the lord's lands, to reap, cut, and carry his com and hay, without giving of wages ; and that King Edward in his time caused inquiry to be made of all such who so held and did to him such service ; and afterwards {i. e., after the Norman Conquest), many of these villeins, by wrongful distresses, were forced to do their lords other services to bring them into servitude again (c. 2, s. 28). And this certainly agrees with a passage in Bracton which states to the 15* 174 THE SAXONS. [CHAP. I. the former were next in rank to the king and independ- ent ; the latter were dependent on the king's thanes, and seem to have occupied lands of their gift, for which they paid rent, services, or attendance in war and peace. Noble descent or possession of land were the two qualifications that raised a man to the rank of thane. The inferior rank of freemen, called ceorls, were chiefly employed in hus- bandry ; so much so, that a ceorl and a husbandman be- came almost synonymous. These persons cultivated the farms of the nobility, for which they paid rent ; and they seem to have been removable at pleasure * (a). The next order of people, and a very numerous body they were, was that of the slaves or villains, a lower kind of ceorls '^ (6), who, being part of the property of their lords' (c), were incapa.ble of holding any them- Bame effect : " Fuerunt in conquestu liberi homines qui libere tenuerent tene- menta sua per libera servitia, vel per liberas consuetudines, et cum per potentiores, ejecti essent postmodum reversi receperunt eadem tenementa Bua tenendain villenagio, faciendam inde opera servilia sed certa et nomi- nata, et nihilhominus libera quia licet faciaut opera servilia" [lb., i., c. 11, fol. 7). Hence it appears that the ceorls were freemen, who, however, had not generally their lands on freehold tenure, but in villenage, and that they were gradually having their tenure raised to freehold by their services being rendered certain and their tenure inheritable. And this quite agrees with the Saxon laws which diBtinguish the ceorls from the theowa or slaves; and throughout speak of them as freemen, and yet at the same time speak of them as sometimes acquiring freehold lands, which shows that though their persons were free, their lands were not so in general. (o) This and what follows, it will be seen, is erroneous. The ceorls were the villeins, and they originally held lands of their lords on condition of agricultural service, which in a certain sense was servile, but in reality was not so, as the actual work was done by the theows or slaves, which our author confounds with the ceorls or villeins. The ceorls did not pay rent, and were not removable at pleasure ; they went with the land, and rendered services, uncertain in their nature, and therefore opposed to rent. They were the originals of copyholders, who were deemed to hold according to the custom of the manor, and not merely according to the will of the lords; and hence, in the laws of the Conqueror, it was said, that they could not be removed at pleasure, so long as they rendered their accustomed services. Here the force of custom is seen, in modifying or creating rights. The distinction between the ceorls and the slaves will be manifest, and yet in the next sentence they are confounded, (6) These slaves were not ceorls, but theows were slaves. (c) AU this applied only to the theows or slaves, not to the villeins or ceorls. Throughout, the author confounds these classes, the reason being, as appears from the authorities he cites on this subject, that he took them at second-hand, instead of consulting the laws themselves. ' Spelm., Feuds, p. 14. ' Persons of this rank were called by the Saxons Themo, or Theovmen, as Appears by LL. Will. Conq., 65, 66, and in LL. Hen. I., 77, 78, servL 'Spelm., Feuds, p. 14. CHAP. I.] THEIR POPULAR JUDICATURE. 175 selves. These are the persons who are described by Sir William Temple, as " a sort of people who were in a con- dition of downright servitude, used and employed in the most servile works, and belonging, they, their children, and effects, to the lord of the soil, like the rest of the stock or cattle upon it " (a). However, the power of lords over their slaves was not absolute. If the owner beat out a slave's eye or teeth, the slave recovered his liberty.* If he killed him, he paid a fine to the king.^ These slaves were of two kinds, prsedial and domestic. We shall next take notice of the judicature of the Sax- ons, which depended, as we before said, on the division of land. In the thainland, the thain himself was the judge (6): so the judge of the reveland was the reve, or (o) It is not worth while to verify this quotation (for which no reference is given), since it is certainly wrong, as will be seen from what has been stated. (6) That is to say in the court-baron, the court of the lord of the manor. It was only in a court-baron, or court of a manor, that (apart from every special liberty or franchise) there was any other local jurisdiction than that of the courts of the hundred of the county. On the other hand, it will be observed that the court of the lord of a manor was quite different from, and not in any way derived out of the county court, nor connected with it at all, as the hundred court was ; it was rather a different jurisdiction, independent of the county court. This is noted because in a subsequent passage the author speaks of the court-baron as derived from the county court — a great mistake, arising from his not having traced the origin of the manorial sys- tem, and seen how distinct it was from the political system, to which the county belonged. So the next paragraph is incorrect in describing the sheriff as the "judge " of the county court, and his jurisdiction as arising from its being reveland — a distinction already noted as (fiscal, not judicial. The sheriff was not judge of the county court, according to the Saxon theory, but the suitors or freeholders were ; and so of the hindred court ; but the author does not mention they were the judges. By the laws of the Saxons, the courts-baron, or the courts of the thanes or lords of manor had jurisdic- tion in matters arising within their manor, and between their tenants, but the general jurisdiction was in the courts of the hundred and of the county, the rule as to inferior courts being, that if the matter .arose within the juris- diction of the local court, it would be dealt with in that court, otherwise in the next higher court ; and if it did not arise between parties in the hundred, then it would go to the county court. The folcmote, or county court, had general jurisdiction in matters of debt (Laws of Alfred, 221 ; Anglo-Saaxm Laws, vol. L, 77) ; and the sheriffs (ahire-reeves) were to hold the courts {Laws of Edward, 12) and were to hold the motes or assemblies every month (Ibid., 11). And from the same laws it appears that the county courts had unlimited jurisdiction, even as to land, provided the matter arose between men of the county, and as to land in the same county (Laws of Edgar, 7 ; Anglo-Saxon Laws, v. i., p. 261). The general rule was that no man should go into the king's courts unless he could not obtain justice at home, i. e., in the local courts (Ibid., 217). The hundred court, or the court of the county » LL. Alf., sec. 20. ' Ibid., 17. 176 THE SAXONS. • [CHAP. I. shire-reve, whose great court was called the reve-moie, or shire-mote, and at other times the /ofc-mofe^ (a). The limits for the hundred, was to be held every month, and the general county court twice or thrice a year — the sheriff holding the county court in each hundred in turn, whence it was called his "tourn." So, in the laws of Canute," Let no one apply to the king, unless he may not be entitled to justice within his hundred, and let the hundred-mote be applied to, and then again let there be a shire-mote" {Anglo-Saxon Laws, p. 387). The lords had jurisdiction over their own tenants in their own courts, the courts-baron of the manors ; but if they were accused by others, then the hundred courts had jurisdiction ; and hence, in the laws of Canute, " Let every lord have his household in his own ' burgh ' (or jurisdiction), and if any one accuse his man of anything, let him answer within the hundred where he is cited " (Anglo-Saxon Lama, p. 395). So in the laws of the Confessor, after stating that " Justicia Begis cum legalibus hominibus provincee illius assit ad judicium ; barones autem, qui curias suas h'abeant, de hominibus suis; videant ut ita agant de eis c^uatenus erga dominum reatum non incurrant et regem non offendant. Et SI placitum de hominibus aliorum baronum oritur in curiis suis assit ad placitum justicia regis, quoniam absque eo fieri non debet. Et si barones suit qui judicia non habeant, in hundredo uhi placitum habitnm fuerit, ad propinquiorem ecclesiam, ubi judicium regis erit, determinandum est, salvis rectitudinibus baronum ipsorum" (Anglo-Saxon Laws, p. 446). And these franchises of the lord's courts are thus explained in the same laws: "Comi- tes, barones, et milites suos, et proprios serientes suos, sub suo frithborgo |a Saxon word, signifying jurisdiction) habebant; quod si ipsi foresfecerent et clamor vicinorum insurgent deles ipsi haberent eos ad rectam in curia sua, si habebant sacham et socham, tol et tlieam et enfangenthef : soche est quod si aliquis querit aliquid in terra sua, etiam furtum sua est justicia ; si inven- tum fuerit^ an non. Sache, quod ai aliquis aliquem nominatim de aliqui calumpniatus fuerit et ipse negavjerit, foris factura probacionis vel negacionis si evenerit, sua erit. Tol, quod nos vocamus theloneum scilicet libertatem emendi et vendendi in terra sua. Theam quod si aliquis aliquid intercubatur super aliquem, et ipse non poterat warrantum suum habere, erit forisfaotura, et justicia : similiter de calumpniatore, si deficiebat, sua erit. De infangen- thef Justicia cognoscentis latronis sua est de homine suo si captus fuerit, super terram suam. Et ille qui non habent consuetudines quas supra dixe- rimus, ante justiciam tegis faciunt rectum, etiam in hundredo, vel in wapen- tagiis, vel in schiris" (Laws of Edward the Confessor, c. 22). And if a thing was found, and a question arose, " Si dominus in cujus terra iuventum est non habet consuetudines suas scilicet socham et sacham, omnia liherabit prefecto hundredo si haberi voluerit. Et si dominus ipsis habet suas con- suetudines, in curia dqmini sui teneat rectum" (Ibid.). (a) This was the coiinty court, which was, so lately as the reign of Henry II., the only court for ordinary suits between party and party above the court of the hundred. There was also the court of the county for the hun- dred, which was held once in every four weeks (Laws of Edward, s. 11 ; Anglo-Saxon Laws, p. 165). It is there laid down that the reeve or shei'iff of the county should hold a " mote " once in every four weeks ; and from subsequent laws it appears that this meant in the hundred (Laws of Edgar, 5, p. 269). " Let the hundred-mote be attended as before, and twice a year a shire-mote." And no man was to apply to the king, unless he could not get justice in the hundred (Carmte, 17) ; and twice a year there was to be the shire-mote (Ibid., 18) ; the eldermen might preside over each hundred (Laws of Henry, 1, 8). And thus the hundred court was a civil court, though it ' Dalr., Feud. Prop., p. 11. CHAP. I.] THEIR POPULAR JUDICATURE. 177 between the official judicature of the king's courts and the court belonging to the lord, were strictly preserved : only when the lord had no court, or refused to do justice ; or when the contest was between a vassal of one and a vassal of another ; then the suit was referred to the king's court, namely, to the reve-mote of the sheriff. Though the sheriff, earl, or elderman (by all which names he was known) had properly the government of the county (a), a bishop was always associated with him in judicial matters. The bishc^ and sheriff used twice a year to go a circuit, within a month after Easter, and a month after Michaelmas ; and held the great court called the toum, in was also criminal (Laws of William, 51). As already seen, the hundred court, like any local court, would not have jurisdiction unless the matter arose, and both parties resided, within its local limits ; and hence the neces- sity for the larger jurisdiction of the county court or "toum " — the former the civil, the latter the criminal jurisdiction, held by a kind of "toum" or circuit twice a year, when all causes, civil or criminal, arising within the county could be tried. The Mirror says, in a part of the work the antiquity of which is obvious, " Des assemblies primes vindrent consistoires que I'un appel courts, et ces in divers lieus, et en divers manieres, dont I'un court tenoient les visconts de mois en mois ; on et celes courts sont appelles coun- ties ou les judgments si sont par les suitors, si href ne y soit, et ceo est per gurrant de jurisdiction ordinaire. L' autre mesnes courts sont les courts de chacune sieurs del flef al foer del courts hundreds. En les quelles courts ouent connaisance de dets et de transgressions et tiels autres petits peches que ne passent my 40 s. en le valew. Et aussi elles ont connaisance de tres- pass et forfeitures des fief parenter ces sieurs et leur tenants. Autres mesne courts sont, que les bailiffs de Koy tenoient, en chescun hundred, de trois semaignes, et les suitors des fief tenants des hundreds". (Le Myrrour des Jus- tices, c. i., s. 15). Here it will be seen that the county courts were held in various places (no doubt hundreds) once a month ; which were distinguished from the great county courts, held only twice a year, answering to our assizes. And that the courts baron were distinguished from the courts of the county, or hundred, as having only jurisdiction to the amount of 40 s. ; except on matters of tenancy, as to the lands within the|manor. (a) This is inaccurate. The earls, counts, or comites, were chiefs of coun- ties; the sheriffs — vice comites or viscounts — were their deputies; and ealdermen, who answer to our modern aldermen, were chiefs of hundreds. It is only in the most general way that these latter dignities could be identi- fied, as it is explained in the laws of the Confessor, "reve" being a general appellation. Beve autem nomen est potestatis ; est enim multiplex nomen : reve enim dicitur de scira, de hundredi, de villis ; et sicut modo vocantur reves, qui habent prefecturas super alios, ita tunc temporis eldermen ; non propter senectutem ; sed propter sapitentiam" (Ang.-Sax. Laws, p. 456), and the term eldermen in this sense was general, and is sometimes applied to the chief of the county as well as the hundred (Law of Ganute, s. 18). But all through the laws the office of reve, or sheriff, or shire-reve, is spoken of as distinct from that of elderman or earl ; which latter indeed was rather a name of dignity than of office. " Twice a year, let there be a shiremote, and let there be present the bishop of the shire and the elderman " (Laws of CanvU, pp. 1-18 ; Ang.-Sax. Lwm, p. 38). M 178 THE SAXONS. [CHAP. I. every hundred in the county (a). This was the grand criminal court, in which all offences both eccle- Thetourn. gjg,gt.^gg.i g^„^ piyii ^gj.g tried. On the examina- tion of the former, the bishop sat as judge, and the sheriff as coadjutor, to inflict temporal punishments : in the lat- ter, the sheriff was judge, and the bishop his assistant, to aid his sentences if necessary, by ecclesiastical censures. The great court for civil business was the County court. ^^^^^ couvt, hcM ouce every four weeks (6). Here the sheriff presided ; but the suitors of the court, as they were called, that is, the freemen or landholders of the county, were the judges ; and the sheriff" was to exe- cute the judgment ; assisted, if need were, by the bishop. Once a year, at the Easter tourn or circuit, th6 sheriff and bishop were to hold also a mew of frankpledge ; that is, to see that every person above twelve years of age had taken the oaths of allegiance, and found nine freemen pledges for his peaceable demeanor. other inferior 0'^* of the toum werc derived two inferior courte. criminal courts, the hundred and the leet, for the expeditious and easy distribution of justice, where a hundred or manor lay too remote to be conveniently vis- ited in the course of the tourn. The hundred court was held before some bailiff ; the leet before the lord of the manor's steward (c). Both these, though held in the (o) Here is the account of it in tlie Mirror, c. i., 16, title "de tornis." "Les Yisconts d'anncient ordinances tenent assemblies generals deux fois per I'an en chescun hundred, au touts les fre tenants dedeins le hundred sont obliges devener par I'usage de leur fiefs ; et pur ceo que les visconts a ceo fairie font leur tornes de hundred sont tiels venus appelles tomes des yisconts; ou aux visconts appert d'enqnerer de touts peches personal et de touts circumstances de peches faits en ceux hundreds, et de torts faits au roy et al commonalty del people. Trestouts fleftenants en hundred ne sont mys tenus a yener a ceux tornes Car I'Koy Hen. III. le tiene excusa ascunes persons, et dist que al tornes des visconts ni estoit mester que Archevesqnes, Abbes, Priors, Comites, Barons," etc. (Mirror, c. i., p. 16). In the reign of Henry II., how- ever, it was laid down that the bishops and barons ought to attend these freat county courts, civil and criminal ; which were gradually superseded y the circuits of the king's judges. It was not until the reign of Bichard 'II. that it was enacted that no lord, little or great, should sit upon the bench in the counties, when the king's judges were. (6) This is inaccurate, mde ante. It was the hundred court, or the court of the county in the hundred, which was held monthly. (c) This is incorrect, as will appear from what already has been stated. The court of the hundred was not derived out of any other, nor was it a criminal court only, but civil ; and the reason given for it here is obviously inadequate. The principle was that justice should be as local as possible; CHAP. I.] THEIR PROPER TRIBUNALS. 17£ name of a subject, were the kind's courts. 6ut of the county court was derived an inferior court of civil juris- diction, called the court barm (a). This was held from three weeks to three weeks, and was in every respect like the county court ; only the lord, to whom this fran- chise was granted, or his steward, presided, instead of the sheriff. and the necessity for courts of larger jurisdiction arose, as already explained, from the necessarily limited scope of a local jurisdiction. The court of the leet was not derived fi-om the court of the tourn ; it might be the court of the manor, and a peculiar local jurisdiction. So, as to the court baron, it had nothing to do with the court of the hundred, but was the peculiar court of the manor. This has been already amply explained in the passage from the laws of thp Confessor. Baronea que earias suas habent de hominibus mas, etc., et si placitum de hominibus aliorum baronum oritur si curiis suis assit ad placitum justicia regis, etc. It was the principle of convenience which led our ancestors to msike their tribunal as local as possible, but the more local it was the more the infirmity of a local jurisdiction is made manifest, by restricting it to matters arising within that local jurisdiction, and hence the more manifest the necessity for courts of larger jurisdiction. (a) The author, it will be observed, has confounded the court leet, or court baron, with the hundred, but it will be seen from the following case, how entirely distinct they might be. It is to be borne in mind that the word leet, or assembly, was a general term. And the court leet might either be the hundred court, or it might be the court baron. The leet means as- sembly or meeting, and was a general word applicable either to the hundred court or to the court of a manor. Thus in a case where, in justification of taking the plaintifi''s cattle, the defendant pleaded that place was within a certain hundred and the sheriflF's tourn of the hundred ; and at a leet within the hundred the plaintifi'was prosecuted for a nuisance and fined, the plain- tiff replied that the bishop was seized of the manor, and had a right to have a leet distinct from the leet of the hundred (Loader v. Sammell, Groke, Jac., /551). It was said: — "Le Leete est le plus ancient court in le realme" ( Tear-Book, Hen. VI., 7, 12) ; and tliere can be no doubt that though the name "leet" is Saxon, the court had its origin in the formation of the hun- dred in the Boman times, as the court barons were also incident to the " villa" and the manor. In the course of ages some of the land had changed hands, but the jurisdiction continued over all residents within the manor. Sicut al leete, n'est done per reason le soil, mes resiancy del person ( Year- Book, 7 Edw. II., p. 204). It is said again that la venue a la lete est a,utre que soil ou court que la venue est a real jurisdiction, que de commune droit donne la viewe per reson de la person, so that it was no answer that the . party held his land of another person than the lord of the leet [Ibid., 276 ; 11 Edw. II., fol. 345). It had jurisdiction only over common nuisances (27 assize, 1; 22 Edward IV., 22; 4 Edward IV., 31). A particular private wrong could not be inquired of ai the leet, as an assault (per Martin, J., 4 ; Henry VI., 10). The essence of the leet was prescription, and it was limited by prescription (2 Inst., 72). The notion that the leet was the king^g court was of modem origin. These local courts not being kingjs courts, they could not inquire of trespasses committed with force, for which a fine was due to the king ( Year-Book, Edw. IV., 8, 15). The court leet was rather a criminal court in its nature. The court baron was the civil court of the manor. 180 ' THE SAXONS. [CHAP. I. In all these courts, justice was administered near the homes of suitors with despatch, and without much ex- Thewittenage- pcuse. Bcsidcs thcsc, thcrc was a superior mole. court, kuown by the name of the wittenagemote, which had a concurrent jurisdiction with them (a). This court sat in the king's palace, and used to remove with his person. The judges, it is said, were the great officers of state, together with such lords as were about the court. The business of this court consisted in causes where the revenue was concerned; where any of the lords were charged with a crime ; and in civil causes between them. This was the ordinary employment of the court : besides which, offences of a very heinous and public nature, com- mitted even by persons of inferior rank, were heard here originally; and all causes in the inferior courts might be adjourned hither, on account of their difficulty^ or im- portance. The next object of consideration is the nature ianSp?op- of property among the Saxons : and first, of "^'' landed property. It has been a question, long debated among the learned, whether the lands of the Saxons were subject to the terms of feudal tenure, or whether tenures with all their consequences were intro- duced by "William the Conqueror, It would hardly afford much instruction or amusement at this time, to enter deeply into an inquiry which has been already so unsuc- cessfully discussed, and which has divided so many great names. Lord Coke,^ Selden,^ Nathaniel Bacon,* Sir Roger Owen (b), and Tyrrell,* are of opinion, that tenures were (a) This it should seem is a mistake. The wittenagemote appears to have been rather a council than a court, and though it is probable that, in the earlier times, the distinction between the legislative and judicial functions may not have been well drawn, yet in the time of the Confessor there are traces of the existence of a " Curia Kegis," to which probably the remainder of this paragraph more properly refers or applies. At all events there is mention made of the " Justicia Begis ; " and in the laws of the Conqueror, drawn up about the same time as the laws of the Confessor, this " Justicia Kegis " is distinguished from the viscount or sherifif (Laws of Qmq., 2). The author makes no mention, however, of the rise of a regular royal judicature among the Saxons — a most important era of our legal history, since, as shown in the Introduction, such a judicature is really the parent of regular law. In the county court there was no judicial element. It was a mere popular tribunal. (6) The author here in a note explains that he alludes to a manuscript in • 1 Inst., 776. 3 Hist j)- jgi ' Titles of Honor, 510, 511. * Introd., vol. U., p. 84. CHAP. I.] TENURES OF LAND. 181 common among the Saxons (a). Crag,* Lord Hale,^ Som- ner,' Sir Henry Spelman,^ Dr. Brady, and Sir Martin Wright,* are of opinion that feuds were first brought in and established by the Conqueror. After this difterence of opinion, some later writers have taken a middle course. Blackstone,^ Dalrymple,^ and Sullivan,* endeavor to com- promise the dispute, by admitting an imperfect system of feuds to have subsisted before the Conquest. Perhaps the latter of these opinions may be nearest the truth. A system of policy that had prevailed over all parts of Europe, it is most probable, got footing in Eng- land, inhabited by persons descended from the same com- mon stock, and possessed of the country they then enjoyed under like circumstances with the nations on the continent. But the feudal law, in the time of our Saxon kings, was in no part of Europe brought to the perfection at which it afterwards arrived ; and in this country, separated from the world, and receiving by slow degrees a participation of such improvemehts as were made in jurisprudence on the continent, we are not to look for a complete system of feudal law. At the latter part of this period, feuds on the continent were very little more than in their infant the Harleian Collection, entitled "The Antiquity and Excellency of the Common Law of England," which he says "was written with a view to maintain the popular argument of the times, that our constitution and laws were derived from the Saxons, and that the Conqueror made no alteration thereon," and he dismisses it as of no importance. (a) It is a matter of historical certainty that this was so. It has already been seen that the Bomans had a system of military tenure which was estab- lished in this country, and existed during all the period of the Saxon Con- quest, which lasted for centuries. And it has also been seen that some such system existed in Germany. From traditions, both of our national usages and of the Bomans, it was natural that the Saxons should establish a similar system of military tenures, and they undoubtedly did so. The land was assigned on condition of military service ; the greater thanes held directly of the king, the lesser thanes of them ; and what more was necessary to constitute in substance the feudal system? This was still more clearly the case under the Danes ; and the " heriots," as described in the laws of Canute, were, for earls, king's thanes, and the lesser thanes, entirely military (Anglo- Saxon Laws, p. 415). The heriot was a species of relief, and involved in it the rudiments of the burdens of the feudal system. No doubt that system was, under the Saxons, in a rude and imperfect stage; and was only devel- oped in the time of the Normans. So, also, there was forfeiture; for if a man who had land of his own forsook his lord, he forfeited it — another evi- dence of feuds or fle& {Anglo-Saxon Lawi, p. 456), • Jus. Feud., lib. 1, tit. 7. * Glos. Feudum. ' Feudal Prop., 8. ' Hist. Com. Law, 107. « Ten., 57. » Lecture 28. » Gavel., 100, « Vol. ii., p. 48. 16 182 THE SAXONS. [CHAP. I.. state ; they were seldom granted longer than for the life of the grantee.* "Without engaging in a controversy whose extent and difficulty have eluded the greatest learning and sagacity, it will be more satisfactory to notice such few facts as we really know respecting the landed property of the Saxons, We know that their lands were liable to the trinoda neces- sitas ; one of which was a military service on foot ; another, arcis cwistmctio; and another, pontis eonstractio. They were in general hereditary (a) ; and they were partible equally among all the sons (6). They were alienable at the pleasure of the owner ; and were divisible by will. They did not escheat for felony (c) ; and the landlord had a right to seize the best beast or armor of his dead tenant as a heriot (d). This is the principal outline of the terms (o) The bocland seems to have been bo {vide cmte), though the deed of grant might define and limit the course of descent, and hence the law of Alfred, that a man who had bocland should not alienate it from his famify, if the deed provided that it should not be so alienated. (6) According to the British law — that is, after the Boman occupation -t- the land was partible among all the sons, as is recited in the Statutilm Wallise, 12 Ed. I., qiiod hcereditas parlihus est inter hceredes maseulos. Among the Saxons, the laws of Canute, sited post, show that the estate was divided among all the ehUdfen; and Lord Hale thinks that, until the Conquest, the descent was to all the sons, and probably to all the daughters, for which he cites the laws of the Confessor (Ang.'Sax. Laws and IniA.) ; and Selden in his notes upon Eadmerus, says, " Si quis intestatur obierit, liberi ejus hsere- ditaten sequaliter divident." After the Conquest, the law by degrees changed, except in Kent, where, according to the old British, or rather Koman-British law called the custom of gavelkind, all the land is still parti- ble among all the sons. In the reign of Henry I., as Hale says, " the whole land did not descend to the eldest son, but began to look a little that way," and he cites the Leges Henriei Primi, c. 70, Priraum patris feudum primo- genitus, filius habet ; upon which he observes that the eldest son, although he had jus primogeniturse, the principal fee (or estate) of his father's land, yet he had not all the land. In the reign of Henry II., as appears from Glanville (lib. 7), in ordinary freehold lands called " socage," (i. e., land not held on military tenure) the jus commune, or common law^ gave all the land to the eldest son, unless there was an ancient custom to the contrary, " unless the land was antiquitus dimswm. Si ne vero non fuerit antiquitus divisum, tunc primogenitus totam haereditatem obtinebit." (e) This is a mistake, for in the law of Athelstane, it is laid down that if a thief was taken, he should forfeit all he hadj though part was to be given up to his family, and the rest retained by the king [Ang.-Soac. Laws, 229) ; and a man who had bocland forfeited It even for outlawry (Ibid., Laws of Camiie, 13 ; Henry I., 13), and if he forsook his lord [IMd., 456) ; so that it would not be probable that there was not forfeiture for felony even if there were nothing to show that there was. Lord Coke maintained that there was. (d) Iij the laws of Canute, the reliefs of earls and thanes, whether king's ' Lib. Feud. L, tit. 1. CHAP. I.] DEEDS AND CHARTERS. 183 on which landed property was possessed among the Sax- ons. It should seem that a, legal transfer might, be made of lands by certain ceremonies, without any char- Method of ter or writing (a). Ingulphus says, conferebaur '^^"^y^^'^^- thanes or medial thanea, are described, and are entirely military in their nature, so much so, that the law is copied into the collection of laws of Henry I. They consisted of horses and their military accoutrements. There is strong evidence that the foundation of the feudal system already existed, that is, military service for the defence of the realm, and there is also the appearance of what Guizot calls the hierarchical system, which was characteristic of it. (a) In the Anglo-Saxon Chronicle, A. d. 657, mention is made of a deed of grant of lands by Wulfhere, king of the East Saxons, to the monastery of Medeshewsted (Peterborough), and it is stated that the king "subscribed it with his fingers on the cross," evidently being unable to write, and being what is called a " marksman," i. e., attesting an instrument only by putting his finger on his mark. The grant was thus, as the Chronicle says, executed in the presence of witnesses, who subscribed it with their fingers on the cross, and assented to it with their fingers," and this was done in the presence of the nobles and bishops, and several ealdormen. Three centuries after- wards, the deed was found concealed in the walls of the monastery (which had been destroyed by the Banes), and it was solemnly confirmed by Edgar in the presence of prelates, nobles, and ealdormen, and the franchises of sack and sock, toll and theam, and infangenthef, were also granted (Sax. Chronicle, A.D. 963). It is also mentioned that the abbot of this monastery let to an ealdorman ten copy-lands, with all that lay thereto, for £50, and each year a day's entertainment, or 30 s. in money, and that, after his death, it should re- turn to the monastery. The witnesses to this are mentioned (a. d. 777). It is added, " A copy of this grant was set forth in presence of the king, in the monastery, in the year 745." And as there is no doubt that Glastonbury monastery had large grants from early Saxon kings, and their charters have every sign of genuineness, there appears no reason to question their authenticity. As laws were written in the seventh century, deeds might well be, and there are laws of Ethelbert who reigned in the middle of that century (Angh-Saxon Laws and Inslitvies, vol. i.). It appears, however, that these kings could not write, and probably the nobles could not, as all but the prel- ates signed, or rather attested, by means of marks in the form of the sign of the cross ; so that they could only be cognizant of the contents of the deeds as they were read to them. And no doubt they were, when they became Christian, greatly under the influence of ecclesiastics, though, as Guizot points out, that influence was exercised in favor of civilization. In the same Chronicle mention is made of a ehartier of immunities granted by Ethelwulf, the father of Alfred, A. D. 846. The same grant is mentioned by Ingulphus and by ^sser, though in the year 855. The charter contained a passage which has given rise to much controversy as to tithes. In William of Malmesbury, mention is made as early as A. d. 721 of a royal grant or charter by Ina, a Saxon king (the first of those who framed laws after becoming Christian), to the monastery of Glastonbury. It was thus : " I do grant one of those places which I possess by paternal inheri- tance, and hold in my demesne, for the maintenance of the monastic institu- tion (so many hides at such a place, and so many hides at another), and I grant that all places and possessions of the monastery be free of rent, and undisturbed ftom all royal taxes and works which are wont to be appointed ; 184 THE SAXONS. [CHAP. I. tur prcedia nudo verba, absque scripto vel chartd, tantum eum domini gladio, vel gakd, vel coniu, vel craiere, et plurima tene- menta cum strigili, cum arcu, et nonnuUa cum sagittd} Thus Edward the Confessor granted to the monks of St. Ed- mund, in Suffolk, the manor of Brok per culteUum;^ and holding by the horn, by the sword, by the arrow, and the like, were common titles of tenure. However, deeds or charters were in use (a). These were called gewrite, i. e., writings ; and the particular deed by which a free estate might be conveyed was usually called landboc, Wbellus de terrd, a donation or grant of land.' The land so passed was, as has been already observed, called bocUmd; and the < person who so conveyed to another was said to gebocian him of it. An Anglo-Saxon charter of land has also been called teUigraphumr the etymology of which mongrel term seems to imply that the land was therein described by its situation and bounds. But this appellation was probably adopted after the Conquest, as a translation. of the word landboc. The like may be said of the term cyrographum, another name by which Anglo-Saxon charters were known: but those denoted by this name were of a peculiar kind ; such as had the word cyrographum written in capital letters that is to say, expeditions, and the building of forts or bridges, and cities, as is found to be empowered and granted by my predecessors in the ancient charters of the same church : " so that, according to this recital, there were still earlier charters in the seventh century ; but these might, if they stood alone, be deemed of doubtful authority, as William was not a contemporary. Some twenty years later, however, another charter or grant by Ina's successor is set out: "I declare that all the gifts of former kings in country houses (villse), and in villages, and lands, and farms, and mansions, according to the confirmations made, and confirmed by autographs and the sign of the cross, shall remain inviolate .'.' (o) It is jjlain, however, that deeds were in use among the Saxons, although, ■as even their kings could not read or write, they were executed by seahng instead of signing. The very word bocland demonstrates that they had deeds. There is a law of Alfred restraining alienation of land from the kindred where it had been acquired, by a donation in writing restraining such alienation. " De eo qui terram hsereditariam habet quam ei parentes Bui demiserunt, ponimus ne illam extra cognationem suum mittere possit, si scriplum intersit testamenti, et testis quid eorum prohibirent qui hano im- primis adguisierunt, et ipsorum qui dederunt ei ne hoc possit, et hoc in regis et episcopi testimonia recitetur, coram parentela sui" (Laws of Alfred, c. 41). It would not appear, however, that deeds of alienatiop were in common use. In the Saxon version of the above, the words rendered terram haereditariam are " bocland." It is certain that deeds were used for donations to public bodies, such as monasteries. 1 Hist. Croy. 901, Franc. 1601. • Mad. Form., 283. ' Mad. Form. Diss., pa. 2. * From tellus and ypn^u. CHAP. I.]. DEEDS AND CHARTERS. 185 either at the top or bottom of the charter, and cut through or divided by a knife.' Before Leg. a1£, 2. CHAP. I.] CRIMINAL TRIAL — ORDEAL. 199 and was then to be delivered to his relations unhurt and safe.* Notwithstanding this regard for churches, there seems to have been no immunity granted to the persons of churchmen (a). If a clerk committed homicide, he was to be degraded from his orders, and was, moreover, to make his compensation, or suffer punishment, in the same manner as any other person {bf. The bringing of criminals to justice was very much facilitated by the police established in the reign of Al- fred (c). The objects which next present themselves are the proceeding, the mode of trial, and the proof, all which were very remarkable parts of the Anglo-Saxon jurispru- dence {d). The prosecutor, or accuser, as he was called, So) Sed mde ante, b) These are mistaken references, and the laws referred to have nothing to do with the period ; but there are two of Canute's laws directly to an effect the contrary of what is stated in the text. " If a servant of the altar be a homicide or work iniquity enormously, let him forfeit both degree and order, and go walk as the Pope shall prescribe to him and do penance." And if he umdd_ clear himself i. e., if he elected to do so, then he was to do it in the way pointed out for priests by a former law {Ethdred, c. ix., 19) ; but if he did not do so, or practise the penance prescribed, then he was to be an outlaw [CamiAi, o. 41). In no case was he to be tried before the lay courts. So again, " If a man in holy orders do a crime worthy of death, let him be seized and held to the bishop's doom " {Canute, 43). (c) The system of frankpledge, vide ante, [d] The author does not give any intelligible account of it, and cites no au- thority about it; and it will be manifest that he had not given much atten- tion to it, and had only attended to the two barbarous and primitive modes^ of procedure by compurgation and by ordeal. No authority is cited for the next proposition, that a mere accusation was sufficient to put the accused upon his defence ; and it is quite contrary to the whole tenor of the later Saxon laws and the cases recorded in the Mirror of Jitalice, As early as the reign of Edgar and Ethelred mention is made of presentments by twelve sworn freemen jurors, who answered to our modei-n jurors ; and Alfred is recorded to have hanged a judge who sentenced a man to be hanged without an indictment or presentment on oath by such jurors or sworn indictors. The laws of Ethelred begin, " that every freeman have a ' borh,' or borough^ that they may present him to every justice if he be accused, but if he be in- famous let him go to the ordeal," so that the ordeal was only for those who were not worthy of credit, and then only upon sworn presentment. If the man could obtain compurgation he would avoid the ordeal, which was only the ultimate resource, failing compurgation, upon a charge made by the neighbors upon oath (Ang.-Sax. Laws, v. i., 282). And again, the laws of Ethelred provided that in the hundred twelve thanes or freeholders were to be sworn that they would accuse no innocent man, nor conceal any guilty one (Ibid., 295), which is precisely the present oath of the grand jurors. In the laws of Ethelred there is this remarkable provision set down, "and where thanes (or freeholders) are of one voice ; if they disagree, let that stand which eight of them say " {Ibid., 299). So, from the Mirror of Justice, ' Leg. Alf., 5. ' Leg. Can., 36, 38. 200 THE SAXONS. [chap. I. made his charge; which, it should seem, was sufficient alone to put the person accused on his defence. The de- it appears that indictments were by the oaths of jurors (c. ii., s. 15), and that it was only if there were no witness the trial by ordeal was resorted to, and it was even then discredited and discouraged as a relic of heathenism (c. iii., s. 23). And unless the ordeal was resorted to, the proof lay upon the prosecutor. The subject of the criminal procedure of the Saxons, with reference to the mode of trial, and the recourse to compurgation, ordeal, or jurors, is one of extreme difficulty and obscurity, and as to which, it will be observed, the author gives little, if any, assistance. After much study, the editor ventures to propound this view, that these proceedings arose, one after the other, by gradual growth; as the result of practical experience ; and that they arose in this order, first, simple denial on oath, then compurgation, then ordeal, and trial by jury. If a thief were taken in the act, the case was quite clear (Ina, 28), and no trial was needed (12). If the accused was not taken in the act, then at first he was required to clear himself by his own oath {Ina, 17, 46, 57) — that is, if oath-worthy (54). But it would be neces- sary to judge whether the man was credible, and hence some one else of known credit might join with him, and even then it would be necessary that some sort of tribunal should decide whether the man had cleared himself; and hence it was said, " if he be found guilty," then there should be a pen- alty (Ina, 54). "Found guilty" could only mean found guilty by the hun- dred court, and hence tliere was a trial, and compurgation was only a species of evidence or mode of proceeding at the trial. In the treaty between Al- fred and Guthrum the practice of compurgation is brought out clearly ; and the accused, to clear himself, had to get eleven freeholders to join with him in swearing (Aiig.-Sax. Laws, 155). It is remarkable that no mention is made of ordeal, and, by the Mirror of Justice, we find that in Alfred's time there was trial by jury in criminal cases. It is in the laws of a later reign, Edward's, the ordeal is first mentioned ; and this is most remarkable, and really looks as if there had been a recourse to the ordeal to solve cases of doubt too difficult for the rude minds of that age; it was provided that he should go to the oath, and if he failed in that, then to the ordeal (Ibid.). All this was at the hundred court, and it is plain that these were sworn men to determine the case ; and that " oaths and ordeal" were used as means to as- sist them in determining in cases where the evidence left them in doubt, or where they had no knowledge of the matter one way or the other. For jurors in those early days were witnesses, and men had small capacity of weighing evidence. Thus, therefore, the whole of these processes were blended, and if the jurors did not know enough of the matter to enable them to judge, and the compurgation or oaths failed to satisfy them, then there was recourse to the ordeal, which was thus only used as the resort when all other means of getting at the truth had failed. Mention is made of the ordeal in the laws of the Confessor (e. g., Ang.-Sax. Laws, v. i., p. 445). And after the Conquest, trial by battle prevailed, which was not less barbarous. But as jurors grew more intelligent, and would attend to evidence, those barbarous usages died out hjr degrees. That the hundred court was the criminal tribunal, and that evidence was used when available, appears from the later laws of Edgar. For there it is said, that if a thief denied the doom of the hundred, and it be afterwards proved against him, he should pay a penalty {Edgar, 3). But at the end of those laws the ordeal is mentioned. Subsequent laws of Edgar provide for sworn witnesses of every transaction, and that if a criminal charge arose out of it, they might determine the matter by their testimony or verdict to the hundred ; for if tl»e accused said ■ that he had bought the things in the presence of the witnesses, and they so CHAP. I.] CRIMIKAL TRIAL — ORDEAL. 201 fence and answer to this charge was this : If it was a mat- ter not of great notoriety, but such as might admit of some doubt, the party ■purged himself by his oath, and the oaths of certain persons (called thence compurgators) vouch- ing for his credit, and declaring the belief they had that he spoke truth. If the compurgators agreed in a favora- ble declaration, this was held a complete acquittal from the accusation. But if the party had been before accused of larceny or perjury, or had any otherwise been rendered infamous, and was thought not worthy of credit, he was driven to make out his innocence by an appeal to heaven in the trial by ordeal. This was of several kinds. The two principal were by water and iron ; by water hot or cold and by hot iron ; the iron was to be of one, two, or three pounds weight, and was, therefore called simple, double, or triple ordeal. The ordeal was considered as a religious ceremony. The person, the water, and the iron were accordingly prepared under the direction of the priest, by exorcisms and other formalities, and the whole conducted with great solem- nity. For three days before the trial the culprit was ' to attend the priest, to be constant at mass, to make his offering, and in the meantime to sustain himself on noth- ing but bread, salt, water, and onions. On the day of declared to the hundred, he would he ahsolved ; hut if they declare that it was not so, he would be convicted (Edgar, ii. 10). What was this but in effect trial by jury, seeing that the first jurors were witnesses ? Thus came the law of Ethelred, that, at the hundred court, twelve freeholders were to be sworn to present no one untruly ; and after this, men not credible are to go to the ordeal, and if the purgation failed, then by the compurgation (Ethelred I., c. iii., s. 5). And afterwards, ordeal and oaths are mentioned together as modes of trial (Ethelred, v. 18). So, in the laws of Canute (c. 22), mention is made of men who never failed in oath or ordeal (Ang.-Sax. Laws, i., p. 389). And as to men who had failed, and were not credible, the words of the law are, "we have ordained concerning those men who were perjurers, if that were made evident, or an oath failed to them, or were not proved, that they should afterwards not be oath-worthy, but worthy of the ordeal" (Edward, 3). So, in the laws of a later reign, "And we have or- dained, respecting the single ordeal, for those men who have been often ac- cused, and have been found guilty, and they knew not who shall take them in pledge," etc. (Atheist., 7). And then the law of ordeal is carefully and minutely laid down. This is very remarkable, and almost inexplicable; for it is after Alfred's time (when there were juries), and it looks as if the ordeal had been re-established after trial by jury ; and as though the barbarian mind, unable to solve cases of doubtful character, took refuge in the ordeal, and thus revived the practice of their ignorant heathen ancestors. 1 Leg. Atheist., 23. 202 THE SAXONS. [chap, I, trial he was to take the sacrament and swear that he was not guilty of, or privy to, the crime imputed to him. The accuser and the accused were to come to the place of trial attended with not more than twelve persons each, proba- bly to prevent any violence or interposition ; and a pro- duction of more than that number by the accused would have amounted to a conviction. The accuser was then to renew his charge upon oath, and the accused to pro- ceed in making his purgation. If it was by hot water, he was to put his hand into it, or his whole arm, accord- ing to the degree of the offence ; if it was by cold water his thumbs were tied to his toes, and in this posture he was thrown into it. If he escaped unhurt. by the boiling water, which might easily be contrived by the manage- ment of the priests, or if he sunk in the cold water, which would certainly happen, he was declared innocent. If he was hurt by the boiling water, or swum in the cold, he was considered as guilty.* If the trial was to be by the hot iron, his hand was first sprinkled with holy water, then, taking the iron in his hand, he walked nine feet. The method of taking his steps was particularly and curiously appointed. At the end of the stated distance he threw down the iron and hastened to the altar ; then his hand was bound up for three days, at the end of which time it was to be opened; and from the appearance of any hurt, or not, he was der Glared in the former case guilty, and in the latter ac- quitted. Another method of applying this trial by hot iron, was by placing red-hot ploughshares at certain dis- tances and requiring the delinquent to walk over them ; which, if he performed unhurt, was considered as a proof of his innocence. These trials by water and fire were called judicia Dei (a). •(o) Or, as it ia called in the Mirror, the miracle of God : that is, the priest ■was to do something which it were impossible to do without a miracle from God ; " but Christianity suffered not that they be by such wicked arts cleared, if one may_ otherwise avoid it" (o. 7, s. 24). Nevertheless, the ordeal ia mentioned in the laws of the Confessor ; and the only substitute the Nor- mans afforded for the stupid ordeal, was the brutal battle. The persaasions of the clergy, Lord Hale says, were used to the utmost to abolish it, and he thinks it died out in the reign of John ; but so tenacious are an ignorant peo- ple of their barbarous usages, that it is actually mentioned at the end of the Mirror as "an abuse," "that purgations are not allowed by the miracle of Go.d, where other proof faileth" (o. 5, s. 1). That was written in the time 1 Leg. Atheist., 23. CHAP. I.] TRIALS IN CIVIL CASES. 203 Another method of trial was by the offa eocecrata, or Corsned, -which was that by which the clergy were used to purge themselves, and which they chose, probably, as the least likely to put the party to any peril. A morsel of bread was placed on the altar with great ceremony and preparation, which the person to be tried was to eat ; if it stuck in his throat, this was to be considered as a token of his guilt. Thus, in this instance and that of the cold water, a iniracle was supposed to be wrought to prove the ^uilt of the person ; in those of the hot water and hot iron the like divine interposition was expected to demon- strate his innocence. Another ordeal was that of the cross. This was performed by placing two sticks, one with a cross carved upon it and one without, and making the culprit choose one of them blindfolded. If he hit upon that which had the cross upon it, this piece of good for- tune was looked upon as an evidence of his innocence. These seem to have been the methods of investigating truth in criminal inquiries. _ It may be observed that the Anglo-Saxons made a dis- tinction between manifest or open offences, and such as were not so public; and the degree of punishment was proportioned accordingly (a). It has been observed that this implied some doubt entertained by themselves of their methods of proof '(«); but, it may be remembered, that the Romans made the like distinction and inflicted only half the punishment on furtum non manifestum, which I they did on that which was manifestum. J Next, as to civil causes, and the manner in which they were tried. It seems that causes in the county Tiiaimoivu and other courts were heard and determined °""°- by an indefinite number of persons called sectatores, or suit- ors of court ; and there is no great reason to believe that they had any juries of twelve men, which was an inven- tion of a much later date (6). The sectatores used to give of Edward I. As to the Norman substitute for the ordeal, the duel or battle, it was hardly obsolete until the time of Elizabeth ; at all events, in civil cases ; but in criminal cases, no doubt much earlier. (a) There seems no sufficient authority for this. None is cited by the author. (6) No authority is cited for this; and it is manifest, from the tenor of the later Saxon laws, and from the traces of the Saxon law to be found in the Mirror of Justice, that it is correct only as to earlier and more primitive 1 Littl. Hen. II., vol. v., 292. 204 THE SAXONS. [CHAP. I. their judgment or verdict, both upon the matter of fact and of law (a). It may be a doubt whether they ever acted as an inquest to make inquiry of crimes and delin- quents, as juries did after the Conquest.' In a law of King Ethelred (6), there is a provision that there should be twelve thanes, or liheri homines of superior consideration and parts, whose concurrence was made necessary. It should seem, however, these were rather assessors to the judge of the court than a part of the suitors, or indeed anything like a jury.^ By all the monuments that remain of these limes, it appears that the number of sectatores was various, according to the custom of different places, and perhaps in most instances depended on chance and conven- ience, but in no case is there the least reason to believe that it was confined to twelve ' (c). These sectatores dis- times. For as early as the laws of Edgar, we find provision is made for the securing of twelve men in every hundred as witnesses of transactions within the hundred ; and these men were afterwards, if any question arose, either in a civil or criminal matter, to testify thereof to the hundred (Laws of Edgar, c. 3, s. 56). These were in truth juries; for the juries were originally wit- nesses, determining of their own knowledge ; and the object of these laws was to provide that they should have knowledge of all matters within the hundred. Thus it came to be a fixed rule that some of the jurors must come from the hundred, who were called hundredors ; and this, which was the case until modern times, shows that the jury arose out of the hundred. 1o) Sed vide supra. J This law was, that a mote or court be held in every hundred, and that the twelve senior thanes or freeholders should go out — i. e., be selected out of the hundred, and the shefifi" with them, and that they should swear that theywould accuse no innocent man, nor conceal any guilty one, the very oath which is now taken by a grand jury ; and there can be no question that this was a jury ; for it would be difficult to define a jury in any other way than as a selected body of men sworn to determine judicially. In the times of Edgar, it had already been enacted, that in every hundred there should be twelve men sworn as witnesses (Edgar, 6). And in the Mirror of Justice — which, there is no doubt, enibodies the Dom-boc of Alfred, and certainly records many proceedings which had taken place in his time — jurors and juries are repeatedly mentioned in criminal cases. As regards civil suits, no doubt the suitor was judged in the county court, a turbulent and tumultuous body, un- Buited for the administration of justices; but the necessity for having a selected number of them sworn would soon be recognized; and that, in reality, would be a jury. (c) On the contrary, as will be seen from the Anglo-Saxon law, and from the Mirror of Justice, there is no mention made in the latter of these laws of any jiidicial function of the hundred court, either in civil or criminal cases, without the number twelve being alluded to ; and in the instance just qupted, the author omits the words which show that the twelve men were jurors. It is evident, indeed, from his citation of Hickes, instead of the laws, that he took hLs authority at sejond-hand, and had not himself much studied the 1 Leg. Ethel., ca. 4. » Hickes' Thes. Diss. Ep., 34. » Ibid., 33. CHAP. I.] TRIALS IN CIVIL CASES. 205 charged their office, it is thought, without any other ob- ligation for a true performance of it than their honor, for it does not appear that they were sworn to make a declara- tion of the truth.' _ It is not improbable that the thanes in the counties, the citizens in boroughs, and those who were the sectatores in other courts, might determine all causes in like manner as peers of the realm, at this day, deter- mine in criminal cases, without an oath. There is at least a perfect silence as to this subject in the remains of antiquity, and the most we can conjecture is that they might perhaps solemnly engage to speak the truth in all matters which should come before them, without renew- ing it in every particular cause.'' It is not unsuitable with what has been already said of the modes of proof used by these people to suppose that they admitted the oath of the defendant in civil causes, when that oath was supported by compurgators, who swore they believed what he said to be true. The laws requir- ing witnesses to all contracts supplied evidence almost in all inquiries about him ; but where that was not the case, it seemed consistent enough with the established order of living in those times to allow credit to a man's oath, when supported by the concurring testimony of others to his credit (a). The small districts into which the people were Saxon laws. He is equally incorrect, it will be seen, in the next statement, as to the suitors not being sworn ; whereas, as will have been seen, mention is repeatedly made of those of the suitors being sworn who were really to determine, as jurors or witnesses. No doubt these decisions might be ratified by the voice of the whole body of the hundred, and in the earlier state of the Saxons this general voice might have been the only mode of decision. But it is manifest, from the later laws, that the danger and mischief of this had been made apparent, and that, therefore, ewom men were delegated really to determine. (a) No doubt ; and the practice of compurgation was the origin of " wager of law," in which the defender was examined on oath, with others ; and, as Lord Cote says, " this countervailed a jury." But the author failed to see how what he said applied equally to jurors, who differed from compurgators simply in this, that the latter were called by the defendant to swear that they believed him innocent, and the former by the court, to swear whether they believed him guilty or innocent — both swearing equally upon their own knowledge. For this reason the Saxon laws, it has been seen, made pro- vision that all transactions should be before some sworn men of the hundred, who should afterwards decide disputes arising out of the transactions they witnessed — i. e., as jurors; for jurors were witnesses. Hence it was that, as the jury arose out of the hundred, and were supposed to be witnesses, and determine upon their own knowledge, it was an inflexible rule or custom, » Hickes' Thes. Diss. Ep., 42. ' Ibid., 42. 18 206 THE SAXONS. [OHAP. I. divided, and the consequent relation which by law they bore to each other, furnished abundant opportunities for a man's character to be known, and declarations of his neighbors concerning his credibility might be received with no small degree of confidence. It cannot be dissembled that some learned men have been of opinion, that the trial by jury was in use among the Saxons ; and this point, like some others, had been maintained with great pertinaciousness by those who have labored to prove the antiquity of our juridical con- stitution. This opinion may, probably, have been founded on the similitude between sectatores and jurors, an appearance which, on a superficial view, may indeed deceive (a). However, it may be laid down with safety that the triail by jury did not at this time exist ; and if the reader will suspend his judgment till he comes to those times when the trial by jury was really established, he will then see distinctly the essential difference between sectatores, com- purgatores, anAjuratores, and will agree with us in declaring that the frequent mention of sectatores is no proof oi juries, properly so called, being known to our Saxon ancestors. Thus have we attempted to give a sketch of that sys- tem of jurisprudence which subsisted among the Saxons. The materials which furnish any knowledge of it are so few and scanty, that it is with the utmost difficulty any- thing consistent can be collected from them (b). This until abolished by statute, that there must be some hundredors upon a jury. And to this day, in matters of a public nature, juries may decide of their own knowledge. (a) As already ^hown, the jurors were sworn suitors, and the suitors who really decided cases were sworn, in the later Saxon times. The author bad misunderstood the provisious in the laws as to the witnesses, forgetting that, in the infancy of trial by jury, the jurors were witnesses, and determined upon their own knowledge ; and he had failed also to see how one institution grew out of another in the course of experience. Thus, the original course, no doubt, was to put the defendant to purge himself by his own oath ; then he was called upon to add the oaths of others ; and if he failed to find a suf- ficient number to swear in his defence, then a certain number were sworn to ■determine the case. Both compurgators and jurors were simply suitors sworn ; and there is no authority in the Sajcon laws for saying that the hun- dred, after these laws were made, decided cases without some mode of in- quiry by sworn men, either as compurgators or jurors. The enly difference between them was, that the compurgators swore to their belief in the man's innocence, and the jurors swore to their belief that he was guilty or innocent, as the case might be — both equally swearing from knowledge. (6) Umfortunately, our author was not at all aware of the materials which CHAP. I.] TRIALS IN CIVIL CASES. 207 must give rise to a variety of opinions, according as per- sons are biased by prejudices and different turns of think- ing. Perhaps, after all, the clearest opinion that can be formed respecting such distant and obscure times, is not worth defending with much obstinacy. Of this the reader will be able to judge when, in the course of this history, he finds institutions either so abundantly superinduced upon the original groundwork, or so entirely substituted in the place of it, that very lit- tle remains of the Saxon jurisprudence can be traced even in the earliest times of our known law, after the Con- quest {a). The parts which alone survived that revolu- tion seem to have been the methods of trial, some notions of criminal law, and the scheme of police. The others were gradually superseded, and at length are no longer known. It remains now to inquire what steps were taken by exiBted, nor was he sufficiently acquainted with those of which he was aware. Instances have already been adduced which show that he had derived his knowledge of the Saxon laws at second-hand, and had not studied them him- self; and he wholly ignores the Mirror of Justice, which, as has been shown, contains a great deal of matter which obviously belongs to the Saxon age, and affords much information as to the Saxon system. No doubt it was rude and imperfect, and in its best time only a striving after better things ; but in these attempts lie much of the interest of legal history, and in their criminal system the Saxons had made great advances. Our author had de- rived a very imperfect idea of the Saxon system, because he had derived it entirely from their written laws, and had missed the valuable evidence we have of their unwritten laws. It is in these, the unwritten laws of a nation, in its earlier stages of advance, that the alterations suggested by practical experience are more usually made, and therefore the course of progressive improvement is more distinctly marked. The author had failed to realize this progressive improvement, and his idea of the Saxon system is therefore imperfect. (a) This is very true. It may indeed be said that no institutions pecu- liarly Saxon have survived ; for although trial by jury, especially in crim- inal cases, virtually came to us through the Saxons, it would be an error to suppose that the principle of it was exclusively Saxon ; and in substance it was known to the Bomans, though no doubt it was not fully developed, until its union, so to speak, with the free popular element in the Saxon institution of the hundred court, out of which it really arose. And the whole of our criminal system of procedure, with its presentment by grand jurors, is dis- tinctively Saxon ; but this is all. The barbarous practice of the ordeal did not survive the reign of John. The practice of compurgators soon became obsolete in criminal cases, and the practice of wager of law in civil cases, which arose out of it, had been obsolete for ages long before its abolition, although its legal existence was an inconvenience. The system of "frank- pledge" also became obsolete. Nothing except the criminal system of the Saxons survived civilization. 208 THE SAXONS. [CHAP. I. the Anglo-Saxons in collecting and improving their laws (a), and what monuments they left of their legal polity. {a) The author rightly speaks of these collections as confined to the laws of the Saxons. This may be the proper place in which to give some general notice of those written collection of Saxon laws to which the author here alludes. It is to be especially observed that these were by no means com- plete codes or bodies of law, containing all the laws existing in the country. On the contrary, it can be shown from the laws themselves — and this is the first and most important point to be observed in them — that they did not contain all the law, nor the most important part of it, the law of the most iniportant institutions in the country. For, on the one hand, throughout these laws, there are none establishing any institutions at all; as, for in- stance, the municipal or the manorial, nor the divisions and organizations of the country, as counties and hundreds ; and, on the other hand, there are constant allusions to some of those divisions and institutions as already ex- isting. For instance, the earliest of these laws make mention of the ecclesi- astical organizations and endowments, for they make mention of the property of the church, and of bishops, and of priests (Ethdbert, 1), and church scot (Ina, 61), and tithes [Edgar and EthelbeH). And so of the civil organizations . — one of the earliest of their laws makes mention of counties, while not men- tioning their formation. "If any one demand justice before a shire-man or other judge," — which last, no doubt, means hundredor (Ina, 8, 36). In the same laws mention is made of tens, which implies hundreds (Ina, 54). This was long before Alfred, who by a popular error is supposed to have estab- lished counties, hundreds, and tithings. So, mention is made of the manorial institution, — that is, of serfs or villeins, which implies its existence. "If any one go from his lord without leave, and steal into another shire, and he be discovered, let him go back" (Ina, 22, 39). This is a rough translation of an imperial edict as to the coloni; it comes between two clauses as to ceorls (churls) or husbandmen. In the Latin version, ceorl is translated " coloni," added to which there is another clause speaking of ceorls having meadow in common. All which points plainly to the state of villenage and the existence of manors. So mention is made of reeves, sheriffs, shire-reeves (Laws of Ina). Mention is next made of " borhs" (burghs), and pledges (Ina, 1). All this was before the time of Alfred, who is supposed to have been such a remarkable legislator, but whose laws, on the contrary, are very in- ferior to those of Ina. There is little at all new, and nothing which can be called original ; and they commence indeed by a preface in which the king states that he had gathered from the laws of Ina and Ethelbert those which he thought best, and had added little of his own (Laws of Alfred; Anglo- Saxon Lawf, p. 59). These laws established nothing, unless it were the right of sanctuary in a church (c. 5). They make mention of royal manors or farms (c. 8). They likewise mention the folcmote or court of the county or hundred (c. 22). They contain an enactment as to bocland (already quoted), implying that the distinction of such land was already known and estab- lished (c. 41) ; and there is no previous law about it. It may here be men- tioned that these "laws" were the Saxon, called "dooms," and that thus the laws of Alfred are called "Alfred's dooms." So Edward's " dooms " or laws ; they allude to bocland and folcland (the first time the latter is men- tioned), and to serfs and sheriffs, and requires that each sheriff have a court once a month. So of the "dooms" or laws of Athelstane; the first thing new is the ordinance for the payment of tithes (I., 1). The next is that if a lord denied ju.stice, the king might be appealed to (II., 3). So allusions are made to trial by ordeal, as already established (JEdw., 3 ; Ath. I., 4r-6). And there are specific regulations about it. So as to the county court and CHAP. I.] THEIR WRITTEN LAWS. 209 We are told that tlie great and good King Alfred, besides the regulations he made for the better order and government of his people, seeing how various Ajfted-aDom- the local customs of the kingdom were, made *"'°' a collection of them, and out of them composed his Dom- boc, or Liber Jvdidalis (a). It seems this was intended as hundred court, which had been mentioned as existing in previous laws, it is provided that the county court shall be held twice a year, and the hundred court once a month (Edgar, 5). So, in the laws of Canute, there is a requisi- tion that every man be brought into a hundred and into a tithing (c. 20). It would be difficult to find anything established or constituted in the Saxon laws (except, indeed, the payment of tithes and church scot, and " Rome- fee," or the "hearth-penny" to St. Peter (Laws of Ethelred, Edgar, and Canute). With these exceptions, all the provisions in these laws are matter of mere regulation of existing institutions, and for the most part relate either to more barbarous usages, long since obsolete, or, on the other hand, to pious duties and religions obligations. It is obvious, then, that these successive collections were not complete codes of law, nor even of the Saxon law — that is, of the whole of the law they had — nor even collections of their laws, in the sense of all their laws, but they were only collections of their written laws ; that is to say, of the new laws they made to alter, or regulate, or enforce laws already existing, or institutions already established. Each king put forth a kind of edict, or collection of edicts, on such matters as appeared to require to be altered or enforced, and thus they afford only a kind of indirect and incidental evi- dence of the system of law then existing, which i« not embodied or codified in these laws, "but, on the contrary, is only to be collected therefrom by close examination and careful induction. (a) It did not occur to the author that this might be the Dooms or Laws of Alfred above mentioned ; and which, it will be seen, were only a compi- lation from a former collection of general laws better than his own. The name of Alfred has become associated with the revival of law and litera- ture, but it is manifest that his merit must have been more in the adminis- tration of law than in legislation ; and it is remarkable that, although the chroniclers speak of him in terms of high eulogy, they do not mention his laws, or those which pass under his name as the Anglo-Saxon Laws, nor the " Dom-boc," or Liber Judicialis, which is spoken of by the author in this passage. And the only mention made of his legislation is mistaken, and has given rise to the erroneous notion that Alfred divided the country into hundreds and tithings, an error into which the author had fallen. The notion is derived from a passage in William of Malmesbury, but it was per- haps misunderstood, and, at all events, it was corrected by Lord Coke. The chronicler says most truly that Alfred perceived that " literature had gone to decay all over the island, because every one was occupied in the defence of his life, and so had no time to devote to books," a sentence which ^eaks volumes as to the barbarous condition of the country at the time, and the entire_ in- security of life and limb which existed; and the impression to be derived from it is confirmed by the earlier Anglo-Saxon laws, which are full of pen- alties against the most brutal bodily injuries. Hence, it is plain, it was the policy of Alfred to restore literature by establishing security of person, and with that view to restore the reign of law — a most remarkable illus- tration of tlie inseparable connection between law and civilization, and the absolute necossity of peace and order as agents of civilization. With this 18* O 210 THE SAXONS. [CHAP. I. a code for the government of his whole kingdom, and it view, the chronicler says, "he appointed centuries, which they call hun- dreds, and decennaries, that is to say, tithings, so that every Englishman living according to law, must be a member of both, and if any one was accused of a crime, he was obliged immediately to produce persons from the hundred and tithing to become his surety, and whoever was unable to find surety must dread the severity of the law," i. e., he had to undergo either the ordeal or some form of trial. And if any one who was impleaded made his escape either before or after he had found surety, all persons of the hundred and tithing paid a fine to the king ( William of Malmesbury, B. 2, c. 4). Now, comparing this carefully with reference to contemporary his- tory, it will be found that the true meaning of it, or, at all events, all that ia true in it, is, that Alfred adapted the institution of tithings and. hundreds to the object he had in view, by founding on it the Saxon institution of frank- pledge, making all the inhabitants pledges for each other, a system the principle of which remains to thLs day, having been adopted by the act of George I., which made the hundred liable for damage done by rioters. To suppose that he instituted hundreds and tithings is a great error, since they were known to the Romans long before his time, and the truth is, as Lord Coke explains, he restored or renovated the institution, though even as to that it is remarkable that these things are not mentioned in the laws until Edgar. Neither Malmesbury the chronicler, nor Asser, his biographer, make any mention of the laws which pass under his name, but they both concur in one statement, that he was a strict inquirer into the sentences passed by his judges, and a severe corrector of such as were imjust {Ibid.). This state- ment — which is far stronger and more pointed than Asser's — is remarkably exemplified in the severe sentences of Alfred recorded in the Mirror of Jus- tice, a book which, although written in its present form in the reign of Ed- ward I., bears internal evidence of having been founded upon one originally written soon after the reign of Alfred, since almost all the names of judges or parties mentioned are unmistakably Saxon, and the names of judges under Edward are known, and were all Norman ; and, moreover, it professes and purports to record what took place under Alfred, and to give a kind of com- parative account of the law Us it existed under Alfred and under Edward. In this respect, then, it is one of the most interesting of the sources of our legal history. And it is curious that the author should not have mentioned it here, especially as he mentions an obsolete and doubtfiil book, of which all trace has been lost, unless by it is meant either the collection of laws which passes under Alfred's name, or the original of that very treatise which is now under notice, and which may have been called Alfred's Liber Judicially, or Book of Dooms. And for this latter supposition there is great reason, for the treatise in question bears upon the face of it evidence that it was founded upon an ancient book of the age of Alfred, and purporting to record a number of "Alfred's dooms" — that is, of judgments pronounced by Alfred or by judges under his authority ; and these dooms appear all to have been preserved and incorporated in the work in que.stion, and afiforded such valuable and remarkable illustrations of the legal history of the period, that they may properly and usefully be here extracted ; that is to say, all those passages which bear traces of being as old as Alfred. The treatise begins with a, statement that the realm was divided into shires, the names of which are given, and in which it is remarkable that Warwickshire is spelled in the Saxon way, i^uerwickshire. The Roman origin of our territorial divisions and civil institutions is betrayed in the statement that eighteen of the shires had been committed to counts or comites (called by the Saxons earls), and therefore had been by the Romans called comitates, as each had been com- CHAP. I.] THEIR WRITTEN LAWS. 211 obtained, with great authority, during several reigns, mitted to one of the comitea; and it is stated that, " 30 at this day these shires are called in Latin ' comitatus,' and that which is vnthout these counties be- longs to the English by conquest " — a remarkable statement for more reasons than one ; it may explain how it is that some counties end with the word shire and others do not, and next, it shows that the Saxons, in the main, preserved the ojd institutions and divisions. It then mentions the division of the country into centuries or hundreds, and tithings or decennaries — not ascribing it to Alfred. Then it states that, for the estate of the realm, King Alfred caused the earls to meet, and ordained that twice in the year, or oflener if need be, they should meet at London; "and that by this estate many ordinances were made by many kings until the time of the king that now is," i. e., Edward I. ; and then it states the substance of these laws, which are here stated,_ only as far as it appears from the Saxon laws, was really the law of the time of Alfred. The sheriffs were ordained to defend their counties, and bailiffs, in the place of centiniers or hundredors. And the sheriffs and bailiffs caused the free tenants of their bailiwick to meet in their counties and hundreds, at which justice was so done that every one so judged his neighbor by such judgment as a man could not elsewhere receive in the like cases, until such time as the customs of the realm were put into writing, and certainly established. And although a freeman com- monly was not to serve without his assent, it was assented to that free tenants should meet together in their counties, hundreds, and the lord's courts, if they were not especially exempted to do such suits, and there judge their neighbors. And that right sliould be done from month to month in the counties, if the largeness of the counties required not a longer time ; and that every three weeks right should be administered in other courts ; and that every free tenant was bound to such rule, and had ordinary jurisdiction. The turns of sheriffs and view of free pledges were ordained ; and it was ordained that none of the age of fourteen years or above, was to remain in the realm above forty days, if they were not first sworn to the king by an oath of fealty, and received into a decennary (B. 1., s. 2). Then afterwards (s. 15), that county courts were held monthly, and the judgment was by the suitors, and the other inferior courts were the courts of every lord, to the likeness of hundred courts, " where right was to be administered without delay " (sec. 15). And again, "the sheriffs by ancient ordinances held meetings twice in the year in every hundred," where all the freeholders within the hundred were bound to appear, and because sheriffs, to do this, made their turn of the hundreds, and such appearances are called .the sheriffi' " tourns," — where it belongeth to them to inquire of all personal offences done within their hundreds, and of all wrongs done by the king and king's officers, and of wrongs done to the king (sec. 16). Then it " was ordained that there should be in each hundred a view of frankpledge, that is, to show the frank- pledges, and if all the frankpledges had their dozens entire," whence it appeared that they were not in decennaries but in dozens, that is, that the number of each was not ten but twelve, which was, it will be observed, the number of a jury. And this meeting of the hundred was called the " leet" (sec. 17), and made presentment of nuisances, etc. Then there is this pas- sage, which seems to show that these "leets," or assemblies, were the origin of juries : " and though the bailiffs cannot determine any action at the leet, if any be grieved by wrongful presentment, it is lawful for the bailiff or steward, by twelve of the more discreet men, to inquire of the truth, though no decennary or juror is not attestable with less than two juries " — treating the decennaries and grand jurors as identical [Ibid.). "And if any one proffer himself to swear fealty to the king, he is to be pledged in some frank- 212 THE SAXONS. [CHAP. I. pledge and first in the decennary '' (sec. 17). All this is evidently of the time of Alfred, for it relates to the very constitution .of frankpledge which he first established, and it connects it with the jury system. In a previous passage it is said, "The panel (of jurors) are to be of decennaries; for sheriffs at their tourns, or bailiffs at their view of frankpledge, have power by authority of their office to send for the people, which none other have without the king's consent, and that is for the keeping of- the peace, and for the right of the king and the common people" (sec. 13). All this, again, relates to frank- pledge, and therefore is of the age of Alfred, and connects it with juries, and identifies decennaries with jurors. And there are numerous evidences that the book had its basis in a work composed after Alfred's time. There is mention made of a judge who is afterwards said to have been hanged by Alfred (see. 1). There is mention made of a case decided in the time of King Edmund (Book ii., sec. 17). There are many instances of indictments, in which, without any exception, all the names are Saxon (sec. 13-22). The part of the work, however, which most unmistakably points to the time of Alfred, and most conclusively identifies it with the "doom-book" above re- ferred to by the author, is that in which, literally, Alfred's dooms are set forth. " It is an abuse that judges and their oflicers who kill men by false judgment, are not destroyed as other murderers, which Alfred caused to be done, who caused forty-four judges to be hanged in one year as murderers for their false judgments." This is, as other facts show, wilfully false. "He hanged Segnor, who judged Selfe to death after sufficient acquittal. He hanged Cadwine, because he judged Hackwy to death, without the eon- sent of all the jurors, and whereas he stood upon the jury of twelve men, and three could have saved him against the nine. Cadwine removed the three, and put others upon the jury, upon whom Hackwy put not himself. He hanged Markes, becansed he judged During to death by twelve men who were not sivarn. He hanged Seafaule, because he judged Olding to death for not answering. He hanged Thurston, because he judged Thurnger to death by a verdict of inquest taken ex officio without issue joined. He hanged Athelstane, because he judged Herbert to death for an offence not mortal. He hanged Rombold, because he judged Lischild in a case not notorious, without appeal, and without indictment. He hanged Freburne, because he judged Harpin to die, whereas the jury were in doubt in their verdict; for in doubtful cases one ought rather to save than to condemn. He hanged Hale, because he saved Tristram the sheriff from death, who took to th6 king's use from another's goods against his will, forasmuch as between such taking from another against his will, and robbery, there is no difference. He hanged Bermond, because he caused Garbolt to be beheaded by his judgment in Eng- land, for that for which he was outlawed in Ireland. He hanged Alflet, be- cause he judged a clerk to death over whom he had not cognizance. He hanged Muclin, because he hanged Helgaire by command of indictment, not special. He hanged Saxmund, because he hanged Bunold, in England, where the king's writ runneth, for a fact which he did in the same land where the king's writ did not run. He hanged the suitojrs of Calevot, be- cause they had adjudged a man to death in a case not notorious, although he were guilty thereof; for no man can judge within the realm but the king or his commissioners, except those lords m whose lordships the king's writ doth not run. He hanged the suitors of Dorchester, because they judged a man to death by jurors in their liberty, for a felony which he did out of the lib- erty, and whereof they had not the cognizance by reason of property. He hanged the suitors of Cirencester, because they kept a man so long in prison that he died in prison, who would have acquitted himself by foreigners. In his time the suitors of Doncaster lost their jurisdiction, besides other punish- ments, because they held pleas forbidden by the customs of the realm to CHAP. I.] THEIR WRITTEN LAWS. 213 being referred to, in a law made by King Athelstan, as an miihoritative guide' (a). ' However, this work, valuable as it was, had probably the defects of all original attempts. On that account, as well as on account of the irruption and settlement of the Danes, and the consequent prevalence of their customs, it was found necessary in the days of King Edgar to revise this compilation, or make another byE^'waJS'the more full, and more suitable to the then state '^°''''^°'- of the law. But this undertaking was left unfinished ; 80 that the grand design of making a complete code of English law fell to the part of Edward the Confessor (b), who is said'' to have collected from the Mercian, West Saxon, and Danish law, a uniform body of law to be observed throughout the kingdom.' From this circum- stance, the character of an eminent legislator has been conferred on Edward the Confessor by posterity ; who have endowed him with a sort of praise nearly allied to that of Alfred : for as one is dignified with the title of legum Anglicanarwn Conditor, the other has been called kgum Anglicanarum Eestitutor (c). judges and Buitors to hold. In his time, Colgrin lost his franchise of enfan- genthief, because he could not send a thief to the common gaol of the county, who was taken within his liberty for a felony done out of the liberty. In his time, Buttolphe lost his view of frankpledge, because he charged the jurors with other'articles than those which belonged to his view. In lesser offences he did not meddle with the judgments, but removed the judges, etc. In his time every plaintiff might have a commission, and a writ to the sheriff, to the lord of the fee, or to certain justices, upon every wrong done (Book 5, sec. 1). Now, it ii manifest that all this is recorded of the time of Alfred ; and it shows plainly that trial by jury was fully established in criminal cases, and, no doubt, in civil cases also. (a) Had the author read the laws, he would have found that there was no foundation for the statement. Athelstane makes no allusion to Alfred's laws, but simply says that such a fine shall be paid, as the doom-book may say ; which may mean his own, or any other, and there were express provisions on the subject in most of the laws, as in Edward's, for instance: and not especially in those of Alfred. (6) Had the author read the laws of Canute he would have seen that his collection is far more full than any other ; but, as already mentioned, there was no attempt by any one to embody or codify all the laws, and these suc- cessive collections were only collections of written laws. There is no con- temporary evidence that the Confessor ever made such a code as is supposed, and the idea of such a code was far beyond his age. The notion, no doubt, arose out of a misapprehension of the cause of the great regard shown by the people for the customs of his time. (c) There is no more foundation for the one title than the other, nor an " Ca., 5. « Hoveden, Hen. II., Leg. St. Edw., 35 to 36 ; Lamb., p. 149. » 1 Bla., 66. 214 THE SAXONS. [chap. I. It is said that the Dom-boc of Alfred was in being about the time of Edward IV. ; but we hear nothing of the fate attending the volume compiled by Edward the Confessor {a). As to the nature of the work : it seems atom of contemporary authority for either. On the contrary, contemporary authority points rather to Edgar as the author or restorer of our laws, and his laws are far superior to those of Alfred, and as good as those which have come down to us as those of the Confessor. In the collection of the laws of the Confessor, made by royal authority, only a few years after his death, it is said : " Et sic auctorizati sunt leges regis Edwardi : qiux prius adinventce et eonstitutrnfuerunt tempore regis Edgari, avi sui " (Ang.-8a/x. Laws and Inst., v. i., p. 458). Popular ideas are often not supported by authentic contemporary authority. In the next sentence, the author shows he assumes that Alfred's " dooms " had not come down to us, and in the next he shows that he equally assumed the non-existence of any of the laws of the Confessor. But on both points it will be seen he was in error. (a) Because there was no such code. If there had been, it must have been known of in the next reign, and it would not have been necessary for the Conqueror to order a compilation of the Confessor's laws to be made, as he undoubtedly did, according to all historians, in the fourth year of his reign. This collection has come down to us, and it is headed thus : " Post quartura annum adquisicionis regis Willielmi consilio baronum suorum, fecit sum- moniri per universes patriae comitatus Anglos nobiles sapientes, et in lege sua erudites, ut eorum consuetudines ab ipsis audiret. Electis igitur de singulis totius patrise comitatibus 12 jurejurando imprimis sanxerunt ut quoad possent recto tramite incedentes, legum suarum ac consuetudinum sancita edicerent ; nil pretermittentes, nil addentes, nil prevaricando mutan- tes" {^Ang.-Sax. Laws, v. i., p. 442). It would be impossible to imagine any- thing more apparently authentic than this collection. These laws are general in their application to the whole kingdom, with several special exceptions which are expressly mentioned. One of the first shows that the prerogative of the king to administer justice in the supreme courts was recognized, for it runs thus: "Ubiourhque justicia regis vel alia quselibet justicia cujus- cumque sit, tenuerit placita," etc. [Ibid., p\ 443). It appears that the ordeal was still resorted to, and it is laid down, " assit ad judicum minister episcopi cum clericis suis, et justicia regis cum legalibus hominibus provincise illins, ut videant et audiant omnia aequo fiant et quos salvaverit Dominus per misericordiam suam et justicia eorum, quietis int et liberi abscedant ; et quos iniquitas et injusticia sua condempnaverit, justicia regis de ipsis fieri facial justiciam" (e. ix., p. 446). It appeared that there were civil and criminal courts in the hundreds and the counties, ai^d also courts baron in manors. There is little in the collection relating to anything except the rights of the church and the administration of justice ; there is no reference to the rights or customs of the people, except in a clause referring to their right to assemble in their counties in fall " folomote," and to elect a sheriff, and discuss public affairs (which is omitted in some copies). It is remarka- ble that though there is a recognition of the rights of the church, there is no recognition of the rights or institutions of the laity. It is difficult indeed to imagine any popular enthusiasm excited by anything in this collection, except as to the county assemblies ; the main importance of which, however, would be as necessary for the maintenance of the rights and easterns of the peoplp. And though this collection is clearly, as far as it goes, authentic, it is not surprising, therefore, that people should have doubted whether these could be indeed the laws of Edward the Confessor, about which the people CHAP. I.J THEIE WRITTEN LAWS, 215 probable, that as the Danes had now become incorporated into the body of the people, their laws were melted down into one mass with the Mercian and West Saxon ; and all together composed a set of laws to govern both peoples. This, most likely, was done with equable qualifications of all these laws, so as to render submission to them, by both nations, neither strange nor oppressive. It should seem, there was throughout that book a constant intima- tion what was Saxon, Mercian, or Danish ; as we find in the laws of "William the Conqueror, which were designed to make certain alterations in those of Edward, frequent mention of them by their respective names, as different subsisting laws. As the collection of Edward the Confessor comprised in it the whole law of the kingdom, it contained not only the unwritten customs, but the laws and statutes made by the several kings. By the loss of this volume, we are were ao anxious. But a little attention will solve the difficulty, and show that it arose from an error, already pointed out, in confounding the written laws with the unwritten ; and an attentive reference to contemporary history in the chronicles will show that what the people were chiefly anxious about was the maintenance of the "customs" of the Confessor — that is, the cus- toms which existed in his time, which were erroneously imagined to have been put into writing by him, a notion for which there is no foundation. What these customs were, and that they were not written in his time, will appear from the laws of the Conqueror, which commence thus, "Istse sunt leges et covMietadines quos Willielmus rex post adquisicionem Anglise omni populo Anglorum concessit tenendas seadem, quas predecessor suus Ed ward us, servavit." And then among the " laws and customs " are these, " Coloni et terrarum exercitores non vexentur ultra debitum et statntum, nee licet dom- inos removere colonos a terris dummodo debita servicia persolvint." This, which was a reproduction of a law of Ina almost, the earliest Saxon king, and of an imperial edict in the time of the Roman occupation (vide Intro- duction), was a recognition of the right of the great body of the agricultural tenants all over the country, to retain their tenements so long as they ren- dered their services, and it would be impossible to conceive anything more vitally important to the great body of the people. There was another cus- tom recognized, the right of inheritance, and the equal division of land, " Si quis paterfamilias casu aliquo sine testamento obierit, pueri inter se hseredi- tatem paternam sequaliter dividant." And there was another as to the local administration of justice in the courts of the county, or hundred : " Nemo qnerelam ad regem deferat nisi ei jus defecerit in hnndredo vel in comitatu" u!. 43), which was a reproduction of similar provisions in Saxon laws. These two customs may have strongly interested popular feelings, through the medium rather of their prejudices than their real and solid interests ; but the first-mentioned one, as to the rights of the agricultural tenantry all through the country, must have been of vital importance to the great body of the people, and a reference to these " customs " thus recognized by the Conqueror as existing under the Confessor, will amply explain the anxiety of the people about the customs of the Confessor'B time. 216 THE SAXONS. [CHAP. I, left very much in ignorance as to the extent, scope, and nature of these customs. It is not so with the written laws of these times ; for we have many of these still re- maining. These remains of Saxon legislation give us some insight into the nature of their jurisprudence. As laws, if not made to create some new regulation, are designed to restrict, amend, or enlarge some pre-exist- ent custom or law ; they always enable us to make some conjectures respecting the subject upon which they are intended to operate. From these Saxon laws we may pronounce, that matters of judicial inquiry were treated with great plainness and simplicity. Like the laws of a rude people, they are principally employed about the ordering of the police ; and accordingly contain an enu- meration of crimes and their punishments (a). As this (o) No doubt this is so, and these laws are, for the most part, the mere rec- ords of the barbarous usages of a barbarous race — these written laws being the peculiar laws or usages of the Saxons themselves, which they brought here, and therefore of the rudest and most barbarous character. It has been already shown that they established no institutions, though there are recog- nitions of existing institutions (as, for example, the manorial and ecclesi- astical) ; which were entirely of a rural character, and had little applicable to cities, or relating to municipal institutions ; and as already shown, the earlier conquests of the Saxons would be in the rural districts, their progress would be gradual, the cities would be the last subdued, and in the rural dis- tricts the amalgamation of the races would be the most slow, and the bar- barous usages most deeply rooted. Moreover, it is to be remarked of these laws that the earlier of them were local, and only related to particular king- doms of the Heptarchy. Those of Ethelbert, for instance, relate to the province of Kent ; those of Ina and Alfred to the West Saxons. It was not until after the Danish invasion that there is any indication in the laws of a general application to all England ; and it is in the laws of Athelstane that first there are expressions which denote that they have that character (AngUy- Saxon Laws, p. 225). These laws contain internal evidence that they were framed for the whole realm, as they establish a general coinage and currency, enumerating the cities where there are to be mints, and these include all the chief cities in the country, at least as far north as London ; these laws like- wise include the customs of London. These laws, however, seem to indicate that the more northern and central counties were under the Danish rule, and the laws of Ethelred are said to have been made in Mercia, according to the • laws of the English, and he is called King of the English (p. 305). It is only in the laws of Canute for the first time declared that they were made by the king of all England and king of the Danes (p. 359), and to be observed over all England (p. 377) ; and these establish one general law for all the races with special exceptions, which are specified. Thus, then, up to the time of Athelstane these laws were merely local. Athelstane was the first king of all the Englishj and his were the first laws for the whole of the Saxon race, but his dominion only extended over half England; and Canute wasthe first monarch who reigned over all England, and who framed a col- lection of written laws for the whole of the population of the country. His, therefore, was the first compilation of laws which could be considered gen- CHAP. I.] THEIR WRITTEN LAWS. 217 makes the greater part of the Saxon laws now existing, it may fairly be concluded that the Dom-boc of Alfred and eral or national : those of Alfred were entirely local ; and, aa to the sup- posed'compilation by the Confessor, it has already been shown to be a mere fiction. It may be of interest here to select from these collections all the laws which appear worthy of mention. First, as to the established church : as already mentioned, the earliest of these laws mention bishops and priests, and church property, and further disclose that the bishops had seats in the national or local councils, for the laws of Ina commence with a statement that they were made with the council of the bishop and his eldermen, and the rest of the distinguished members of the witan (Anglo-Saxon Laws, 103). These laws ordain payment of church soot (Ibid., 105 ; Ina., 4), as do subse- quent laws (Edgar I., 3 ; Ethel., vi. 18 ; ix. 11 ; Edgar, i. 2, etc.) ; Tithes are ordained to be paid in the laws of Edgar (i. 3), and later laws (Ethel., ix. 8 ; Can., 8 ; Ethel. I., Ed. Con}., 70) ; and the hearth-penny, or Peter's pence (Ed-gar and Ethd.). The earliest laws command the observance of Sundays (Ina, 3; Can., 46; Alhels.,i. 24; iii. 2; Ethel., v. 13; vi. 22; Edgar, i. 5; Can., 14), and mass days (Alf., 43; Edgar, i. 5; Can., 14). Throughout the laws there is an emphatic recognition on the part of the people of their common Christianity ; and it is interesting to observe how, under the influ- ence of the church, the laws bear the impress of a spirit of equality, and equal justice, to all classes and races of the people. Thus, through the laws of Ina is to be observed an evident endeavor to put the British on the same footing as the Saxons-; the laws are framed generally for both races, and there are special provisions in favor of the British (Ina, 33-46). And so as to ranks and classes. The laws of Ina commence thus : — " First, we com- mand that' God's servants hold the lawful rule; after that, we command that the law and doom of the whole folk to be thus held." And almost the first law is, that if a theow, or slave, be made to work on Sunday, he shall be free (ina, 3), and none could be put into slavery but for felony or stealing (7). There is a general provision for the whole of the people, — " If any one de- mand justice before a scire-man (shire-reeve, sherifi'), or other judge, and cannot obtain it, and the man will not give him satisfaction, let him pay a fine, and within eight days do him justice : if one takes revenge before he demand justice, let him give up what he has taken to himself, and pay dam- age and a fine " (sec. 9) : if any commit forcible ouster, let him give up what he has taken and pay a fine (Ina, 10), — laws which were evidently suggested by the Soman law, and aimed at the establishment of the supremacy of law and legal justice over that rough and legal justice which is the great char- acteristic of a barbarous state of society. The criminal code was, as might be expected, barbarous ; a thief could not be punished with death (Ina, 12), unless his life could be redeemed, and an habitual thief could have his hand or foot cut off (Ina, 18-37). The same laws contained the first of a series of •enactments which run all through the Saxon laws, requiring transactions to take place before witnesses, who .should afterwards be able to testify as jurors, the jurors at first being witnesses, and proceeding according to their own knowledge. If a chapman trafiic among the people, let him do so before witnesses ; if stolen property be attached with a chapman, and he have not brought it before good witnesses, let him prove that he was neither party to the theft, nor thie^ and pay the penalty (Ina, 25) ; and there are similar pro- visions in later laws of Edvoard I., Ath. I., 10, 12 ; Edm., c. 5 ; Edj., 6 ; Ed., 5; Edg., 6 ; Ethel. I., 3 ; Can., 24; Ed. Omf., 38. These provisions are im- portant, as containing the first germ of trial by jury. The laws of Ina are the first that deserve mention. The laws of Ina contain an important recog- nition of the condition of serfdom, as distinguished from slavery, — "If any 19 218 THE SAXONS. [CHAP. I. the compilation of Edward the Confessor were mostly- filled with the same kind of matter. one go from his lord without leave, or steal himself away into another shire and be discovered, let him go where he was before, and pay a fine" (Iita, 39). This comes between two laws relating to "ceorls" (pronounced "churls") or husbandmen, whom the Latin version call " coloni," and who are throughout distinguished from " theows " or slaves, who held no property and could pay no penalty, and as to whom it had been provided that if they ran away they should be hanged {Ina, 24). These "ceorls," then, were the "coloni" of the Roman-British period ; and the villains or villeins of later times, the orig- inals of our modern copyholders. They held tenements on servile tenure, afterwards secured by custom, the tenure being that of rendering services in the way of agricultural labor or supplies. This tenure, even in those early times, was already distinguished from tenure at certain rent. For there is a subsequent law, " If a man agree for a yard of land or more (i. e., for a free tenancy of it, at a rent, as distinguished from the servile tenancy of the ceorls) at a fixed rent, and plough it, if the lord desire to raise the land (i. e., the rent) to him, to service and rent, he [i. e., the tenant) need not take it upon him, if the lord do not give him a dwelling, and let him lose his crop," that is, let the landlord lose it, unless he gives the dwelling as an equivalent for the increase of rent. So Lambard reads it. It is .still a principle of our law that if the landlord determine a tenancy at will, after the tenant has sown the land, the tenant shall have the crops, which is called the right of emblements. So much for the tenant's right. Then there are other pro- visions as to landlord right. " He who has so many as twenty hides, shall leave twelve hides of cultivated land when he wishes to go away; he who has ten hides, shall leave six hides of cultivated land ; he who has three hides, shall leave one and a half" {Ina, 14, 15). These laws could not refer to the villeins, who could not " go away : " they must have referred to free tenants at certain rents. And the " ceorls," who were not slaves, though feudal serfs, could acquire property, and could lease other land than that they held in villenage, as they could have cattle, etc. " The ceorl who has hired another's yoke, ifihe have to pay wholly in fodder, let him do so; if he have not, let him pay half in fodder and half in other goods" (Ina, 60). Whence it appears that payments were in kind, and probably the rent was so paid. The ceorls evidently belonged to manors, and held pasture land of the manor in common, as copyholders do still. " If ceorls have a common meadow, or other partible land to fence, and some have fenced their part, some have not, and cattle come in, and eat up their common corn or grass, let those who own the gap compensate the others who have fenced their part, the damage which then may be done; and let them demand such justice on the cattle as may be right : but if there be a beast which breaks hedges, and goes in everywhere, and he who owns it will not, or cannot restrain, let him who finds it in his field take it and slay it, and let the owner take its skin and flesh, and forfeit all the rest" (i. 42). The point to be observed here, is the recognition and careful protection of the property of " ceorls " or villeins. So, from another of the laws of Ina, " A ceorl's close ought to be fenced: if it be unfeneed, and his neighbor's cattle stray in through his own gap, he shall have nothing from the cattle ; let him drive them out and bear the damage" (s. 4),— which is good law at this day, and has lately been applied in one of our courts of common law {Singleton v. Williams, 6 H. & N.). It will be observed that the laws of Ina contain the germs or elements qt a great deal of good law, no doubt derived from the Roman ; and which have been developed in later times, relating; to the dealings and transactions of men in the affiurs of life. Thus, for instance, in one of the laws of Ina we CHAP. I.] THEIR WRITTEN LAWS. 219 The first of the Saxon laws, now in being, are those of King Ethelbert. These are the most ancient laws in our realm, and are said to be the most ancient in modern Europe. This king reigned from 561 ^''™^*™- find this, "If a man buy any kind of cattle, and he then discovers any un- soundness in it within thirty days, then let him throw the cattle on hia hands, or let him (the other) swear that he knew not of any unsoundness in it when he sold it to him." This law, it will be observed, made provision for a case not provided for by the contract, and it contains a principle which has been adhered to and developed in later times. (See Bumby v. Bollett, 16 M. & W.) These portions of law, indeed, were few and fragmentary, and contrast with the rudeness and barbarity of the usages by which they are accompanied ; still they show the seeds and germs of something like law. And it is very remarkable that the laws next in order of time are those of Alfred, who, like Ina, was only king of the West Saxons, and are greatly inferior to his. Though he had the benefit of Ina's laws, and says he selected from his and others, the only really good laws of Ina's are omitted, and there is nothing in those laws of Alfred's beyond the barbarous usages of the Saxons, except one or two laws already alluded to, and the following " of tearing by a dog : " " If a dog tear or bite a man, for the first misdeed let six shillings be paid, if the owner gives him food ; for the second time, ten shillings ; for the third, thirty shillings. If, after any of these misdeeds, the dog escape, let the penalty nevertheless be paid. If the dog do more misdeeds, and the owner keep him, let him make amends according to the full sum for wounds" (Al- fred, 24). The treaty of peace between Alfred and Guthrum applies the practice of compurgation to cases of homicide. The laws of Edward the Elder, the next in chronological order, are thought stricter, far superior, and contain the first germs and elements of civil or criminal procedure. As to civil suits, the sheriffs are to hold courts once a month (Ed., 11), and do jus- tice, and give a term to every suit (Ed., 1, s. 11) ; and if any one denied justice to another as to land, he should give him a " term " where he should do justice before the sheriff; or pay a penalty (Ed., 2). As to criminal suits, if any one was accused of theft, and no one would be compurgator for him, then he must stand to judgment (6) ; and men who were not "oath-worthy" or credible, were to undergo the ordeal; but, as much as possible, trans- actions were to be before witnesses who might afterwards testify as jurors (1). If the accused could bring forward sworn witnesses, or the oaths of credible persons in the county as compurgators, he could do so (1) ; otherwise, six of the men of the neighborhood where he was resident. The witnesses were sworn, and were really jurors ; for jurors originally gave their verdicts of their own knowledge ; tiie difference between the jurors and the compurga- tors being, that the latter swore from their knowledge of the character of the accused, and the other from their knowledge of the matter. This verdict or true testimony of sworn witnesses, men of the county, was called " shire-oath" in the Saxon laws, and they were called jurors in other contemporary laws. Thus, in the capitulary for 593, " Si litus de quo inculpatur, ad sortem am- bulaverit mala sorte priserit, medietatem ingenui legem componat, et juror tores sex medios electos dare debet " — a phrase borrowed from the Koman law, in which the magistrate was sued "judices dare," i. e., "judices facti," or jurors (vide Introduction). The most important parts of the laws of Athel- stan, the first which were framed for the whole population and dominion, relate to this subject of procedure. Thus the shire-oath is mentioned, "He who seizes cattle, let five of his neighbors be named to him, and of the five let him get one who wUl swear with him that he took them rightfully ; and 220 THE SAXONS. [CHAP. I. to 636. The next are the laws of Hlothaire and Eadric, and of Wihtred, all kings of Kent. Next are those of he who will keep it to himself — i. e., the claimant — let ten more be named to him, and let him get two of them to give the oath that it was born on his property" [Athel., 1, 9). Then there is a provision that transactions take place in the presence of witnesses who might afterwards testify that, as jurors (10) ; and there are provisions for the ordeal in cases where such testimony of jurors cannot be got, nor sufficient compurgators (Athel., 7). So of the laws of Edgar — (those of Edmund have nothing worth noting) — the most important provisions are those on this subject ; that he who denied the doom of the hundred, and it was afterwards proved against him, should pay the penalty {Edgar, 3) ; that no one should possess unknown cattle without the testimonies of the men of the hundred (4) ; that the hundred court be held as before fixed, once a month, and the county court twice a year (ii. 5) ; that witnesses be appointed in every borough and hundred in every hundred twelve (Svpp., 5) ; and that all the transactions be before some of the wit- nesses, who were first to be sworn to give true testimony of all they did know, and whose testimony afterwards was to be sought in any civil or criminal matters (Ibid., v. 10). So, in the laws of Ethelred, there are provisions as to witnesses (i. 3 ; iii. 2), and at hundred courts the twelve sworn freeholders were to take oath not to present any one untruly (Ibid., 3). The laws of Ethelred, though extremely voluminous, contain nothing original, and are, for the most part, religious precepts or ordinances. As already mentioned, the laws of Canute were the first which were formed for the whole kingdom ; and they are the first after those of Ina that deserve the name of a compi- lation of anything like laws. They are divided into ecclesiastical and sec- ular. The first confirm all former laws as to payment of tithes, church scot, and Rome fee, or Peter's pence, and the observance of Sundays and festivals. There is a distinct ordinance against Sunday marketings and folcmote, unless it be for great necessity : " and let huntings and all other worldly works be strictly abstained from on that holy day " (Eec. Laws, (Jan., 15). The secular laws, ordained to be observed over all England, commence by laying down a noble principle : " Let God's justice be exalted ; and henceforth let every man, both poor and rich, be esteemed worthy of folc-right, and let just doom be doomed to him" (1). And that Christian men be not for too little be condemned to death (2), nor sold out of the land (3), nor that thieves and public robbers perish unless they amend (4). Heathenism was prohibited (5). All manslayers were to pay the penalty, or be outlawed (6). One money was to pass over all the nation, without any counterfeit, and no man was to refuse it ; and if any counterfeited, he was to have his hands cut ofi" (8). And all weights and measures were to be carefully rectified, and every species of fraud was prohibited (9). Local customs were preserved (12, 14, 15) ; but the general laws laid down applied equally to all ; and whoever was outlawed forfeited his land (16). No one was to apply to the king's court unless he could not get justice in the hundred (17). And twice a year there was to be a county court for thfe administration of justice (18). No man was to take a distress before he had four times demanded justice — thrice at the hundred court, and once at the county court (19). Every freeman was to be brought into a hundred and tithing (20). Every freeman who was not infamous, and had never failed in oath or ordeal, could clear himself with a single oath ; others had to find compurgators, or go to the ordeal (22). No man was to buy without the witness of four men, either of the borough or the hundred (24). And every lord, i. e., of a manor, was to have his household in his own "borh," or borough, i. e., his own court-baron the court of his manor; but if any one accused one of his men of anything, he was to answer in the CHAP. I.] THEIB WRITTEN LAWS. 221 Ina, king of the "West Saxons. After the Heptarchy we have the laws of Alfred, Edward the Elder, Athelstan, Edmund, Edgar, Ethelred, and Canute. Besides these there are canons and constitutions, decrees of councils, and other acts of a public nature (a). These are in the hundred court (21) ; the courts-baron only having juriadiction over the ten- ants of the manor, and in matters arising between the tenants themselves. Housebreaking, and arson, and theft, and murder, were, by the secular law, declared not subjects of compensation — that is, they were liable to the pen- alties of the king's criminal justice (60). The civil offence of forcible ouster, was to be punished by restitution and compensation, and a fine to the king (64). If any one died intestate, the lord was only to have a heriot ; and let the property be distributed among wife, and children, and relations, to every one according to the degree that belongs to him (71). And where the hus- band dwelt without claim or contest, let the wife and children dwell in the eame^unassailed by litigation. And if the husband, before he was dead, had been cited, then let the heirs answer, as himself should have done if he had lived (73). And he who has defended land (i. c, against all claims) with the witness of the shire, let him have it undisputed during his day, and after his day to sell, and to give to him who is dearest to him : a law in which we see the origin of fines and recoveries — that is, alienations or acquisitions of land by proceedings in a real or feigned suit in a court. It will be seen that these Jaws are far superior to any that went before, and really deserve the name of a compilation of laws. And it is a remarkable instance of national prejudice that Alfred, who framed no laws worthy of the name, and even overlooked and neglected many which are valuable, and Edward the Confessor, who framed no laws, nor made any compilation of laws at all, should, by reason of false tradition, arising from national feeling, have had the reputation of legislators, while Canute, who really deserved the credit of wise and careful legislation, yet, being a Dane, has had no credit for it. (o) This is the proper place in which to present a summary of the eccle- siastical laws or institutions of the Saxons, whether gathered from their municipal laws or their ecclesiastical canons or constitutions. As already mentioned, the earliest Saxon laws make mention of an episcopal church as already existing and established, and guarantee its property (Elhelh., 1). There were laws of the Saxons relating to ecclesiastical matters, contained both in the secular and ecclesiastical laws enacted by the kings in their coun- cils, and there were also ecclesiastical canons and constitutions put forth by tiie prelates, under the sanction of the state, but with only spiritual penal- ties. The latter are alone alluded to here, but as the author has omitted all notice of the laws of the Saxons relating to ecclesiastical matters, it is neces- sary here to present an analysis of them. It has already been mentioned that, by the Saxon political constitution, the bishops had seats in the national council, and all the laws are prefaced by a formal declaration of their con- sent (Laws of Ina). " With the counsel and teaching of the bishops and ealdermen and distinguished ' witan ' " (A.-S. Laws ; Laws of Alfred). " Many synods a.ssembled among the English race after they had received the faith of holy bishops and other exalted 'witan' (wise men), and they then in many synod-books wrote dooms (or law) ; And I, Alfred, gathered thera together, and, by counsel of my ' witan,' commanded those to be written which seemed to me good" (Ibid., 19). Laws of Athelstan: "I, with the counsel of the archbishop, and of my other bishops," etc., (Ibid., 193). All t^is was established in the great synod, at which the archbishop, with all the noble- men and "witan," etc. (Ibid., 215). So the secular laws of Edmund: "I, 19* 222 THB SAXONS. [chap. I. Saxon language, and were some of them collected, in one volume in folio, by Mr. Lambard, in the time of Queen with the counsel of my 'witan,' both ecclesiastical and secular" (Ibid., 247). So Edgar: " With the counsel of my ' witan '" (I6id.,263). So Ethelred : " The ordinances that the king and the ecclesiastical and lay 'witan' have done" {ibid., 305). So much for the authority of the secular laws of the Saxons, and the union of ecclesiastical and lay elements in their constitution. Next, as to the matter and substance of their secular or municipal laws, so far as they relate to spiritual or ecclesiastical things. The laws of Ina began by upholding the rule of the bishops : " First, we command that all God's ser- vants hold their lawful rule" (1). Next, baptism was enforced with a pen- alty : " Let a child within three days be baptized," etc. (2). Sunday work- ing was prohibited (3). Church scots were ordained to be paid (4). The right of church sanctuary was established (5). The laws of Alfred first up- held episcopal jurisdiction : " If one pledge himself to what is lawful, and belie himself, let him suffer what the bishop may prescribe" (1). The right of sanctuary was also upheld (2). So, as tp confession, "If any man seek a cloak for any of those offences which had not been before revealed, and then confess himself, in God's name be it half forgiven (5). The abduction of a nun was made penal (8). Fighting before a bishpp was made penal (15). Pledges by baptismal vows were enforced (33). Days were given as holy days fiJr the celebration of masses (43). If a priest killed a man, all his goods were to be forfeited, and let the bishop secularize him ; then let him be given up, unless the lord will compound for him (21). So the laws of Alfred and Guthrum declare that they established secular laws for these reasons, that they knew that else many men would not submit to the spiritual laws, and hence they established civil penalties, when men would not submit to the spiritual law by correction of the bishops {A.S. Laws, p. 163). So church sanctuary was ordained, and any one who violated Christianity or reverenced heathenism by word or work, let him pay penalties (2). If a man in orders steal or fight, etc., let him pay penalty ; and, above all, make amends before God, as the canon teaches, or yield to prison. If a mass- ?riest misdirect the people about a festival or a fast, let him pay a penalty, f a priest refuse baptism to him who has need thereof, let him pay a pen- alty (3). If a man in orders foredo himself with capital crimes, let him be seized and held to the bishop's doom (4). To this it may be added that, in the Mirror of Justice, it is stated that Alired hanged a judge because he fudged a clerk to death over whom he had no cognizance (c. v., s. 1). And if a man guilty of death desire confession, let it never be denied him (5). If any one withhold tithes, let him pay a penalty. If any one withhold Rome's fee (i. e., Peter's pence), let him pay a penalty. So if any one does not discharge church scot, or deny divine dues (6). If any one engage in Sunday marketing, let him forfeit the chattel and pay a penalty. If a freeman work on a festival, let him forfeit his freedom or pay a penalty (7). If a freeman break a lawful fast, let him pay ; if a theow (slave) do so, let him suffer in his hide (i. e., be flogged). The laws. of Athelstan begin by enforcing tithes (A.-S. Laws, V. i, 145). So the laws of Edmund, which were civil and ec- clesiastical, and in the ecclesiastical laws enforced the canons as to celibacy and the payment of tithes, church scot, and "Bome fee" (p. 246), in the sec- ular laws uphold the right of church sanctuary (249). So the ecclesiastical laws of Edgar enforce tithes, church scots, and the " heartb-penny " or St. Peter's pence (p. 265), and also festivals and fasts (Ibid.). So the secular laws of Ethelred uphold the riglits of the church. Let no man reduce a church to servitude, nor unlawfully make churoh-mongering, nor turn out a church minister, without the bishop's counsel {A.-S. Laws, p. 317). Let God's CHAP. I.] THEIR WRITTEN LA-flfS. 223 Elizabeth, and published under the title of ApxamvofAia; sive, de priscis Anglorum legibus. To this additions have since been mad e by Dr. Wilkins. These remains compose, all together, a body of Anglo-Saxon laws for civil and ecclesiastical government. We have refrained from mentioning some laws which have gone under the name of Edward the Confessor, as they have been rejected for spurious,^ upon the fullest con- sideration of antiquarians (a). They are in Latin, and dues be paid — that is, plough alms and tithes, and " Borne fee," and church scot (308). Let Sunday festivals be rightly kept, and let marketings and folomotes be carefully abstained from (13). And let all St. Mary's feast-tides be strictly honored (14), and all other festivals and fasts (15). And the witan have chosen that St. Edward's mass-day shall be celebrated all over England (16). And if any excommunicated man (unless a suppliant) dwell anywhere in the king's proximity before he has earnestly submitted to divine correction, let it be at the peril of himself and all his property (p. 313). The ecclesiastical laws of Canute ordained that if a priest was charged with a crime, he should clear himself in the " housel," or with the "corsned" (vide ante, p. 203) ; and if a priest was found in false witness or theft, etc., let nim be cast out of the community of ecclesiastics, unless he made amends, as the bishop might direct {A.-8. Laws, v. i., p. 365). And tithes and church scot and "Rome fee" were to be paid (367). And Sundays were to be ob- served, and festivals, and fasts (376). And, by the secular law, if a servant of the altar be a homicide, or work iniquity, let him forfeit both degree and country, and go in exile, as the pope shall prescribe to him, and do penance (Ibid., 401). If a man in holy orders defile himself with crime worthy of death, let him be seized and held to the bishop's doom, according as the case may be [Ibid., 402). If any one with violence refuse divine dues, let him pay penalty (405). So also the laws of the Confessor contained similar pro- visions (443), of whieh the chief have been given. (a) This is a mistake, unless all that the author meant was that this col- lection of laws was not actually made by or under the Confessor ; and that it by no means contained the whole of the laws in force in his time ; and, indeed, as he cites this collection himself, this is probably his real meaning, which is hardly expressed correctly by the word " spurious." The collection, upon the face of it (as already has been seen), purports to have been made in the fourth year of the Conqueror [vide ante, p. 214), and would hardly be less authentic on that account. But there is no doubt that it was extremely imperfect, and indeed omitted the most important portions of the laws in existence under the Confessor, because those laws were for the most part cus- tomary, and unwritten, and there would be great di£Bculty in collecting and embodying unwritten customs. That this was the real reason of the imper- fect character of this collection, has been already shown, and will be seen from a subsequent collection of the laws of the Conqueror, in which he em- bodies many of the customary laws in force under the Confessor. " Istse sunt leges et consuetudines quas Willielmus rex, post adquisicionem Anglise, omni populo Anglorum concessit tenendas; seadem quas predecessor smis Edwardus, servavit." These laws were conceded in consequence of the clamor of the people for the customs of the Confessor, and in the meantime those customs had been better ascertained. Thus, therefore, it is rather in ' Spelman voce Ballivus. 224 THE SAXONS. [CHAP. I. bear evident internal marks of a later period. They are supposed to have been written, or collected, about the end of the reign of William Rufus ; and are to be found in the collections of Lambard and Wilkins. the laws of the Conqueror, than in this collection of the laws of the ConfesBor, that the most important portions of the law in force under the Ckinfessor are to be found ; those portions having previously been unwritten {vide ante, p. 215). And this is only an illustration of an observation which has already been made more than once, that the most important portions of the law in existence under the Saxons were customary and unwritten, and embodied in usages and institutions, in existence at the time of the invasion, and un- doubtedly of Boman origin. The Conqueror in his laws preserved all the customs and institutions previously existing (save so far as consistent with any of his own newly-enacted laws), and this was very much what the Saxons had done before. CHAPTEE II. WILLIAM THE CONQUEBOB TO BENBY IL (a) The Conquest — Saxon Laws Confirmed — The Laws op William THE Conqueror — Trial by Duel in Criminal Questions — Estab- lishment OF Tenures — Nature op Tenures — Different Kinds OF Tenures — Villenage — Of Escuagb — Consequences op Tenure — Of Primogeniture — Op Alienation — Of Judicature — The Curia Regis — Justices Itinerant — The Bench — The Chancery — Judicature op the Council — Op the Spiritual Court — Op the Civil and Canon Law — Doctrines op the Canon Law — Probate OF Wills — Constitutions of Clarendon — Op Trial by Duel in Civil Questions — Of Trial by Jury — By the Assize — Op Deeds — A Feoffment — A Fine — Op Writs — Op Eecords. THE accession of William of l^rormandy to the English throne makes a memorable epoch in the history of our municipal law. Some Saxon customs may be traced by the observing antiquary, even in our present body of law ; but in the establishment made in this country by the Nor- mans, are to be seen, as in their infancy, the very form and features of the English law (6). It is to the Conquest (a) The author heads this and the next two chapters alike — "William the Conqueror to John ;" thus treating the whole period as one, and mixing up the events of it without distinguishing the important era in the history of our law which is marked by the reign of Henry II. The second of these two chapters, however, is entirely devoted to the law as it was in the reign of Henry II., and therefore it appeared better to so entitle the chapter of that reign, and to entitle the present, William I. to Henry II. (6) This and what follows must be taken with great qualification, and is true only to a limited extent ; for, as already has been shown in the Intro- duction, it would be far more true to state, as Lord Hale does, that "in the establishment made in this country by Edward I. are to be seen, as at their infancy, the very form and features of English law." And this, indeed, at a future page the author himself will be found to indicate. The Conquest, by itself, eScted far less direct alteration in our laws and institutions than the author appeared to suppose, and the change was infinitely more gradual and progressive than he here represents. The Normans brought the trial by battle and the feudal system; and this was all that was distinctive in their system. All the rest — all that has remained to us — was of Eoman origin. Although it may have been developed in the Norman period, it was not characteristically Norman, and would have been, no doubt, in due time developed by any nation as it attained civilization, and advanced in in- telligence. The laws of the Conqueror and his- successors preserved the P 225 226 WILLIAM I. TO HENRY II. [CHAP. II. and to the consequences of that revolution that the ju- ridical historian is to direct his particular attention. A laws and eiistoms of the Saxons, save so far as inconsistent with any laws and institutions which he introduced. The principal change he introduced was a development of the feudal system, which was military in its character, and therefore did not interfere with civil institutions, &nd not necessarily with civil rights, except within 'the limits of its own operation. The customary rights of the agricultural tenants, who formed the main body of the people, were confirmed. There is a remarkable passage in Bracton which very well explains what occurred at the Conquest, and is the account given in the Mirror, which says, that at the Conquest many freeholders were forced to hold their lands in villenage ; which implies that it was not a universal revolution : — " Fuerunt etiam in conquestu liberi homines qui liberg tenuerunt tenementa suaper libera servitia vel per, liberas consuetudinas, et cum per potentiores ejecti essent, postmodum reversi receperunt eadam tenementa sua tenenda in villenagio, faciendo inde opera servilia : sed certa et nominata : et nihilominus liberi quia licet faciat opera servilia cum non faciunt ea ratione personarum sed ratione tenementorum " [Braelon, lib. 1, c. 11, fol. 7). That is, they were not villeins, though they held their land in villen- age, subject to the invaders who had ejected them. It is manifest that this was not a universal, or legal, or political change, but the result of individual acts of spoliation, and probably only against the tenants of those who had forfeited their lands in war. And there is a remarkable passage in the Mirror, which affords an apt commentary upon the above, and a striking illustration of what occurred at the Norman, and probably at the Saxon conquest. It says that the first conquerors {and, as the work was originally written in the Saxon times, this no doubt indmkd the Saxons, though, of course, it also applied to the Normans) " enfeoffed the earls, barons, knights, and villeinSj some to hold by tenure for the defence of the realm, and some without obligation of service, and some to hold by villein customs, as to plough the lord's lands, to reap, cut, and carry his corn or hay. And it is said villeins are tillers of land, and of villeins, there are tillages called vil- lenages, and that villeins became freemen if their lords granted or gave to them any free estate of inheritance to descend to their heirs, or if the lord took homage from them." So that the land might be made freehold wiihovi deed. And then it is said, "And although the people have no charters, deeds, or muniments of their lands (i. e., they who so held), nevertheless, if they are put out of their possessions wrongfully, they might be restored to their estates as before, because they could sliow that they knew the certainty of their sermces and works by the year, as those whose ancestors before them were astraeis (i. e., serfs), for a long time" (lb.). From which it plainly appears that some villeins became, by custom or implied grant, tenants in socage, or by certain plough-service, which was a freehold tenure, and so made them freemen ; for it was a maxim in law that freeholders must be freemen ; and, therefore, to have a freehold was to be free. This power of custom must have been of inconceivable value and importance to the great body of the people, who were thus becoming gradually emancipated, and raised from slavery to villenage or serfdom, from villenage or serfdom to freedom ; and this may explain the attachment of the people to what they called the "customs of the Confessor," i..e., the customs known and remembered as of his time, by the generation of men living at and after the time of the Con- quest. And it is remarkable, that in the Mirror, immediately after the pass- age just quoted, follows this: "And theireupon (i. e., upon the customary enfranchisement of villeins by their lands becoming freehold) St. Edward, in his time, caused inquiry to be made of all such who held, and did to him CHAP. II.] THE CONQUEST : ITS EFFECTS AND RESULTS. 227 new order of things then commenced. The nature of landed property was entirely changed ; the rules by which Buch services as ploughing his land, besides their lawful customs," — i. e., tliose who became emancipated through holding any of their land by certain socage or plough-service_, which made it freehold, and so made them free, irrespec- tive of other services. And it is_ added, " that many of them were wrongfully forced to do other services, to bring them into servitude again" (76.), which, no doubt, was after the Conquest, and caused that great cry among the people for the restoration of the customs of the Confessor — i. e., of the Confessor's time. These customs and tenures were expressly confirmed by the Conqueror. No sudden or sweeping change in our institutions was effected, and all the municipal institutions, as well as the manorial, were maintained. So the tenure of land, except so far as regarded those who held under military tenure — that is, by knight-service, which applied only to the nobles and knights — the common freehold tenures, also the tenure in villenage, were left unaffected. The charter of the Conqueror, indeed, imposed an oath oJF allegiance upon all freemen ; but allegiance implies protection, and the charter went on to guarantee their possessions ; and though it also imposed, as a condition, readiness for military service for the defence of the realm, there is nothing to carry it further than that obligation, which already existed, and is indicated in the laws of Canute as to military reliefs [vide ante). The Conqueror expressly confirmed the customs of the country as to the rural tenantry, villein.s, or freemen. No doubt, as Lord Hale says, the Conqueror, like all previous conquerors, took into his hands all the demesne lands of the crown (Hist. Eng. Law, p. 97), and no doubt, also, he seized the lands of all who had been in battle or rose in rebellion against him (lb., 97), and in regranting these lands, impQsed military service as the condition of ten- ure. But that great authority cites Spelman, and an ancient record which he quotes, and maintains that all others were allowed to retain their lands upon the ancient tenure (98) ; and he cites the great case of the recovery of a large number of manors, after the Conquest, according to the ancient laws and customs of England, the record of which is set out at length by Lord Coke in his Reports, and also by Spelman, in his Life of Eadmerus (Hist. Com. Law, 98). Lord Hale shows that it was only partially the possession or the tenure of land was altered, and so as to the rule of descent ; it was, he says, altered "little by little," an expression which accurately expresses the historic truth. Thus, then, the changes in the tenure of land were, in the words of Hale, introduced not at. once, but by "little and little," and were not general, but, for a time, only partial and gradual. And this was the real character of all the changes introduced at the time of the Conquest, and so it has "been on all similar occasions in our history ; and therefore the statements which follow can only be ta,ken as true, subject to this important qualification. The changes that were effected, indeed, were rather by judi- cial than legislative authority, and were mainly the result of alterations in the sy^em of judicature. But the statement that a new system of judicature waa created, for example, is not correct, and is calculated to mislead ; for, as already pointed out in the Introduction, nothing is so remarkable in our legal history at this era as the absence of any apparent change in our legal system, and the skill with which it was modified without being changed : which will be seen in the history of this and the next reigns. It is to be observed, with regard to the estates of the church, it is clear that their tenures were not altered; for Glanville, who was chief justiciary under Henry II., distinctly states in his celebrated Treatise that the baronies of the bishopri&s "are held in frankalmogne" (lib. vii., c. 1). Littleton quite confirms thiSj and Lord Hale, as already has been seen, strongly con- 228 WILLIAM I. TO HENET II. [CHAP. II. personal property was directed, were modified ; a new sys- tem of judicature was erected ; new modes of redress con- tests the notion that thete had been any general alteration in the tenure of the land of the kingdom at the Conquest. If, therefore, Blackstone stated " that the C!onqueror thought fit to change the spiritual tenure of frankal- mogne, under which the bishops had their lands during the Saion govern- ment, into the feudal tenure by barony" (2 Bla. Comm., 156), all that is im- portant is his distinct admission that the tenure was so before the Conquest; the testimony of Glanville, of Bracton, of Littleton, and of Hale is over- whelming to show that the tenure had not been legally changed. The changes produced in the laws after the Conquest being the result rather of judicial than legislative changes, it would have been better to have first given some account of those improvements in the judicature which led to these re- sults. Instead of this, however, the author ha.'» given, without any authority, a theory of sudden change, including the sudden institution of a curia regis, to which he seems to ascribe great importance ; whereas, the ordinary justice of the country, court and criminal, being local, and remaining so for a long time, it was in the local judicature the most important changes took place, and those very gradually and by degrees. Towards the end of the chapter the author gives some account of a change instituted in the proceedings of the county court, which led to a result not less important than the establish- ment of trial by jury in all cases ; but he failed to notice the not less impor- tant fact that it was before the king's justiciary the court was held, and that he directed the jury to be sworn, and thus efiected this important change. That was one instance of the important changes effected, not by legislation, but by judicial decision, and therefore gradually and by degrees. And in the order of time and events these changes in the judicature which produced these results, and then thosQ changes which they produced, should liave been recorded. Moreover, these changes for the most part did not take place in the reign of the Conqueror, nor of his successor ; and though the beginnings of some of them took place in this reign, they were for the most part com- menced in the reign of Henry I., and carried out in that of Henry II. Both of these reigns constitute eras or epochs in our legal history far more im- portant than that, of the conqueror, whose conquest was rather a political than a legal event, and made no sudden or immediate general change in the laws or institutions of the country ; and though the Conquest led to these changes, it was indirectly and almost accidentally, and chiefly by the gradual development of legal principles in judicial decisions. It was not, therefore, the direct effect of the Conquest so much as its indirect and accidental con- sequences which produced these changes, and thus it is they were so gradual and progressive. This would have been seen more clearly had the author separated the reigns of the Conqueror and his successor from those of Henry I. and Henry II. The course of progression would then have been dis- played, which it is the great object of legal history to exhibit. Instead, how- ever, of that course, he has treated those three important reigns all together, and has thus produced great confusion, lost the chronological order of events, and missed the progression they illustrate. For example, he does not deal distinctly and separately with the reign of Henry I., and that elaborate body of laws of his reign, of which we have a most valuable collection, which is noticed and cited by Lord Hale, and is once or twice cited by our author, but of which he offers no account. Yet it is most important, as the middle stage between the state of our laws and institutions at the time of the Conquest and for some time after it, and that period of development which they had reached in the reign of Henry II., under the auspices of Glanville. It is not easy to supply in notes deficiencies so extensive, still less easy is CHAP. II.] THE CONQUEST : ITS EFFECTS AND RESULTS. 2B9 ceived ; new forms of proceeding were devised ; the rank and condition of individuals became entirely new ; the whole constitution was altered ; and after fluctuating on a singular policy, pregnant with the "most opposite con- sequences of freedom and slavery, by degrees settled into peace and orderly government. In short, a state of things then took place, from which, after innumerable alterations, arose the present frame of English jurisprudence. It has long been a debated question, in what manner William was the conqueror of this island ; nor has the dis- cussion been confined to historians and antiquaries : the adherents of modern parties did, at one time, warmly in- terest themselves in the decision of a point, which they considered as involving consequences very material to the political opinions they avowed. The lovers of high mon- archical authority thought they derived a very ancient and rightful title to all kinds of prerogative in the king, by maintaining that "William made the people of .,. ii_-i 1,-i The Conquest. this country submit, as a conquered nation, to his absolute will. The friends of liberty, admitting as it should seem, in some measure, the consequences of such a claim, contended as firmly that "William never assumed such powers, and was in truth no conqueror. Attempts have been made to explain the term conquest in such a manner as to get rid of any unfavorable conclusions from the word. It is said to have been a conquest over Harold, and not over the kingdom ; that conquest signifies acquest, or new acquired feudal rights ; ' with other explications of the like design and import ; so important a matter was it esteemed to ascertain the true nature of this event in our history ; as if the tyranny of a prince who lived seven hundred years ago, could be a precedent for the oppres- it to supply the lack of proper order and arrangement. All that can be done is to introduce, wherever an occasion occurs, any omitted matter which tends to supply these deficiencies, and fill up the gaps and missing steps in the course of the legal history. In order, also, to draw some distinction between the reigns, and especially to mark the important era of the reign of Henry II., the titles of this arid the two following chapters have been altered. The author had entitled them all " William the Conqueror to John ; " but as the most important portions of the first relate to the reign of Henry II., and the other two entirely so, it has been thought better to entitle the first " William I. to Henry II.," and the other two, " Henry II." and " Hettry II. to John." ^ In the law of Scotland, at this day, fefuda nova, or, as we call it, lands taken by purchase, are termed fms of Conquest. — Ersk. Prin., b. 3, tit. 8, 8.6.. 20 230 WILLIAM I. TO HENRY U. [CHAP. II. sions of his successors ; or any length of time could estab- lish a prescription against the inalienable rights of man- kind. The present, prevailing notions of free government are founded on better grounds than the examples of for- mer ages, when our constitution was agitated by many irregular and violent movements ; they are fotinded on a rational consideration of the ends of all government, the good of the whole community. To leave such useless dis- quisitions, let it suffice to relate the fact : that William put oif the character of an invader as soon as he conven- iently could ; and took all measures to quiet the king- dom in the enjoyment of its own laws, and a due admin- istration of justice. We are told, that in the fourth year of his reign, at Saxon laws con- Berkhamstead, in the presence of Lanfranc, armed. Archblshop of Canterbury, he solemnly swore that he would observe the good and approved ancient laws of the kingdom, particularly those of Edward the Confessor; and he ordered that twelve Saxons in each county should make inquiry, and certify what those laws were (a). When the result of this inquiry was laid before Wil- liam, and he had set himself to consider the different laws of the kingdom more particularly ; he showed a disposi- tion to give a preference to the Danish, as more conform- able with those of Normandy; being sprung from the same root, and better suited to the genius of his own sub- jects. This alarmed the English, who wished to have no (a) What took place is thus described in tie preamble to the collection of laws which was the result of the inquiry, "Post quartum annum adquisicio- nis regis Willielmi istius terrse, consilio baronum suorum fecit summonire peruniversos patriae comitatus, Anglos nobiles sapientes et in lege sua erudi- tes, ut eorum consuetndines ab ipsus audiret. Electis igitur de singulis totius patriae comitatibus xii jurejurando, imprimis sanxerunt ut quoad possent, recto tramite incidehtes legum suarum ac consuetudinum sancita edicerent, nil pretermittentes, nil addentes, nil prevaricando mutantes." It is impossi- ble to imagine anything more authentic, and yet the author elsewhere terms the collection " spurious," by which, however, probably he meant no more than that the laws were not enacted in this form under the Confessor, which, no doubt, is the case, for they purport, on the face of them, to be a collection of laws and customs ; still, there is a suspicious omission of matters important to the people. The first ten articles relate to the rights of the church, and the chief of these have already been noticed. The franchises of the nobility are mentioned, and the courts of the county and hundred. This is all that need be mentioned. The laws of the Conqueror himself were far more im- portant. CHAP. II.] THE CONQUEST: ITS EFFECTS AND RESULTS. 231 more of that law imposed, than what had been incorpo- rated into their customs by Edward the Confessor. They beseeched him not to recede from his solemn engagement ; and conjured him by the soul of Edward, who iiad be- queathed him his present sovereignty, to confirm the English in possession of their laws, as they stood at the death of the Confessor. To this William at length con- sented, and, in a general council,^ solemnly ordained (a), that the laws of Edward, with such alterations and addi- tions as he himself had made to them, should in all things be observed. In this manner was the system of Saxon jurisprudence confirmed as the law of the country ; and from thenceforth it continued the basis of the common law, upon which every subsequent alteration was to operate. Though these alterations soon grew very considerable, yet the direct and open change by positive laws was not great. The laws of William are in pari materid with those that remain of the Saxon kings, except such as introduced the feudal constitution, and the trial by duel. But a revolution was effected through other means, and that by (a) These really did contain important guarantees. It has been seen that there was no alteration as to the tenure of land, save so far as military tenure was already obligatory, or might be made so by actual grant of land on such tenure, or so far as all tenures were conditional upon allegiance and the de- fence of the realm. Then the laws of the Conqueror commenced thus, " Istae sunt leges et consuetudinus quas Willielmus rex, post adquisicionem Anglise omni populo Anglorum concessit tenendas, eidem quas predecessor suns servavit." And among them was expressly mentioned the customary rights of the agricultural tenantry holding tenure or villenage, who formed the great body of the people, " Coloni et terrarum exercitores non vexentur ultra debilum et statutvm, nee licet dominis remmere colonos a terris, dvmmodo debila sendda persolovant" (A.-S. Laws, 481, c. 1 ; Laws of W. Gonq., c. 29). So the burdens imposed by way of relief were defined, not only as to the knights, and barons, and landholders, but as to the villeins, or leaseholders. " Kele- vium villani melius averium," " qui terram ad censum annum tenet sit ejus relevium quantum unius anni census" (/6., 477). The jurisdiction of the county and hundred courts was upheld, " Nemo querelam ad regem deferat, nisi ei jus defecerit in hundredo vel in comitatu" (lb., 485). Oppressive distresses to enforce legal claims were repressed, "NuUus namium capiat nisi recto in hundredo vel comitatu tertii postulaverit " (c. 44). The rights of relations to the effects of an intestate was admitted, " Si quis pater famUias casu aliquo sine testamento obierit pueri inter se hsereditatem paternam tequaliter dividant" (c. 34). Criminal procedure, according to the Saxon law, was simplified and improved : if a freeman was accused of theft, he might, if a good character, purge himself by his own oath ; otherwise, by that of twelve compurgators : and capital punishment was confined to the graver cases. ' Leg. Conq., 63. 232 -WILLIAM I. TO HENRY II. [CHAP. II. slow and imperceptible degrees. The Kormans brought over with them a disposition to favor the institutions to which they had been used in their own country ; and the comparative state of the two people enabled them to suc- ceed in the attempt. Having, from their continental situation, had greater opportunities of improving their polity and manners, they had very far surpassed the Sax- ons in knowledge and refinement. This was discoverable in their laws, which were conceived and explained with some degree of artificial reasoning. Though this juris- prudence was simple compared with what it grew to in after times, it was conceived on principles susceptible of the inferences and consequences afterwards really deduced from it. The doctrine of tenures being once established by an express law, all the foreign learning concerning them of course followed (a). The other parts also of the Norman jurisprudence, their rules of property and methods of pro- ceeding, soon began to prevail ; they were referred to and debated upon as the native custom of this realm, or very fit to be ingrafted into it ; and, being once introduced and discussed in the king's courts, which were framed upon the Norman plan, and presided over by Norman lawyers, they gradually became a part of the common law of England. The revolution effected by these means was very im- portant indeed. Besides tenures, with all their incidents and properties, the aula, or curia regis, was established (6), (o) It is presumed the author means military tenures, sed vide ante. This and the other modes of tenure existed in this country before th^ Con- quest, as will have been seen from the Saxon laws. The whole of these passages are illustrations of the substitution of theories in place of historical verities. The theory of the author was, that the English law was moulded on the Norman ; and he deduced his theory from what seemed to him, no doubt, a strong probability. But there are those formidable /ocls and dates: (1) that the British had in the ninth century a system of law and legal pro- cedure as elaborate and complete as that of this country a century after the Conquest; (2) that the Normans had no collection of laws until after ours was thus elaborated ; (3) that the Orand Constumier of Normandy is subse- quent in date to the great treatise of Glanville, and is plainly founded thereon. And Hale, therefore, was of opinion that the Norman law was rather bor- rowed from ours than ours from the Norman. And that both were founded upon the Boman appears equally clear. (b) It will be observed that the author cites no authority for these state- ments, and they are far too extreme. There is no evidence that a " curia regis" was established in this reign, and certainly not all at once; though there is an allusion in Williaiu's laws to the Justiliarius Begis {A.-S. Lawt, CHAP. II.] THE CONQUEST: ITS RESULTS: TENURES. 233 as was the law of estates, the use of sealed charters, the trial by jury of twelve men, and the separate jurisdiction of the ecclesiastical judge. These were almost instant consequences of the Conquest. The other branches of the Norman law soon followed upon the like tacit admis- sion, that they constituted a part of the common law of the realm. We shall now consider those laws which were made by William the Conqueror, and have constantly gone under his name {a). The regulations wifiiaZ'the made by these laws seem, most of them, very ""i"*"'- c. i., 46), which cannot mean the sheriff, who is called Justicia Regis in the Laws 01 the Confessor, because it may fairly be supposed in the Laws of the Conqueror that the sheriff is convicted before the justiciary of some misconduct. But that evidently implies an extraordinary jurisdiction, and, as already mentioned, the Conqueror's laws had already enacted quod nemo querlam ad regem deferat nisi ei jus defecerit in hundredo vel comitatu, (c. 43), so that it is clear there was no curia regis with ordinary or primary jurisdiction, and that quite agrees with what the Mirror says, speaking of the era of the Conquest — that remedial writs directed the sheriffs to decide cases. " It was ordained that every plaintiff have a remedial writ to the sheriff, — questus est nobis quofl, etc., et ideo tibi (vices nostras in hac parte committentes) prsecipimus quod causam illam audias et legitime fine decidas" (c. ii., 3]. No other remedial writ is mentioned, and no curia regis, except the ex- chequer, which is described as constituted for matters of revenue, and rather as an office than a court, to "affeer" or assess amercements. The amerce- ments, indeed, are alluded to as imposed in the king's court, but even in the laws of Henry I. the county court is called the curia regis (c. 7), and no other curia regis is alluded to ; so that not only is there no evidence of the establishment of a curia regis at this time, but there is evidence that there was no such court. As to trial by jury also, it was, as will be seen, of very slow growth into a real trial by jurors on emdence, and for ages the jury were only witnesses. As to estates, they have already been alluded to ; as to deeds, they were known long before the Conquest. (a) The laws of the Conqueror are (as the author states further on) divided into separate portions, the first consisting of fifty chapters or sections, pro- fessedly (and to a great extent really) based upon the customs and laws of the Confessor, and have already been noticed ; and the author, it will be ob- served, of these most important portions has taken no notice. The next portion consists of laws which he himself, apparently at a later period, enacted, and which contain more political constitutions, of a more severe character, and more of the nature of the laws of Canute. These, it is to be observed, are numbered on with the others in the versions of the laws which the author cites, so that sec. 1 of the second series is cited by him as 51, and BO on ; whereas in the last edition of the Anglo-Saxon laws they are sepa- rated in their numeration. In these, however, there is the important clause, that the laws of Edward, i. e., of Edward's time, should be observed, except BO far as altered by any of the new laws. " Hoc quoque prsecipimus ut omnes habeant et teneant leges Edwardi regis in omnibus rebus adauctis hiis quas constituimus ad utilitatem Anglorum " (c. 13). The political con- stitutions the author notices farther on, and commences with those which are of a more municipal character. But in these he omits to notice the most 20* .234 WILLIAM I. TO HENBY II. [CHAP. II. little worthy of curiosity, as differing in nothing from the subject of many Saxon constitutions. They make some alterations in the value of weregilds and penalties. They sometimes merely enforce or reenact what was be- fore the law of the realm, taking notice of the differ- ences observed by the three great governing polities, the "West-Saxon, Danish, and Mercian. The parts of these laws which are most material are the following : — The relief, or consideration to be paid to the superior upon succeeding to the inheritance, was settled in the case of an earl, baron, and vavasor, — ^the first at eight horses, the second at four, and the last at one ; these were important — as tlie important laws relating to the "coloni," or villani, the tenants of manors, whieh have already been noticed, and to which it is here important to add an important law as to the serri, contained in th^ latter series. " Si servi permanserint sine calumpnia per annum et diem in ciyita- tibus nostris vel in burgia vel muro vallatis, vel in castris nostris, a die ilia liberi effioianter: et liberi a jugo servitutis sine sunt in perpetuum" {c. 16), upon which this important point is to be noted: that the "servi" are here distinguished from the villeins mentioned in the former series : these villeins being tenants in villenage ; the servi, if not slaves, at all eveifts are villeins in the sense of a personal, through predial servitude. It is very important to observe this distinction, which the author altogether loses sight of, con- founding vUleins with tenants in villenage, or even slaves with villeins. This law of the Conquejor may be best illustrated by some passages in the Mirror, as to the villeins and their emancipation. It is particularly pointed out that all villeins are not slaves, but that they are regardant or attached to the possessions of their lords ; that they are tillers of land, dwellings in upland (i. c, country) villages, for of vill, it is said, Cometh villeins, as of burghs, burgess, and of city, citizen ; and of villeins there are tillages, called vUlenages. Thus it is said that villeins become free in various ways, andj among others, by the lords allowing them to remain for a whole year within a city or upon the king's " demesnes," i. e., in a borough, for a borough was a town built upon part of the demesnes of the king, and owing him real service ; whence came tenancy in burgage, which thus can be traced back to the Conquest. In the present law, boroughs, which are Saxon, are distin- guished from cities, which are fioman, there being, it is noticed, none of our cities not of Roman origin. Another thing to be noted upon the law is, that as the Saxons found the municipal system here established, and merely adopted it, so of the Conqueror, who found the Roman cities, and the Saxon boroughs, and encouraged them. Another law upheld and enforced the frankpledge system, which was the laws of the boroughs, the Saxon " borh," or pledge, being in part the origin of the borough, and the same term. The Conqueror was careful of the police of the realm, and there was a law en- forcing upon all the municipal or civil authorities the duty of maintaining it. " Statuimus etiam, et firmiter prscipimus, ut omnes civitates, et burgi, et castella et hundreda totius regni nostri singulis noctibus vigilentur et cus- todiantur pro maleflcis et inimicis ; prout vice comites et aldermanni et pre- positi, et ceteri ballivi et ministri nostri melius per commune consilium ut utilitatem regni providebunt" (e. 6). And one weight and measure were es- tablished throughout the realm. CHAP. II.J LAWS OF THE CONQUEROR. 235 to be caparisoned with coats of mail, helmets, shields, and other warlike accoutrements.^ The relief of those who held by a certain rent was to be one year's rent,^ and that of a slave, or, as he was now called, a villain, was to be his best beast.* It was directed, that if a man died intestate, his children should divide the inheritance equally.* It was strictly enjoined that no one omit paying the due services to his lord, on pretence of any former indul- gence.^ A regulation was made respecting namium, or, as it has since been called, a distress, a kind of remedy which, according to some, was introduced by the S"or- mans, and according to others was before in use here. It was directed,* that a namium should not be taken till right had been demanded three times in the county or hundred court ; and if the party did not appear on the fourth day appointed, that the complainant should have leave of court to take a namium or distress sufficient to make him full amends. Thus this summary remedy was considered only in the light of a compulsory process, and was there- fore called distrvcUQ (and thence in after-times distess), from distringere, which in the barbarous latinity of those days, signified to compel. The remarkable law made by Canute in protection of his Danes was adopted by William, in favor of his own subjects. He ordained ^ that where a Frenchman * was killed, and the people of the hundred had not apprehended the slayer and brought him to jus- tice within eight days, they should pay forty-seven marks, which fine was called murdrum. By virtue of this, pre- sentments of Englishery were made ; and all the former law upon the subject was continued, with the single dif- ference of putting Frenchman in the place of Dane. Wil- liam forbade all punishments by hanging, or any other kind of death ; ' and substituted in the place of it several kinds of mutilation ; as the putting out of eyes, cutting oft" the hands or feet, and castration. This alteration was made, says the law, that the trunk may remain a living mark of the offender's wickedness and treachery. There are some laws of William which establish the trial by duel, and sketch out certain rules for the applica- tion of it.^" By one law, the same liberty is given to an > 229 Conq., 22, 23, 24. ' 29. » 34. 7 26. « 229 Conq., 67. MO. *38. "42. 'Francigena. " 68. 236 -WILLIAM I, TO HENRY II. [CHAP, II. Englishman, which every Frenchman had in his own country, to accuse or appeal a Frenchman, by duel, of theft, homicide, or any other crime, which before that time used to be tried either by the ordeal or duel. If an Englishman declined the duel, then the Frenchman was at liberty to purge himself by the oaths of witnesses, ac- cording to the law of iformandy. On the other hand, if a Frenchman ' appealed an Englishman by duel, the Eng- lishman was to be allowed his election, either to defend himself by duel or by ordeal, or even by witnesses ; and if either of them were infirm, and could not or. would not maintain the combat himself, he might appoint a champion. If a Frenchman^ was vanquished, he was to pay to the king sixty shillings. In case of outlawry,^ the king ordained, that an Englishman should purge himself by ordeal; but that a Frenchman appealed by an Englishman in such a case, should make out his innocence by a duel. However, if the Englishman should he afraid,*' says the law, to stand the trial by duel, the Frenchman shall purge himself pleno juramento, that is, by oaths of compurgators. Thus was the trial by duel formally established in criminal inquiries ; but with such qualifications annexed, as show .a regard to the prejudices which both people had in favor of their own customs. The trial by duel in civil causes (a) does not appear to have been introduced by any (a) There is one of the laws of William which has escaped the observa- tion of the author, and apparently had reference to trial by jury — jurors in those days being, it will be borne in mind, witnesses. This law is in accord- ance with a series of similar Saxon laws, the origin of which evidently was to provide for trial by jurors, by providing witnesses of transactions who might afterwards be jurors. Hence the present law — " ne venditio et eruptio fiat, nisi coram testibus, et in civitatibus. Interdicimus ut nulla viva pecunia vendatur aut ematur, nisi inter civitatea, et hoc ante tres fideles testes," (c. 10). This law probably had a twofold bearing, in favor of cities and of trade, and also in favor of the administration of justice, by providing pre-appointed witnesses who might be jurors. It is to be borne in mind that ordeal or battle were only resorted to from default of witnesses who might be jurors. If there were no witnesses, there could be no trial by jury ; and hence the recourse to other modes of trial, from an apparent necessity. From the Mirror it plainly appears that this was so, and that the duel, like the ordeal, was considered a mode of trial, and only resorted to in default of a better, and that the duel was considered less absurd than the ordeal, the parties being each sworn to the truth of their respective cases, and then attesting the ' 229 Conq., 69. ^ 70. In these and other passages the word is Ihmeigena. ' De omnHms rebm vMagarue, 71. * Nm avdeat. CHAP. II.] LAWS OF THE CONQUEKOR. 237 particular law ; but when this opening wa8 made, it soon began generally to prevail ; and indeed, after such a prec- edent, it had more color of legal authority than the numerous other innovations derived from that nation. It was declared by a law of "William" (a), that all free truth of their oath by their persons ; wherefore this mode of trial was called "juramentum duelli." " There are, it is said, many manner of proofs, by record, by battle, by witnesses" (i. e., jurors). "And the usage of battle is allowable by the law, so that the proof in felony and other cases is often by battle, according to the diversities of the case. For iafdcmy none can con- test for another; but in actions it is lawful for the plaintiff to make their bat- tles by their bodies or by lawful witnesses, because in real actions none can be witness for himself; and no man is bound to disoover his real right," (the parties in the duel being, as already stated, smorn to the truth of what they contended for.) Combats, it is added, may be in other cases than felonies, " for if a man hath done any falsity to one, for which he is appealed, and denies it, it is lawful for one to prove the action either by jury, or by any body, or by the body of a witness." "And so it is in oases where you deny your gift, bailment, pledge, or deed, and in cases where the battle could not be joined, nor was there any witness, the people in personal actions used to help themselves by a miracle of God (the ordeal) ; and if the defendant could not give battle, and if the plaintiff had no witnesses to prove his action (so that there could not be a trial by jury, the jurors being witnesses), then the defendant might clear his credit by the miracle, or leave the proof to the plaintiff, for Christianity suffered not that they be by such wicked arts cleared, if one may otherwise avoid it." And then it is stated that whoever waged the battle was sworn to the truth of that for whicli he contended, so that he was a juror. Thus, therefore, the ordeal was regarded as a mode of trial by jurors. (a) This is only one of several political constitutions, and it is important that they should be considered all together. They are the first in the second series of the Conqueror's laws, and amply exhibit his most matured policy. At the outset, in the first article, he propounds the wise scheme of a just and impartial rule over all classes and races of his subjects, with the view of blending them in one kingdqm, on the basis of their common faith, " Statuimus imprimis super omnia unum Deum per totum regnum nostrum venerari, unam fidem semper inviolatam cuatodiri, pacem et secritatem et concordiam judicium, et justiciam, inter Anglos et Normannos, Francos, et Britonea, etc. ; et inter omnes nobis, subjectos per universam monarchiam regni Britannise, firmiter et inviolabiter observari." Then comes article 52, extracted by the author. Next is an article placing all the subjects of the realm under the king's protection, "ut omnes homines sint sub protectione et in pace nostra per universum regnum." Allegiance and protection being correlative, they are thus closely connected in the laws. Then comes the clause of immunity: "Ut omnes libeii homines totius monarchise regni nostri habeant et teneant terras suas et possessiones suas bene et in pace, libere ab omni exaotione in justa, et ab omni tallagio, ita quod nihil ab eis exigatur vel capiatur, nisi, servicium suum liberum, quod de jure nobis facere debent, et facera tenentur, et prout statutum est eis, et illis a nobis datum et concessum, jure hsereditario in perpetuum." Then comes c. 58, which the author extracts in the text, and then another, which he omits, and which is important for its construction, " Ut omnes liberi homines sint fratres conjurati 1 229 Conq., 55. 238 WILLIAM I. TO HENRY II. [CHAP. II, men e'hould enjoy their lands and possessions free from EBtawishment UTijust exactions and talliages; so that nothing of tenures. \,q taken from them but what was due by reason of services, to which they were bound. What those services were, we are now going to consider. The mpst remarkable of William's laws are cap. 52 and 58. The tenor of the 52d is this : Statuimus et omnes liheri homines fcedere et sacramento affirment, quhd intra et extra universum regnum Anglice {quod olim voeabatur regnum Brit- annicB) Wilhelmo suo domino jideles esse velint; terras et honores illius fidelitate uhique servare cum eo, et contra inimkos, et alknigenas defendere. The interpretation put upon this law is, that all owners of land are thereby required to engage and swear, that they become vassals or tenants, and as such will be faithful to William, as lord, in respect of the dominium (upon the feudal notion) residing in a feudal lord ;* that they would swear, everywhere faith- fully to maintain and defend their lord's territories and title as well as his person; and give him all possible assistance against his enemies, whether foreign or do- mestic.^ These engagements and obligations being the fundamental principles of the feudal state, it was said that when such were required from every freeman to the king, that polity was in effect established. As the enacting language of this law is in the first person plural, statuimus, and the king is spoken of in the third person, some writers think it must be considered as an act of the legislature. A regulation that was at ad monarchiam nostram et ad regnum nostrum pro viribus suis et facnltati- bus, contra inimicos pro poase suo defendendum, et viriliter servandum ; et pacem, et dignatatem coronse nostras integram observandum ; et al judicium rectum, et justiciam constanter omnibus modis pro posse suo sine dolo et sine dilatione faciendam." The scope of the whole seems to be simply allegiance and protection, and the defence of the realm, by means of knight-service, for the defence of the kingdom ; and possibly also, at the desire of many of the owners, it changed their former tenure into knight-service ; which introduc- tion of new tenures, however, was not done without the consent of the coun- cil of the realm, as appears by the provisions already quoted, whereby it appears, says Hale, that there were two kinds of military provisions — one that was set upon all freeholds by common consent of freeholders, and was called assize of arms, and the other was by tenure, upon the infuedation of the tenant, and was sometimes called knight-service. And hence it came to pass that these estates descended to the eldest son (Hist. C. L., 222). And by "little and little," says Hale, "this rule of descent was introduced into the other lands of the kingdom" [Ibid.). > Wright, Ten., 68. 2 Ibid., 68. CHAP. II.] LAWS OP THE CONQUEROR. 239 once to overturn the whole law of the kingdom with regard to land, could not well be hazarded on any other authority; and indeed chap. 58 of these laws, which dilates more largely upon the subject of this, refers to it as ordained per commune concilium. The terms of this law are very general ; and probably it was purposely so conceived, in order to conceal the consequences that were intended to be founded thereon. The people of the country received with content a law which they looked upon in no other light than as com- pelling them to swear allegiance to William. The nation in general, by complying with it, probably meant no more than the terms apparently imported, namely, that I they obliged themselves to submit, and be faithful to "William, as their lord, or king, to maintain his title and defend his territory.^ But the persons who penned that law, and William who promoted it, had deeper views, which were a little more explained in his 58th law. This constitution runs in these words : Statuimus etiam, et firmi- ter proecipimus, ut omnes comites et barones, et milites, et servi- entes, et universi liberi homines totiu3 regni nostri prcedicti habeant et teneant se semper bene in armis et iri equis, ut decet, et oportet; et quM sint semper prompti, et bene parati ad servitium suum integrum nobis explendum, et peragendum, cum semper opus fuerit, secundum quod nobis de feodis debent et tenementis suis de jure facere, et sicut illis statuimus per commune con- cilium totius regni nostri prcedicti, et illis dedimus et concessimus in fcedo, jure hoEreditario (a). (a) Lord Hale, commenting upon this, observes that it related to the assize of arms, and to services reserved upon grants made out of the crown lands, who held on knight-service : and he adds that these laws were not imposed ad libitum regis, but were such as were settled by the common consent of the realm {Ibid., 107). So Hale observes elsewhere that the laws of the Con- queror confirmed the Saxon rule of descent, " Si quis intestatus obierit liberi ejus haereditatem sequaliter divident," and goes on to point out that this led to some evils, " as it weakened the strength of the kingdom, for, by frequent parcelling and subdividing of inheritances, they became so divided that there were few persons of able estates left to undergo public charges. And, therefore, William having got into his hands the demesnes of the crown, and also many and great possessions of those that opposed him, disposed of their lands, or great part of them, to those that adhered to him, and reserved certain honorary tenures." That is to say, as far as he could, he established tenure by military service. Lord Hale's view of the meaning of the consti- tution, it has already been shown, is correct — viz., that it applied only to the assize of arms, or those who held of the king, either part of his demesnes, or forfeited land granted by him on military tenure. And this view is up- 1 Wright Ten., 79. 240 WILLIAM I. TO HENRY II. [CHAP. II. By this law tlie nature of the service to be performed is expressly mentioned, namely, knight-service on horse- back ; and the term of each feudal grant vras declared to be jure hcereditario (a). This latter circumstance must have had a very considerable effect in quieting the minds of men respecting the nature of this new establishment. The Saxon feuds, being perhaps beneficiary, and only for life, were at once converted into inheritances ; and the Il^ormans obtained a more permanent interest in their new property, than probably they had before enjoyed in their ancient feuds. held by a reference to a passage in the Leges Henrici Primi ; which, though the author refers once or twice to the laws, he had not observed: — had he read them, he would not have failed to notice it. The passage here referred to is in c. 2, entitled "De confirmatione legum Edwardi Eegis:" "Militibus, qui per loricas terras suas deserviunt (or defendunt) terras dominicarum carucarum suarum quietas ab omnibus gildis et ab omni operse proprio, dono nieo concede, sicut tarn magno gravamine allevati sunt, ita equis et arma se bene istruant, ut apti et paraii sunt ad servitium meum et ad defensionem regni mei," which implies merely that they should be ready for military service when required for the defence of the realm, but was equally obligatory before the Conquest, as appears from the obligation to render military "relief" on the death of a noble or knight {vide Leges Can., 32). It is evident that this passage quite confirms Lord Hale's view. (o) The author failed to observe that, from the nature of feuds or fiefs, they necessarily implied a donation of land ; in that, it is manifest that Hale was right in his view that any alteration in tenure could only have applied either to the demesne lands of the crown, or to forfeited lands regranted by the crown. As Guizot points out, when the feuds were created the lands were given, and the Conqueror could only give lands which were his to give, and Hale conclusively shows tliat there was nothing like a general confisca- tion. The definition of " feudal" and allodial is very simple, as Guizot gives it. It is fe-od land, or property held as fee or reward ; and all-od land, or land held unconditionally and absolutely in full property. Guizot also points out that the word benefidwn, which preceded fe-od or fief, and meant the same thing; likewise on the face of it imported an estate or land received from a superior, and on the tenure of some service. He refutes the idea held by Montesquieu, Kobertson, and apparently by Beeve, that benefices were revocable or temporary, and shows that they were hereditary ; although some may have been temporary, or for life, as well as hereditary. And he accounts for the gifts ("reliefs") rendered on the death of the holder, by the desire to secure a confirmation and protection of the inheritance from the superior. For some centuries before the era of the Conquest, he thinks free- hold or allodial property was becoming beneficiary, and estates became changed into fiefs or feuds, mainly from a sense of weakness and desire for protection, which was gained by becoming a member of the great feudal hierarchy or organization under which the obligations of lord and vassal were correlative ; and the lord was bound to protect the vassal, as the vassal was bound to protect his lord (Led. mr la Oiv. en France, lect. i.). This ex- plains the spread of the feudal system, which, however, existed in its essence and substance before the Conquest, since " reliefs" and military reliefs were rendered, and were defined by the laws of Canute. CHAP. II.] THE FEUDAL SYSTEM. 241 From these two statutes were deduced the consequences of tenure : from these a new system of law sprang up (a), by which the landed property of the kingdom was entirely governed till the middle of the last century, and is, in some degree, influenced even at this day. The Norman lawyers, who were versed in this kind of learning, exer- cised their talents in explaining its doctrines, its rules, and its maxims ; and at length established, upon artificial reasoning, most of the refinements of feudal jurisprudence. By the operation of these two statutes, the Saxon dis- tinction between bocland and folcland, charter-land and allodial (b), with the trinoda necessitas, and other incidents, was totally abolished; and all the liberi homines of the kingdom, on a sudden, became possessed of their land under a tenure which bound them, in a feudal light, mediately or immediately to the king. Thus, if A. had (a) This is an error, for, as already shown, the system existed in substance before the Conquest, and, as Guizot shows, had been growing for ages. The prevailing error of the author is to lose sight of the progreisive growth and development of institutions. (5) It has already been shown that our author confused these distinctions. There was nothing in the above " statutes," or in any change effected at the Conquest, to alter them. Socland meant land held by deed, which might or might not be hereditary, or allodial ; for allodial land, i. e., common free- hold land, might of course be conveyed by deed, and it was indeed that kind of land which was chiefly so conveyed. Feudal land was not so conveyed or transferred, and, on the other hand, folcland, or land held by custom, might be hereditary (as is the case with "customary freeholds" at this day), though usually and originally not so. There was nothing in the feudal system to abolish or alter these qualities of land. Feudal was indeed opposed to allodial, although, as already shown, allodial land could be converted into feudal ; and so of lands already in the hand of the crown. The notion that the Saxon distinction between bocland and folcland was abolished, is an en- tire error. In the laws of Henry I., which, at all events, are an extempora- neous exposition of what was understood to be the law at that time, bocland is mentioned more than once ; and there is a remarkable passage in the Mirror, already quoted, in which folcland is distinctly described : " And although it be that the people have no charter deeds nor muniments of their lands, nevertheless, if they were ejected, or put out of possession wrongfully by bringing an assize (the remedy for ^freehold}, they might be restored to their estates as before, because they could show the certainty of their services ; and therefore it is said that St. Edward caused an inquiry to be made of such as so held by custom." The origin of this kind of tenure is also ex- plained in a previous passage, in which it is said that only if a lord granted or gave to a villein a state of inheritance, or even took his homage for it, then he would have such an estate, and be free ; yet he would have no deed to show, and the condition of his estate would only be known by common custom. This was the origin of all the common freehold estates of the king- dom as distinguished from those which were originally of military tenure. To suppose it therefore abolished at the Conquest was an egregious error. 21 Q 242 WILLIAM I. TO HENKT II. [CHAP. II. received his land of the king (a), and B. had received his of A., B. now held his land of A. on the same terms, and under the sanie obligations, that A. held his of the king (6) ; each considering himself under the reciprocal obli- gation of lord and tenant. In this manner it became a maxim of our law, that all land was held mediately or immediately of the king, in whom resided the dominium directum; while the subject enjoyed only the dominium utile, or the present cultivation and fruits of it (c). This position led to consequences of the greatest im- Natnre of portance. Military service being required by an tenures. exprcsB statutc (d), the other effects of tenure were deductions from the nature of that establishment. As all the king's tenants were supposed to ■ have received their lands by the gift of the king, it seemed not unrea- sonable that, upon the death of an ancestor, the heir should purchase a continuance of the king's favor, by paying a sum of money, called a relief, for entering into the estate (e). As he would be bound to the same service (a) But then, in order to grant it, the king must have it, and he could only have it either because originally belonging to the crown, or because forfeited to the crown by rebellion, treason, or some other cause of escheat. The notion of any statute having altogether altered the tenure of all the lands in the kingdom had been refuted by Hale, and is entirely visionary. (6) This, it is conceived, is an entire error ; that is, it would not neces- sarily be so. A person holding by knightaervice could grant out land to knights on like tenure, and they to ordinary freeholders on what was called socage tenure, i. e., a certain rent, either in com or kind. The baron would be bound to the king to flimish so many knights, and the knights to the barons to render their military service, but the socage tenants would be bound to their lords to render their own proper services. ^e) This is hardly accurate, and seems to confound vsusfruetuB with pro- prietas. Dominium directum meant rather political rule; dominium utile meant absolute property. id) Sed quaere, mde guprd. e) But the author had failed to observe, that as to reliefs, they were re- quired to be rendered before the Conquest, on the death of any noble or knight, and were military in their nature, consisting of arms, and horses, and trappings. (This appears from the laws of Canute, c. 71.) . This implied an obligation to be ready to render military service when required for the defence of the realm, and this was all that was really involved in the feudal system, so far as it was lawful or legitimate. This appears plainly from a Eassage in the Leges Henrid Primi, c. li v., De relevacionibus. This, in the rst place, is taken entirely from the Laws of Canute, c. 72, which, as already shown, disposes entirely of the idea of any sudden change of tenures at the Conquest. In the laws of Canute and of Henry alike, the reliefs are de- scribed as those of earls — called comites in the Latin version of Henry — and king's thanes, or barons, who, as Lord Coke says, whether king's thanes —i. e., those who held lands of the king — or " thaines mediocres," held as CHAP. II. j NATURE OP TENURES. 243 to which his ancestor was liable, and which was the only return that could be made in consideration of his enjoying the property, it seemed reasonable that the king should judge whether he was capable, by his years, of perform- ing the services : if not, that he, as lord, should have the custody of the land during the infancy ; by the produce of which he might provide himself with a suflacient substi- tute, and in the meantime have the care or wardship of the infant's person, in order to educate him in a manner be- coming the character he was to support as his tenant. If the ward was a female, it seemed equally material to the lord, that she should connect herself in marriage with a proper person ; so that the disposal of her in marriage was also thought naturally to belong to the lord. The obligation between lord and tenant so united their interests, that the tenant was likewise bound to afford aid to his lord, by payment of money on certain emergent calls respecting himself or his family; namely, when he married his daughter, when he made his son a knight, or when he was taken a prisoner. Besides these incidents, it was held that land should knights, by the obligation to military service when required for the defence of the realm. No doubt, after the Conquest, the tenure by military service was developed, and indeed abused and perverted, into the system of exac- tion known as the " feudal system ; " and this indeed appears from the laws of Henry, for the charter states, " Si quis baronum meorum sive aliorum qui de me tenent, mortuus fuerit, heres suus non redimet terram Buam sicut faciebat tempore fratris mei, sed legitima et justa relevadone releeabit earn. Similiter et homines baronum meorum, legitima et justa relevacione releva- bunt terras ausus de dominis suis." So as to marriages, " Et si quis baronum vel hominum meorum fllium suam nubitum tradere voluerit, sive sororem, mecum inde loquitur. Sed neque ego aliquid de suo pro hac licencia acci- piam, neque ei defendam quin eam det, excepto si eam jungere vellet inimico meo. Et si mortuo barone vel alio homine meo, filia hseres remanserit, illam dabo consilio baronum meorum cum terra sua. Et si, mortuo marito, uxor ejus remanserit, et sine liberis fuerit, dotem et maritagionem suam habebit, et etiam nou dabo marito, nisi secundum velle suum. Si vero uxor cum liberis remanserit, et terrae et llberorum cnstos erit, sive uxor sive alius pro- pinquorum, qui Justus esse debebit; et precipio ut barones mei similater se contineant erga filios, vel filias, vel uxores hominum suorum" {Leges Hen. Pri., c. 1. ; A.-S. Laws, c. i., p. 499). This shows that the pretended inci- dents of the feudal system, beyond reliefs (which were rendered before the Ckjnquest), were mere abuses and usurpations, and recognized as such, so soon after the Conquest as the reign of Henry I. It also shows that there could not have been any such general alteration in the tenures of the king- dom as the author appears to have supposed, and he himself elsewhere in a note contests the notion that the feudal system was in this country established so fully as it existed abroad. Videpost, p. 259, in notis. 244 WILLIAM I. TO HENKT II. [CHAP. II. escheat, or fall back into the hands of the lord, for. want of heirs of the tenant, or for the commission of certain crimes ; and, in cases of treason, that it should come into the hands of the king by forfeiture. These were the fruits and consequences the king ex- pected to receive from the doctrine of tenure ; these he demanded as lord from his tenants ; and they, in the char- acter of lords, Exacted many of the like kind from theirs. In this manner was the feudal bond riveted on the landed property of the whole kingdom. Thus far of the nature of tenures in general : but tenure Different kinds was of two klnds : tenure by knight-service, and of tenure. teuure by soco^g. Tenure by knight-service was, in its institution, purely military, and the genuine effect of the feudal establishment in England ; the services were occasional, though not altogether uncertain, each service being confined to forty days.^ This tenure was subject to rmef, aid, escheat, wardship, and marriage. Socage was a tenure by any conventional service not military (a). Knight-service contained in it two species of military ten- ure : grand and petit serjeanty (b). Tinder tenure in socage may be ranked two species : burgage, and even gavelkind, though the latter has many qualities different from com- mon socage. Besides these, there was a tenure called (o) Any certain service, so that the service be not knight-service, as rent {Idmeton, c. v.). It is said that the reason why such tenure is so called is because socagium est sermtiam socicB, and " soca idem est quod caruca," a soke or plough. " In ancient times a great part of the tenants, who held of their lords by socage, ought to come with their ploughs to plough and sow the demesnes of their lords. And for that such works were done for the suste- nance of their lords, they were quit against the lord of all manner of service. And because the services were done with their ploughs, the tenure was called tenure in socage. And afterwards these services were changed into annual rents, but the name remains. And if a man holdeth of his lord by escuage certain, it is tenure in socage, and not knights-service. But where the sum the tenant shall pay for escuage is uncertain, it is knight-service (Ibid.). And where the tenant is to pay a certain sum for castle-guard, it is socage tenure ; but if he has to do castle-guard, it is knight-service." (Ibid.) (6) This is an error. Tenure by petit serjeanty was where a man held of the king to yield to him yearly a bow, or a sword, or a dagger, or a lance, or a pair of gloves, or spears, or an arrow, or to do such several things belong- ing to war ; and such service is socage in effect ; because the tenant ought not to go,_ nor to do anything in person, touching war, but only to render certain things. And both species of seqeanty were only tenures of the king (Littleton, o. ix.), but knight-service might be of any lord (c. iv.). Again, grand seijeanty for the most part was for service within the realm ; knight- service might be out of the realm (Ibid., c. viii.). ' Wright, Ten., 140. CHAP. II.] NATURE OI' TENURES. 245 frankalmagne (a). This was the tenure by which religious houses and religious persons held their lands ; and was so called, because lands became thereby exempt from all ser- vice except that of prayer and religious duties. Such persons were also said to hold in libera eleemosynd, or in free alms. Thus far of free tenure, by which the liberi homines of the kingdom became either tenants by knight-service, or in common socage. It is thought that the condition of the lower order of ceorls, who among the Saxons were in a state of bondage (6), received an improvement under this new polity. Nothing is more likely ' (e) than that the M^ormans, who were strangers to any other than a feudal state, should, to a certain degree, enfranchise such of those wretched persons as came into their power, by per- mitting them to do fealty for the scanty subsistence which they were allowed to raise on their precarious possessions, and that they were permitted to retain their possession on performing the ancient services (d). But, by doing fealty, (a) Here again the author confounds two different distinctions. Tenure in burgage could not be tenure in socage, which was plough-service, but it was of its nature, being certain ; and as socage often was commuted for rent, for it was tenure in an ancient borough, under a rent to the Icing. Gavelkind was a customary right of descent, under which all the sons took, and related to the inheritable quality, not to the mode of tenure, or nature of services, though no doubt, for an obvious reason, gavelkind would always be socage. ib) This is an error. Vide ante. The ceorls were not slaves, c) Nothing in the world less likely than that the conquerors should seek to do good to any class; on the contrary, Bracton tells us that in many cases they dispossessed the former owners, and made them hold their lands in vil- lenage (lib. i., c. 11, f. 7). So that what the Normans did was not to raise villeins into free tenants, but to make freeholders into villeins. And so the Mirror says (c. 1). There can be no doubt, however, that the natural effect of this was that there were a superior order of tenants in villenage, who, as Bracton says, although they held in villenage, were not villeins, and that as time went on they by degrees got their lands emancipated (they themselves becoming &eemen], the tenure being turned into freehold by its being ren- dered certain and inheritable. Bracton indeed distinctly says the service was certain (being plough-service) ; and the Mirror says that if the lord re- ceived homage from the tenant, he became a freeholder. Vide Vide Leg. Ang.-Sax., p. 332, 333. CHAP. II.] JUSTICES ITINERANT. 275 right and justice which belonged to the king and his crown, whether commenced by the king's writ or that of his vicegerent, where the property in question was not more than half a knight's fee ; unless the matter was of such importance that it could not be determined but be- fore the king ; or the justices themselves, on account of any difficulty therein, chose to refer it to the king, or, in the Mirror (c. 4, s. 21), mention is made of the course taken by Martin de Pateshall, a very able justice itinerant of those days, whose writings as usual are also repeatedly reported in Bracton. These are the earliest law reports in our language. It is to be observed that these circuits of the itinerant justices are not to be confounded with the circuits of the judges of the superior courts afterwards held; for these itinerant justices were, as will have been seen, of an inferior grade to the judges of the king's superior court; whereas, in later times, the judges themselves went circuit, as they still do now. The itinerant justices were a far more numerous body, but they formed a fine judicial school from whence the king's superior courts were constantly recruited; and, on the other hand, sometimes the judges of the superior courts may have gone the itineraries. These justices itinerary, who were sometimes the sheriflFs, were a kind of intermediate grade or order between the sheriff and the superior courts. The sheriff himself was often made a king's justice by the king's writ, for the purpose of trying a particular case touching the freehold, or of greater amount than his ordinary jurisdiction ; and then, as Bracton says, he acted as justice of the king. The itinerant justices marked the next step in the improvement of our judicature. And it is extremely interesting to observe by what slow and gradual steps the improvement was effected, which, it will be seen, was a necessary step in the improvement of the lam. A study of their decisions, as stated by Bracton in his great TreatUe, will illustrate this ; and the very fact that this great lawyer should so have cited them, strongly shows the influence and effect they had in improving the law. He cites them throughout his work, and almost on every page one or more such citations occur. They are cited by the county, and the year of the king, with the name of the case, " Ut probatum in rotulo de termino Pasehse anno regis Henrici decimo sexto, in comitatu Oxoni» de Fray Pinchard," etc. (fol. 367). He often cites the celebrated Martin de Pateshall, mentioned in the Mirror, and cites a case " de ultimo itinere, Martin de Pateshall, in comitatu suff." (f. 32). The circuits of the itinerant justices are set down iu Hoveden, p. 337, and are quoted in Hale's History of the Common Law, p. 143. Bracton, in his book De Corona, treats largely of the authority of the justices itinerant, and sets forth the terms of their commission (lib. iii., c. 17, fol. 115), which extended to all pleas of the crown and all its franchises, etc. Upoti reading the coqmissibn, it is suggested that the senior justice shall deliver a kind of charge to the men of the county (the grand jury), as Martin de Pateshall was used to do, " Si justitiarus placuerit, quidam major eorum et discretior public^ coram omnibus proponat quse sit causa adventus eorum, et (juse sit utilitas itinerationis et quae commoditas si pax obsevetur et proponi solent verba ista per Martin de Pateshall. In pninis, de pace domini regis et jus- titia ejus violata per murdritores et robbatores, et burglatores," etc. {Ibid.) They were to try with juries, for it is said, "Etiam possunt juratores xii de alio itinere, argui de perjurio, ut in anno regis Hen. nono, de quodam Hen- rico Bomband in" comitatu Hertford " (Ibid., f. 117) j and though flight af- forded a presumption of guUt, yet evidence was heard {Ibid., fol. 128). 276 WILLIAM I. TO HENRY 11. [CHAP. II. his absence, to those who were acting for hina. They were commanded to make inquisition concerning rob- bers, and other offenders, in the counties through which they went ; they were to take care of the profits of the crown, in its landed estates and feudal rights of various sorts, as escheats, wardships, and the like ; they were to inquire into castle-guards, and send the king information from what persons they were due, in what places, and to what amount ; they were to see that the castles which the great council had advised the king to destroy were demolished, under pain of being themselves prosecuted in the king's court ; they were to inquire what persons were gone out of the realm, that if they did not return by a certain day to take their trial in the king's court, they might be outlawed ; they were to receive, within a certain limited term, from all who would stay in the kingdom, of every rank and condition (not even except- ing those who held by tenures of villenage), oaths of fealty to the king, which if any man refused to make, they were to cause him to be apprehended as the king's enemy •„ and, moreover, they were to oblige all persons from whom homage was owing, and who had not yet done it, to do it to the king within a certain time, which the justices themselves were to fix. The principal part of these injunctions was given in consequence of the late civil war ; but some Constitutions made at Clarendon, relating both to civil and criminal justice, were renewed at this same council at E"orthamp- ton; and the justices itinerant then appointed were sworn to observe and execute those regulations in every point (a). Amongst other provisions of this statute, the justices were to cause recognition to be made whether a man died seized of land concerning which any doubt had arisen ; (a) It is to be obaerved that it appears from the Mirror, and from some passages in the chronicles, that there had been an ancient usage, even before the Conquest, for the kings, at first in person, and afterwards by their justi- ciaries, to go once in seven years into the counties, to observe and enforce the course of justice, and these circuits were called "eyres," or "iters," for which the more frequent itineraries of justices were substituted. These justices, however, had other things to do beside administer justice. They had also to look after fines and amercements and forfeitures for the crown, and there is reason to believe that this, rather than a zeal for justice, caused them to be sent on these missions, where they became so intolerable in their exac- tions that the people petitioned that they should not be sent so often ; but only, as the "justices in eyre" had been — once in seven years, CHAP. II.] THE JUSTICES OF THE BENCH. 277 and they were likewise to make recognition de novis dis- seisinis} This was the whole authority given to the justices itinerant by the statute of K'orthampton ; how the ob- jects of their jurisdiction were multiplied will presently appear, when we come to mention those schedules, called eapitula itineris, which used to be delivered to the justices for their direction. In executing the king's commission, the plan of this institution was improved still further, for, that justice might not always be delayed in criminal cases till the justices itinerant came into the country, commissions used to be occasionally issued, empowering the justices therein named to make a delivery, of the gaol specified in the commission ; that is, they were by due legal examination, to determine the fate of all the pris- oners, ordering a discharge of such who were acquitted upon trial, and continuing in further custody, or other- wise directing punishments to be inflicted on those who should have been convicted of any crime. But when these commissions were first brought into use, it does not appear. It was some time after the appointment of justices itin- erant that a court made its appearance under the name of bancum or hmch, as distinguished from the ewria regis (a). This court, like that of the jus- tices in eyre, was probably erected in aid of the curia regis; and it is observable that the (niria regis ceased to entertain common pleas in its ordinary course much about the same time when the haruMm, or bench, is supposed to have been erected. It is not likely this alteration was (a) It is conceived that this is erroneous, and that the phrase justices of the bench meant justices of the ewria regis (i. e., as is believed, the exchequer), to distinguish them from the justices iiinerant, who were an inferior grade or order, and were not, moreover, permanent judges, but were only appointed for particular itinera or circuits, and were not always the regular judges, nor indeed at first were any so. Hence naturally the regular judges of the king's supreme court were called justices of the bench. In the Abbrematio Plaeilo- rum in anno 2 Johannis, is a case in which the Abbot of Leicester, being sued before the justices of the bench, pleaded a charter of exemption from suit, except before the king or his chief justiciary ; and it was held that pleas heard before the justices of the bench were in law heard before the king. It was otherwise of justices itinerant, and it was to them the charter applied. Common pleas were then heard before the curia regis, i.e., the exchequer; numerous records attest this, anterior to the time of the Great Charter. 1 Litt. Hen. II., vol. iv., 275, 406. 24 278 WILLIAM I. TO HENRY H. [CHAP. n. made uno ictu, but by degrees. It had evidently been the usage to hold pleas in the bank before the charter of King John, as justitiarii nosiri de banco are therein mentioned ; so that the clause declaring that communiaplacitanon sequantur curiam nostram, sed teneaniur in certo loco, can no otherwise be understood, than as contributing to settle and confirm what had been begun before. In truth, the existence of the bench, and of the justitiarii de banco, appears from rec- ords in the reign of Richard I. At that period certain descriptions came in use which were not before known, and which plainly and clearly mark the existence of such a court; such as, curia regis apud Westmonasterium, justiti- arii regis apud Westmonasterium, or de Westnonusterio, ban- cum, and justitiarii de banco ;^ from all of which it may be collected, that common pleas were at this time moving off from the euria regis, and were frequently determined in a certain place, whose style was meant to be described in those expressions. It has been observed,^ that after the erection of the bank, the style of the superior court began to alter; and the proceedings there were frequently said to be coram rege, or coram domino rege; and in subsequent times the court was styled curia regis coram ipso rege, or coram nobis, or coram domino rege ubicunque fuerit, etc., as at this day.' However, it was still called aula regis, curia regis, curia nostra, curia magna. As the exchequer was a member of the curia regis, and a place for determining the same sort of common pleas as were usually brought in the curia regis, the separation of such pleas from that court did considerably affect the ex- chequer. The clause in King John's charter equally con- cerned both courts : curiam nostram meant the exchequer, as well as the court properly so called. Thus have we seen this grand institution of the l*for- mans dilating its influence over the whole kingdom, en- croaching on the ancient local tribunals of the people, by drawing into its sphere all descriptions of causes and questions ; till having- exerted, as it were, its last effort, in sending forth the new establishments of justices itine- rant and justices of the bench, it disappeared by degrees from the observation of men, and almost from the records of antiquity, having deposited in its retirement the three » Mad., Ex., 539, 540. " Ibid., 543. » Ibid., 544. CHAP. II.] THE CHANCERY. 279 courts of common law now seen in "Westminster Hall : the court coram ipso rege, since called the king's bench ; the bench, now called the common pleas ; and the modern court of exchequer. The court of chancery probably acquired a separate ex- istence much about the same time. The busi- ness of the chancellor was to make out writs '"'^'^'^'^^■ that concerned proceedings pending in the curia regis and the exchequer (a). He used to seal and supervise the king's charters, and, whenever there arose a debate con- cerning the efficacy or policy of royal grants, it was to his judgment and discretion that a decision upon them was referred. He used to sit with the chief justiciary and other barons in the curia regis and at the exchequer, in matters of ordinary judicature and on questions of reve- nue ; though it was to the latter court he seemed mostly allied in his judicial capacity.^ Mr. Madox, observing that the rolls of chancery begin in the reigns of Richard and John to be distinct from those of the exchequer (a method of arrangement not observed before),^ is inclined (a) This was the original province of the chancellor, and the chancery was an office ages before it was a court, though the chancellor was a member of the " curia regis." The chancery was officina brmum, and in a chapter in the Mirror of Justice, headed "Del Eoy Alfred," is so described: "Ordeine fiiist que chescun eyt del chancery I'Eoy brief remedial a sa pleint, sans nul difficulty, et que chescun nst I'process de la jour de son plea sans le seale I'Judge ou de la partie." And then, after mentioning the exchequer as the " Court le Koy : " " Ordeine ftiit que le court le Eoy soit overt a touts plain- tiffs per que ils ussent sans delay brie6 remedials aussi lieu sur le Eoy come sur autre del people d'chescun injury." And a specimen of such a writ is given : " Ordeine fuit que chescun plaintiff ust brief remedial a son Viscount ou al Seignior del fee en cest forme. Questus est nobis quod D., etc., et ideo tibi (vices nostras in hac parte committentes) precipimus quod causam illam audias et legitimo fine decidas." Now the antiquity of this chapter of the Mirror is manifest ; first, from the very form of this writ, which commands the sheriff himself to decide the cause, and does not mention any writ to bring the case into the king's court, as in later times was the course, but is obviously only designed to compel the sheriff to hear the case in the county court ; so that it is obvious that, at that time, the " curia regis" did not itself, in the first instance, hear common pleas between party and party ; the old Saxon system of local jurisdiction still continued. Next, the antiquity of the passage appears from its mentioning the exchequer as the only " curia regis " then known, so that the passage must have been written before tlje Magna Charta. Bracton, writing after the charter, speaks of the sheriff as deciding, under a writ like the above, called a Justicies, causes he could not, ct officio, decide, which marks a great change, for it is manifest from the chapter in the Mirror that there was originally no other court but that of the county, for common suits, in the first instance. > Mad., Ex., 131. ' Ibid., 132. 280 WILLIAM I. TO HENRY II. [CHAP. H. to think that the chancellor began about that time to act separately from the exchequer. In this conjecture he strengthens himself by a corroborating fact, as he imag- ines. In the absence of King Richard out of the realm, William de Longchamp, chief justiciary and chancellor, was removed from the former office by the intrigues and management of John earl of Morton, the king's brother. After this, it is thought, he inight discontinue his attend- ance at the exchequer ; and the business of the chancery, which before used to be done there, might be transferred by him to another place, and put into a new method ; in which it might be judged proper and convenient to con- tinue it ever after, separate and independent. If this conjecture may be admitted, concerning an es- tablishment beyond the reach of historic evidence, the court of chancery was erected into a distinct court nearly at the same time when the other three received their present form and jurisdiction ; which will go a great way towards justifying one part of the maxim of the common lawyers, that the four courts of "Westminster Hall are all of equal antiquity ; though it refutes the other part of it, that they have been the same as they now are from time immemorial. The chancery was the officina justiHcB, the manufactory, if it may be so called, of justice, where original writs were framed and sealed, and whither suitors were obliged to resort to purchase them in order to commence actions, and so obtain legal redress. For this purpose the chan- cery was open all the year ; writs issued from thence at all times, and the fountain of justice was always accessible to the king's subjects. The manner in which the busi- ness there was conducted seems to have been this: the party complaining to the justices of the king's court for relief, used to be referred to the chancellor (in person, perhaps, originally), and related to him the nature of his injury, and prayed some method of redress. IJpon this, the chancellor framed a writ applicable to the complain- ant's case, and conceived so, as to obtain him the specific redress he wanted. "When this had been long the prac- tice, such a variety of forms had been devised, that there seldom arose a case in which it was required to exercise much judgment ; the old forms were adhered to, and be- came precedents of established authority in the chancel- CHAP. II.] THE CHANCERY. 281 lor's office. After this, the making of writs grew to be a matter of course ; and the business there increasing, it was at length confided to the chancellor's clerks, called eleriei eanceUarice, and since curstores canceUarice. A strict observance of the old forms had rendered them so sacred, that at length any alteration of them was esteemed an al- teration of the law, and therefore could not be done but by the great council. It became not unusual in those times for a plaintiff, when no writ could be found in chancery that suited his case, to apply to parliament for a new one. Thus far the chancellor seemed to act as a kind of offi- cer of justice, ministering to the judicial authority of the king's courts. The chancellor's character continued the same, after this separation, as it had been before, without any present increase or diminution. In the reign of Henry II. he was called the second person in the govern- ment, by whose advice and direction all things were or- dered. He had the keeping of the king's seal ; and, be- side the sealing of writs, sealed all charters, treaties, and public instruments. He had the conduct of foreign af- fairs, and seems to have acted in that department which is now filled by the secretaries of state. He was chief of the king's chaplains, and presided over his chapel. His rank in the council was high; but the, great justiciary had precedence of him.' He is said to have had the pre- sentation to all the king's churches, and the visitation of all royal foundations, with the custody of the temporal- ties of bishops ; but those writers who have taken upon them to speak fully of the office of chancellor, say nothing of any judicial authority exercised by him at this time. In the curia regis he was rather an officer than judge; but as he assisted there, so he was sometimes associated with the justices in eyre.* There is no notice, even in writers of a later date than this, neither in Bracton nor Fleta, that the chancellor, after he sat separate from the exchequer, exercised any judicial authority, or that the chancery was properly a cmirt; but it is always spoken of as an office merely, bearing a certain relation to the administration of justice, in the making and sealing of writs. Notwithstanding the hereditary lords absented them- selves so entirely from the curia regis, they still jadicatoe of retained a n inherent right of j udicature, which '"^ °°''°'"'- 1 Mad., Ex., 42, 43 ; Litt. Hen. II., vol. ii., 312. » Mad., Ex., 42, 24* 282 WILLIAM I. TO HENRY II. [CHAP. II. resided in them as constituent members of the council of the king and kingdom. "When the curia regis was divided, and the departments of ordinary judicature were branched out in the manner we have just seen, the peculiar charac- ter of this_ council, now separated and retired within it- self, became more distinguishable. This council was of two kinds and capacities : in one, it was the national assembly, usually called magnum con- cilium, or commune concilium regni (a) ; in the other, it was simply the council, and consisted of certain persons se- lected from that body, together with the great officers of state, the justices, and others whom the king pleased to take into a participation of his secret measures, as persons by whose advice he thought he should be best assisted in affairs of importance. This last assembly of persons, as they were a branch of the other, d.nd had the king at their head, were considered as retaining some of the powers exercised by the whole council. As they both retained the same appellation, and the king presided in both, there was no difference in the style of them as courts ; they were each coram, rege in concilio, or coram ipso rege in concilio, till the reign of Edward I., when the term parliaMent was first applied to the national council ; and then the former«was styled coram rege in parliamento. The judicial authority of the barons, which still resided with them after the dissolution of the curia regis, was this: they were the court of last resort in all cases of error ; they explained doubtful points of law, and inter- preted their own acts; for which purpose the justices used commonly to refer to the great council matters of difficulty depending before them in- the courts below. They heard causes commenced originally there, and made awards thereupon ; and they tried criminal accusations brought against their own members. (a) All that relates to the subject of concilio regni, or concilio regis, or cwria regis, which in early times very likely meant very much the same thing, is involved in obscurity. The author, it will be observed, cites no contemporary authority, and it is believed that all that exists has already been cited in the notes, except, perhaps, a passage in Glanville, in which, speaking of the as- size or trial of real actions, he says, "Est autem assisa regale, quoddam beneflcium dementia principis, de concilio procerum populis indultum;" to which, perhaps, it may be added that several passages in the Mirror speak of ordinances of kings on the subject of the law, or the administration of justices, which no doubt meant ordinances made by the king, with the coun- sel of his chief officers of state, the principal barons, etc. CHAP. II.] OF THE ECCLESIASTICAL COURTS. 283 The council, properly so called, seems to have had a more ordinary and more comprehensive jurisdiction than the commune conciMum ; which it was enabled to exercise more frequently, as it might be, and was continually summoned ; while the other was called only on emergen- cies. In the court held coram rege in eoncUio, there seems to have resided a certain supreme administration of jus- tice, in respect of all matters which were not cognizable in the courts below: this jurisdiction was both civil and criminal. They entertained inquiries concerning property for which the ordinary course of common-law proceeding had provided no redress, and used to decide ex aequo et bono, upon principles of equity and general law. All offences of a very exorbitant kind were proper objects of their criminal animadversion. If the persons who had taken part in any public disorder were of a rank or descrip- tion not to be made amenable to the usual process, or the occasion called for something more exemplary than the animadversion which could be made by ordinary justices, these were reasons for bringing inquiries before the coun- cil : in these and some other instances, as well touching its civil as criminal jurisdiction, it acted only in concur- rence with, and in aid of, the courts below. Thus was the administration of justice still kept, as it were, in the hands of the king, who, notwithstanding the dissolution of his great court, where he presided, was still, in construction of law, supposed to be present in all those which were derived out of it. The style of the great council was coram rege in concilio, as was that of his ordinary council for advice. The chancery, when it afterwards became a court, was coram rege in canceHarid ; and the principal new court which had sprung out of the curia regis, was coram ipso rege, and coram rege ubicunque Juerit in Anglid. The separation of ecclesiastical causes from civil, was not the least remarkable part of the revolution of the spiritual our laws underwent at the Conquest {a). The °°""- (o) There is no subject upon which the author fell into greater error than this. It was a complete fallacy to suppose that the separation of ecclesi- astical causes from civil first took place on the occasion of the decree here adverted to, which merely enforced it. The distinction between ecclesiastical and secular causes is drawn throughout the Saxon laws with great acuteness, as has been shown. Several of the kings were so careful to draw it, that they separated their ordinances ecclesiastical, made either in synods or coun- 284 WILLIAM I. TO HENRY II. [CHAP. II. joint jurisdiction exercised in the Saxon times by the bishop and sheriff was dissolved, as has been before men- tioned, by an ordinance of William ; and the bishop was thenceforth to hold his court separate from that of the sheriff.' oils, from their secular laws, made in the council. (See the laws of Edgar, Ethelred, Athelstan, and Canute, Ang.-Sax. Laws, vol. i.). And these again were distinguished from the canons and constitutions of the prelates, made of their own authority in ecclesiastical synods, which form quite a distinct collection {Ang.-Sase. Laws, v. ii.). And it was likewise distinctly recognized that the administration of the ecclesiastical law belonged to the bishops, though it might be enforced by the secular law. Thus Edward lays down in his ecclesiastical laws that men in holy orders who were immoral were worthy of what the canon had ordained — that is, to forfeit their possessions (A.-8. L., V. i., p. 245). So, if any one committed homicide, he was not to come into the kin^s presence until he had done penance, as the bishop might teach (IjOws Ed. Ecc., 3 ; Ibid., p. 257) ; and then, in the secular laws, this is enforced further {Ibid., p. 249). So the laws of Ethelred speak of fines as secular correction for divine purposes {Ibid., p. 319). So the ecclesiastical laws of Canute lay down that men of every order submit each to the law which is becoming to him {Ibid., p. 315) ; and then the secular law says that if a man in holy orders commit a crime worthy of death, let him be seized and held to the bishop's doom {Ibid., 403). And so Alfred hanged a judge who judged a clerk to death over whom he had not cognizance (Mirror, c. v., 213-235). So the distinction was drawn clearly in the laws of the Confessor, collected by the Conqueror: "A sancta ecclesia, per (juam rex et regnum Bolide subsistere haberent, pacem et libertatem conclonati sunt dicentes " (c. i.), " Et si aliquis excommunicatus ad emendacium, ad episcopum venerit, abso- lutus eundo et redeundo pacem, Dei et Sanctee ecclesise habeat. Et si pro justicia episcopi emendare noluerit, ostendat regi, ut rex constringat foris- factorem, ut emendet cui forisfecit, et episcopi et sibi" (c. ii.). "Quicunqne de ecclesia tenuerit, vel in feudo ecclesise manserit, alicubi extra curiam ec- clesiasticam non placitabit ; si in aliquo forisfactum habuerit, donee, quod absit, in curia ecclesiastica de recto dencerit" (c. iv.). " Si quis sanctae eccle- sise j)acem fregerit, episcoporum turn est justicia" [ibid., p. 444). The dis- tinction, then, was well established, and was not now first drawn, but only enforced ; and enforced, not by taking the bishop from the county court, but by taking the ecclesiastical causes from that court, and remitting them to the court of the bishop. The edict, therefore, was in aid of episcopal jurisdic- tion, and merely enforced the existing law. It did not purport to be, nor was it, a new law ; it was a charter declaratory of and enforcing the estab- lished law of the land, that spiritual matters were for the bishop. It recited that it was issued with the consent and counsel of the prelates, and it con- cludes thus : " Hoc etiam interdico, ut aliquis laicns homo, de legibus quse ad episcopum pertinent se intromittant, nee aliquis laicus homo alium hom- inem sine justicia episcopi ad judicium adducat" {A.-8. L., v. i., p. 496). '' The langu^e of the charter," says Sir J. Mackintosh, "and proba:bly its immediate efiect, was favorable to clerical independence" {Hist. Eng., v. i., p. 113). It is true that the acute historian — for once in error, and not aware of subsequent laws recognizing and even enforcing the attendance of the prel- ates in the county courts — went on to observe that the effect was to withdraw them from the courts ; a manifest mistake. The bishops continued to sit in the court {Leges Henrici Primi, c. vii., 11). 1 WUk., Leg. Sax., 292; Seld., Tithes. CHAP. II.] ECCLESIASTICAL LAW. 285 This ordinance of William is comprised in a charter relating to the bishopric of Lincoln ; and therein he com- manded " that no bishop or archdeacon should thencefor- ward hold plea de legibus episcopalibus in the hundred court, nor submit to the judgment of secular persons any cause which related to the cure of souls ; but that whoever was proceeded against for any cause or offence according to the episcopal law, should resort to some place which the bishop should appoint, and there answer to the charge, and do what was right ^ towards God and the bishop, not according to the law used in the hundred, but according to the canons and the episcopal law." In support of the bishop's jurisdiction, it was moreover ordained, "that should any one, after three notices, refuse to obey the process of that court, and make submission, he should be excommunicated ; and, if need were, the assistance of the king or the sheriff might be called in. The king, more- over, strictly charged and commanded, that no sheriff, prcqtositus sive minister regis, nor any layman whatsoever, should intromit in any matter of judicature that be- longed to the bishop."* This is the whole of that famous charter. When the spiritual court was once divided from the temporal, different principles and maxims began to pre- vail in that tribunal. The bishop thought it noways un- suitable, that subjects of a different nature from those concerning which the temporal courts decided, should be adjudged by different laws ; and, being now out of the influence and immediate superintendence of the temporal judges, he was very successful in introducing, applying, and gaining prescription for the favorite system of pon- tifical law, to which every churchman, from education and habit, had a strong partiality. The body of canon law soon exceeded the bounds which a concern for the gov- ernment of the church would naturally affix to it. In- stead of confining their regulations to sacred things, the canonists laid down rules for the ordering of all matters of a temporal nature, whether civil or criminal (a). The (a) Only in faro amseientiiB, and as part of the great moral duty of justice ; in order to ascertain breaclies of it, with a view to spiritual correction. In times when there was really no law, this was very necessary; and the Boman ecclesiastics founded upon the Boman law a system of Christian jurispru- 1 Faeiat rectum. » Wilk., Leg. Ang.-Sax., pp. 292, 293. 286 WILLIAM I. TO HENRY II. [CHAP. II. buying and selling of land, leasing, mort^ging, contracts, the descent of inheritance ; the prosecution and punish- dence of great use and value, which had, as already has been shown, had a great influence on the formation of our own law. Moreover, it should be observed that the law of England fully recognized the canon law for the purposes of spiritual correction, and, indeed, to a great extent enforced it. This has been already shown in the Saxon laws, being confirmed by the Conqueror, and it will have been seen that these laws repeatedly recognized the canon law and the right of the bishops to apply it in the exercise of their spiritual authority. So the law of the Conqueror, already alluded to, distinctly recognized this spiritual jurisdiction and canon law, for it directed — " ut nuUus episcopus, de legibus episcopalibus, amplius in hundreto placita teneant, nee causam quse ad regimen animamm pertinet, ad judicium secu- larium hominem adueant: sea quicnnque secundum episcopales leges, de quacunque causa vel culpa, interpellatus fuerit, ad locum quern ad hoc episcopus elegerit veniat, ibique de causa vel culpa sua respondeat : et non secundum hundret, sed secundum canones et episcopalei leges, rectum Deo et episcopo suo faciat." So that the very object of the separation of the ecclesiastical orders from the secular, was to enable the ecclesiasticar court to administer a law different from the secular law ; and having its own sen- tences and penalties ; those, of course, consisting only of the deprivation of spiritual privileges, so far as the church was concerned ; and hence it was that the same law went on to provide, that if a party set at nought the episcopal sentence, he might be excommunicated, and that then to vindicate this sentence the temporal power might be called in — " et si opus fuerit ad hoc vindicandum, fortitudo et justicia regis vel vicecomitis adhibeatur." This, which was only in accordance with the Saxon laws, collected by the Conqueror (see the Jjcms of the Conqueror, c. vi.), was going further than the canon laws, which only of themselves deal with spiritual privileges, and can only enforce the sentence by deprivation of those privileges. But as the temporal law upheld the ecclesiastical courts in the exercise of their juris- diction, even where the law they administered was different from the secular law on the subject, it could be no ground of objection, as the author appears here to imply, that their law was different. It was necessarily so, because it was in foro amscientim: and every one knows that, quite apart from peculiar religious obligations, the measure of justice prescribed by conscience, is often larger than the measure prescribed by law. In so rax as great offences against national law were concerned, as murder or robbery, there might be no difference between the spiritual law and the secular law, though as to the mode of trial there would be great difference ; and men of any education, or acquaintance with the principles of intelligent procedure, could hardly do otherwise than revolt at the absurdity of the ordeal, or the brutality of the trial by battle. And accordingly, in the Mirror, it is said — "that Christianity suffered not that men be by such wicked arts cleared, if one may otherwise avoid it" (c. iii., s. 23). And all through the Saxon laws it has been seen there was a gradual endeavor to get rid of the ordeal, by making it only the last resort, in failure of other modes of trial, and by the end of the reign of John it was obsolete. But it prevailed all through the reign of Henry II., and trial by battle prevailed much longer. And while the law was in this barbarous state, it is not to be wondered at that the ecclesiastics, while, on the one hand, it was their utmost endeavor to improve it, as to the laity, should, on the other hand, object to its application to the clergy. Hence, it has been seen, it was undoubted law under the Saxons that a " clerk " or ecclesiastic, was not liable to trial in the temporal courts ; and thus it is recorded, in the Mirror, that Alfred hanged a judge who had CHAP. II.] ECCLESIASTICAL LAW. 287 ment of murder, theft, receiving of thieves, frauds ; these, and many other objects of temporal judicature, are pro- vided for by the canon law; by which, and. which alone, it was meant the clergy should be governed as a distinct people from the laity. This scheme of distinct govern- ment was, perhaps, not without some example in the practice of the primitive times ; when it was recom- mended that Christian men should accommodate diflFer- ences among themselves, without bringing scandal on the church by exposing their quarrels to the view of tempo- ral judges. For this purpose, bishops had their episeo- porum eedid, or church-lawyers ; and, in after times, their officials or chancellors ; and when the empire had become Christian, the like practice continued, for similar reasons, with regard to the clergy (a). But this, which was in its design nothing more than a sort of compact between the individuals of a fraternity, was exalted into a claim of caused execution to be done upon a " clerk," because he had no power over him. While as to the property of the church, it was equally clear that the secular courts had no jurisdiction. Thus, one of the laws of the Confessor was — "quioumque de ecclesia tenuerit, vel in feudo ecclesise manserit, alicubi extra curiam ecclesiastioam non placitabit, si in aliquo forisfactnm habuerit, donee quod absit, in curia ecclesiastica de recto deficerit" (c. 4). In an age when the administration of justice was still so turbulent and barbarous, it was natural tliat the property and persons of ecclesiastics should be exempt from it. On the other hand, from a similar cause, some matters, even of a secular character, came under the cognizance of civil courts, as, for example, testaments. In an age when none but the ecclesias- tics could read or write, it was a matter of necessity that testaments should be entrusted to their care, and it was natural that the cognate subject of intestacy should also be confided to them, on account of their being ac- quainted with the rules of descent, and capable of making a proper division of the property among all the next of kin ; a matter sometimes of much nicety. These two heads, however, of civil jurisdiction, the exclusive juris- diction over ecclesia-stics, and the special jurisdiction over testaments and intestacy, were obviously exceptional ; and arose out of the barbarism of the age. Abstracting these, what remained of the ecclesiastical jurisdiction was entirely m foro eonscimtice, and a matter of mere spiritual censure or correc- tion. The sentences of the church could only be enforced by deprivation of spiritual privileges, and its highest punishment was excommunication, which was merely putting out of the communion and society of the church a person who set at nought its laws. The author observes truly,- a little further on, that the canon law first known in the country was formed by per- mission and under authority of the government, and seemed to be supported by arguments of expediency. The existence of a church called for a set of regulations for the direction and order of its various functions. This was admitted, and under that notion a body of canonical law had been sufiered to grow up for a long course of years. (a) That the Eoman law, and the Saxon law following it, went much fur- ther than this, has already been shown. 288 WILLIAM I. TO HENRY II. [CHAP. II. distinct jurisdiction, exclusive of the temporal courts, for all persons who came under the title of clerks, and for many objects, which were said to be of a spiritual nature (a). This attempt was favored by the separation now made, in this country, between the spiritual and temporal judges. (a) That this was the law of England has already been shown from the Saxon laws, and can be shown from Bracton, who, writing in the reign of Henry III., having lived and died after the reign of Henry II., laid it down distinctly, that even in cases of murder the king's justices had no power to try clerks, for that they could not be touched in life or limb until degraded, and that the king's courts could not degrade them, and therefore they could not try those whom they could not punish, wherefore they were to be deliv- ered to the bishop. " Et ideo si petatur, erit liberandus curiae Ctristianititis — quia non habebit Eex de eo prisonam quern judicare non potest, nee clericos degradare, quia non potest eos ad ordines promovere " (De Corona, lib. iii., c. ix., p. 124). And Bracton goes on to say that the punishment of degra- dation ought to suffice, as the man ought not to be punished twice for the same offence, the very point used by Archbishop A'Beeket in the case which gave rise to the claim of civil jurisdiction. " Cum autem clericus sic de crimine convictus degradetur — non sequitur alia poena pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro poena degradatio: quae est magna capitis diminutio," though he goes on to say that if the bishop would not put him to his purgation in the matter, etc. Bracton mentions that in a case of apostacy which had happened in the time of "the good Archbishop (Becket)," a priest who had apostatized and had been degraded, was burnt by the lay authorities. " Statim fuit igne traditus per manum laicalem." This was according to the ancient law of the coun- try, as shown by the Mirror of Justice, a striking illustration of the barbarism of the age. It was an age, however, in which, as also appears by the Mirror, men often burnt others to death, and, literally, " put them into the fire," as the book says, " for hatred and revenge," (c. ii., p. 8), so that there was a distinct head of the criminal law about " burners," — those who burn houses or men for hatred and revenge. "And if any one put a man into the fire," etc. In an age in which men burnt each other alive for revenge, they were not likely to scruple at doing it by way of punishment. The criminal code of the Saxons and Normans was dreadfully cruel ; mutilation was ordained by Canute and the Conqueror, and enacted by Henry II. with peculiar cruelty, men's feet being cvt off, and as apostates were burnt, poisoners were boiled. It seems scarcely credible, but is the fact, that the punishment of burning women for murdering their husbands was legal, down to the end of the last century ; so difficult is it to eradicate customs which have once got established in the institutions of a country. The criminal procedure of that age was, moreover, as odious and barbarous as the civil. The absurd ordeal was the resort of ignorance in quest of truth, and although, as Lord Hale says, " by means of the persuasions of the clergy, it died out in the reign of John, it was used all through the reign of Henry II. and his sons." It is necessary to understand this, in order to enter into the reasons which induced the Saxon kings to exempt clerics from their barbarous code and still more barbarous trial, and to secure them an ecclesiastical tribunal, which followed a more intelligent procedure and adopted more merciful punishments. It need hardly be added that the law as laid down by Bracton, did not apply to subsequent offences, committed after degradation. CHAP. II.] THE CIVIL AND CANON LAW. 289 In the gradual increase of this clerical judicature, sepa- rate from the temporal courts, we see the means by which the ecclesiastics, in after times, were enabled to perfect their scheme of independent sovereignty, in the midst of secular dominion ; whereby they assumed powers danger- ous to the crown and the political freedom of the state. The increase of the clergy in power and consequence was owing to the influence of the civil and canon law. With these instruments they ventured to encounter the established authority of the municipal law, whose dictates were so opposite to their grand schemes of ecclesiastical sovereignty. - Such an entire destruction had been made of every es- tablishment by the Saxon invaders, that the of the ciyu and Eoman law was quite eradicated {a). The only '^°™ ^*"- remains of this law that could be picked up in the Saxon times, were from the code of Theodosius, and such scraps of Gaius, Paulus, and Ulpian, as still existed in some mutilated parts of the Pandects^ (b). These remnants (a) It hag already been shown how utterly erroneous this notion is, arising ftom an entirely wrong, idea of the nature and character of the Saxon in- vasion, or rather invasions ; for they were numerous, local, and partial, and the Saxon conquest was so gradual, that it took centuries before it was com- pleted, and was scarcely so, when the Danish invasion commenced; and during this long period tliere was ample time for an amalgamation of races, and an adoption of institutions. It has been seen that, so soon as the Saxons got settled in any part of the country, which was at first almost always in a rural district, they at once ceased to destroy what they wished rather to en- joy, and were soon content with making the former inhabitants their tribu- taries ; and as the existing Boman institutions afforded the most convenient mode of so doing, they, of course, retained them. The Saxon conqueror seized the Boman manor, and made the owner his tributary, and all things went on as before. That the manorial system was adopted by the Saxons, has been shown from the Saxon laws as to the coloni, or tenants of the manor, and the manorial institutions pervaded the whole of the country. As to the municipal institutions of the cities, there is no trace of their being interfered with, while there is evidence that they were adopted. The con- quest of the cities were, for reasons already glanced at and pointed out by Guizot, the latest of the conquests of the invaders ; and they were by that time so far civilized, as to be capable of appreciating their institutions. We find, in the earliest of the Saxon laws, after the cities were subdued, a recog- nition of their privileges (see the Laws of Athelstan, which make mention of most of the chief cities of the country south of London, and comprise a distinct enumeration of the customs of London — {Anglo-Saa. Laws, v. i., p. 234) ; and we find afterwards, among the Saxony those guilds or trade cor- porations which the Eomans had established in the cities. (6) The author very much underrates the extent and copiousness of the Code of Theodosius, and he entirely ignores the elements of tradition and cus- 1 Duck de aut., 299. 25 T 290 WILLIAM I. TO HENRY II. [CHAP. II. of the civil law, like other learning, were mostly in the hands of ecclesiastics, who studied them with diligence. It was from these that they formed a style, and learned a method, by which to frame their own constitutions ; which were now growing to some magnitude and consequence, and began to claim notice as a separate system of law of themselves. During the reigns of "William the Conqueror and Rufus, we hear nothing in this country of the civil law' (a); torn as a means of transmitting the Roman law. There can he no douht, as has been shown in the Introduction, that during the four centuries of the Koman occupation, a vast deal of Boman law had got into the customs, es- pecially of cities ; and much of it, too, was embodied in traditional ideas of law. " It is essential to observe," says our great historian. Sir J. Mackin- tosh, "that the Eoman law never lost its authority in the countries which formed the western empire. All Europe obeyed a great part of the Boman law, which had been incorporated with their own usages, when these last were first reduced to writing after the Conquest. The Boman provincials retained it altogether as their hereditary rule. The only historical question regards, not the obligation of the Boman law, but the period of its being ' taught and studied as a science. It is not likely that such a study could have been entirely omitted in Eoman cities, and where there were probably many who claimed the exercise of Boman law." (In a note, he mentions instances of English prelates who had studied the Boman law from the eighth century downwards. Thus, a Bishop of Salisbury studied the Roman law at York : — " Legem Romanorum jura meduUitus remari, et juriscon- Bultorum secreta imis praecordiis scutari." Alcuin describes the same school, at York, in the ninth century.) " But the Boman jurisprudence did not become a general branch of study till after the foundation of universities for systematic instruction in that and other parts of knowledge. It soon made its way into England, and was taught with applause by Vacarius, at Oxford, about the middle of the twelfth century, as we are told by his puyil, John of Salisbury" (Made. Hiel. Eng., vol. i., p. 173). Hallam and Guizot give similar testimony (ieci. Swr la Omliz.). At the time of the Conquest, as Mr. Foss states, and for a long time afterwards, our chancellors and justiciaries were Eoman ecclesiastics ; finally, we find the whole civil and ecclesiastical organization of the country under the Saxons as they existed during the Boman occupation — counties and hundreds, dioceses and parishes. Nothing, therefore, could be more utterly contrary to historic truth than the statement in the text; for, of course, law is best embodied in institutions; and if the institutions remain, the law they embody must also remain. But there is, as has been seen in the Saxon laws themselves, abundant evidence of the existence of some knowledge, obscure and imperfect though it may have been, of the Eoman law, since some of the main principles of that law are to be found — no doubt, in scraps and fragments — in the fabric of those laws ; while, in the first compilation of laws formed after the era of the Conquest — under one of the sons of the Conqueror, Henry I. — we find that, as Lord Hale says, " they taste of the civil and canon law," and whole passages are taken therefrom. The idea that the Boman law had perished or disap- peared, is therefore entirely erroneous. (a) On the contrary, the laws of the Conqueror repeatedly make mention 1 Duck de aut., 307. CHAP. II.] THE CIVIL AND CANON LAW. 291 though the institute, the code, and the novels of Jus- tinian, had been taught in the school of Imerius, at Bologna, and there were even some imperfect copies of the Pandects in France ; yet the study of the civil law- did not go on with spirit ; nor was that system of juris- prudence regarded with the universal reverence which it acquired afterwards, when a complete copy of the Pan- dects was found at Amalfi, a. d. 1137, at the time that city was taken by the Pisans^ (a). The canon law first known in this country was formed by permission and under authority of the government, and seemed to be supported by arguments of expediency. The existence of a church, with the gradation and sub- ordination of governors and governed, called for a set of of ecclesiastical courts and the canon law. Thus, the law already alluded to, enforcing the exclusive jurisdiction of the bishops over canonical offences: " Nee causam quae at regimen animarum pertinet, ad judicium seculariam hominem adducant ; sed quicunque, secimdem episcopales leges, de quacunque causa Tel culpa interpellatus merit; secundum canones et episcopales leges, rectum Deo et episcopo suo faciat" {Anglo-Saxon Laws, vol. i., p. 495). (a) This is the absurd idea, borrowed from Blackstone, that the study of the Boman law, all of a sudden began on the occasion of the discovery of a par- ticular book ; as if the book would have any interest, if the subject had not already been studied and appreciated. The object of diffusing this idea was obviously to excite a prejudice against the Boman law, by creating a notion of its novelty, and obscuring the fact that the law of England was founded upon it. The great object of the commentator was to enhance and aggran- dize the credit of the common law, as of English growth, in order to vindi- cate the foundation of a professorship of it, as distinct from the Boman law ; and hence he entirely ignores the Boman origin of our law, and endeavors to represent the introduction of the Boman law as comparatively modern and novel. But the idea is derided by later and more honest writers. Thus Sir J. Mackintosh says, " It was indeed a most improbable supposition that a manuscript found at the sack of Amalfi, not adopted by public authority, should suddenly prevail over all other laws in the greater part of Europe " (History of England, v. i., p. 173). So the great historian of Europe says, "The revival of the study of jurisprudence, as derived from the laws of Jus- tinian, has generally been ascribed to the discovery of a copy of the Pan- dects. The feet, though not improbable, seems not to rest upon sufiScient evidence; but its truth is the less material, as it appears to be unequivocally proved, that the study of Justinian's system had recommenced before that era. Early in the twelfth century, a professor opened a school of civil law at Bologna, where he commented, if not on the Pandects, yet on the other books — the Institutes andtheCJode — which were sufficient to teach the prin- ciples and inspire the love of that comprehensive jurisprudence. The study of the law having thus revived, made surprising progress" (Middle Ages, c. 8). And he says "that the body of the law was absolutely unknown in the west during any period, seems to have been too hastily supposed " (Ibid.), for which he cites Selden, ad Fletam. ' Giann., Hist. Nap., lib. 11, ca. 2, vol. ii., p. 119. 292 WILLIAM I. TO HENRY 11. [CHAP. II. regulations for the direction and order of its various func- tions. This was admitted ; and under that notion a hody of canonical jurisprudence had been suffered to grow up for a long course of years. In a national synod held a. d. 670, the codex canonum vetus eceksm Romance was received by the clergy.' It appears also by the before-mentioned charter to the Bishop of Lincoln, that^ William the Con- queror, with the advice and assent of his great council, had reviewed and reformed the episcopal laws that were in use till his time in England. It is beyond dispute that a canon law of some kind had been long established here by the sanction of the legislature ; as ma;y be seen in Mr. Lambard's Collection of Saxon Constitutions *(«!). These (o) It is here obviously necessary to take some notice of these canons and canonical constitutions, because the author gives no account of them, and goes on to argue on an assumption or supposition of their character. An analysis has already been given of the laws of the Saxons, ecclesiastical and secular, upon subjects connected with religion. Of these the learned editor of the Anglo-Scaxm Lava Litt. Hen. II., vol. ii., 471. CHAP. II.] THE CANON LAW. 307 made an anathema to sue a clergyman before a lay judge ; if a lay judge condemn or destroy a clerk, he is to be ex- commanicated ; a clerk may implead a layman before what judge he pleases ; judges who compel a clerk to answer to a suit before them, shall be excommunicated ; a layman cannot give evidence against a clerk; with numberless extravagancies of the same kind (a). Such notions did the canonists propagate for law respecting churchmen, in the reigns of Henry II., of Richard, and of John. Indeed it was not till these doctrines had generally prevailed that the separate establishment of ecclesiastical judicature gained much strength. It was not till the publication of the Decretum, and the growing authority of the canons had given some order, consistence, and stability to spiritual government, that the exclusive jur- isdiction of these courts was an object of very important consideration, or that their claims were urged to any great extent. Some causes, apparently clerical, had continued to hang about the temporal courts, particularly those concerning tithes ; which, being the issues of freehold property, and so partaking of its nature, could hardly be considered as merely spiritual.' Accordingly such pleas were held both in the ecclesiastical and temporal courts till the time of Henry II. After that, tithes came under the notice of our courts of common law only in an indirect proceeding ; such as on prohibitions, writs of right of advowson, or by scire facias,^ an ancient proceeding since abolished by parliament.' The prerogatives of the hierarchy, and the jurisdiction of the ecclesiastical courts assisted each other in extending their influence. The courts grew in au- thority and the bishops rose in their pretensions. Amongst other attempts to aggrandize themselves, the (a) " Extravagancies," nevertheless, to be found in the Saxon laws, as al- ready has been shown, and all of which, except so far aa expressly altered, were repeatedly confirmed at the Conquest. It is obvious that in that age they were not considered "extravagancies," and that is the important point. That they would be so now is certain, for many reasons ; but there is no greater extravagance of absurdity than making the ideas, the circumstances, the impressions of a modern age the standard or the measure of another and a distant age. Yet this form of fallacy is prevalent in most histories of the middle ages. That it has been even to some extent avoided by such writers as Sir J. Mackintosh and Mr. Hallam, is one of the greatest of their many merits. But it was not always avoided by our author. ' Seld., Tithes, 387. ' Ibid., 422. » By Stat. Edw. III. 308 WILLIAM I. TO HENRY II. [CHAP. II. clergy did not omit so valuable a subject of acquisition as benefices. A benefice, being an eleemosynary provision for a person who officiated in the discharge of religious duties, was originally in the sole disposal of the founder, and was conferred, like other donations, by investiture ; but the bishops, as having the superintendence over spiritual things, claimed a right of control over these gifts (a). This occasioned a contest between patrons and (a) This is not a correct representation. The bishops claimed what they had always had, the right of appointing the clergy, just as the pope, as the head of the church, claimed the right of appointing the bishops, on the gen- eral principle that these offices were all pastoral, and purely spiritual. Nor was this claim disputed until they had long become the subject of endowment, nor even then until after the feudal system had become firmly established ; and it was then insisted that the temporalities were benefices, or were fiefs, in the feudal sense, and subject to feudal incidents, one of which was the right of the crown, or the patron, to confer them (so as to secure a veto upon the appointment], and also to have the custody of them when vacant, so that by combining the veto with the power of possession during vacancy, the king might secure the possession of the temporalitiesi until he coerced the pope into the appointment of some corrupt prelate, with whom he could make his own arrangements as regarded the inferior clergy. What they would come to, no one with the least knowledge of history can doubt ; and it is thus described by Sir J. Mackintosh : " The power of nomination (for such it was) had been converted by secular powers into an indecent and scandalous means of raising money, by setting up for sale the dignities and benefices of the church" (But. of Eng., vol. i., p. 347). This, the historian says, was the result of the claim of the king, which " involved a previous negative on every choice, and, in effect, amounted to the ecclesiastical patron- age of Europe" (Ibid.). So Mr. Hallam says, "The sovereigMk- the lay patrons, the prelates, made their powers of nomination and inve^Rure sub- servient to the grossest rapacity," to which he ought to have added, the prel- ates appointed by the sovereiffn; the great object was the struggle, on the part of the sovereign, to get control over the appointment of the bishops, so as to be enabled to obtain, by corrupt arrangement with them, control over the appointment of the clergy. And this, indeed, was the next important feature in the matter ; for, of course, to have all Christendom covered with a cor- rupt and ignorant clergy, would have been destructive of Christianity. And Mr. Hallam says, " Through bribery, or through corrupt agreements with princes, a large proportion of the bishops had no valid tenure in their sees. The case was perhaps worse with the inferior clerks" (Midd. Ages, c. v.). As to the importance of the question, therefore, there can be no doubt; neither can there be any doubt in the mind of any lawyer as to the utter absence of any pretence for the claim set up by the sovereigns. This can be shown in many ways. The shortest and clearest way, perhaps, is to refer to the general principle already alluded to, that these offices were pastoral and purely spiritual, and that by the constitution of any country acknowledging the Eoman church,_and the pope as the head of it, and as the supreme pastor, the nomination of episcopal pastors must pertain to him, and of parochial pastors to the bishops. And, as already noticed, this claim was not disputed, until some time after the Conquest, nor until after the estab- lishment of the feudal system, when the grossest oppressions and exactions took place; as was noticed and acknowledged in the Leges Hmriei Primi — CHAP. II.] ECCLESIASTICAL JURISDICTION. 309 the bishops for many years; till at length the ancient way of investiture entirely ceased about the reigns of kings Richard and John, and lay patrons became obliged first to present their clerks to the bishop, who, according to his discretion, gave them institution} A like method of filling vacant bishoprics was claimed by the pope ; but the spirited resistance of some of our kings defeated all "Quia regnum oppressum erat, injuatis exactionibus : ego sanctam Deo ecclesiam liberam facio, ita quod nee vendam, ngc ad firmam ponam ; nee, mortui archiepiscopo sive episcopo, vel abbate, aliqiiid accipiam de dominio eccksioB donee successor in earn ingrediatur" {Anglo-Saxon Laws, vol. i., p. 498). So that it is certain, as it is solemnly recited in a legal record, that these things had been done by the conqueror and his sons ; the voice of contem- porary history (in the chronicles) also abundantly attests it, and it there appears that, as above stated, kings set up a claim to practise upon the en- dowments of the church the same exactions and oppressions which they practised on the other estates of the realm, upon the pretence that the feudal Erinciples applied. That this pretence was false and unfounded, has already een shown from Littleton, who, long after these controversies was over, laid it down as undoubted law, that in tenure by frankalmoigne (which is the tenure of bishoprics and other benefices), there is no iemporal service due at all, as the service is purely spiritual. And, as already has been shown, the whole scope and tenor of the Saxon law was to leave to the church the con- trol of what was spiritual. It is fully admitted by all the writers who up- hold the royal claim now, and is implied by our author in his use of the feudal word, investiture, that it was based upon feudal principles, and, there- fore, was unfounded. The pretence that because the endowment was temporal, the benefice became no less clearly fallacious, for it was a well-known maxim that the principal draws it to the accessory, not the accessory the principal. And thi^n fact, was the whole point of the question, whether the spiritual was to yiffd to the temporal, or the temporal to the spiritual. Of course, the rapacious sovereigns who ravened after church spoil, and kept sees vacant in order to enjoy it, or to force the pope to sanction the appointment of corrupt men, who would allow them to share the plunder of the diocese, and farm out benefices to the highest bidders ; of course they deemed the temporalities the most important, and cared little for" the spiritualities. But the original donors, who were not merely sovereigns, but multitudes of other persons (as the statutes state), gave the endowments in aid of the spiritualities and in support of the church, not for her enslavement and sub- jection. They gave to the church as she then existed, viz., free, and under the spiritual care of her pastors; and it would be irrational to suppose that they meant their donations to be the foundation of future usurpations. That, therefore, which the author, unaware of the contents of Henry I.'s charter, represents as an innovation introduced in the reigns of Bichard and John, had been the original usage, and had been wrongly violated by the Con- queror and his sons, a-s Henry I. confessed. It will be apparent that the great, the fundamental question was as to the appointment of the bishops ; for if the king could either appoint them at his pleasure or keep the tem- poralities of the sees in his hands until his nominee was admitted, the whole of the diocese would virtually be in his hands; and such kings as then reigned were capable, as the chronicles show, of any amount of corruption, plunder, or oppression. ' Seld., Tithes, 383. • 310 ■WILLIAM I. TO HENRY II. >'[CHAP. II, his attempts, though, as usual, he never receded from the pretended right. The appointment, however, to bishoprics, was, to a degree, put under the control of the pope (a). In the time of Henry I. a bishop elect was to receive investiture of his temporalities from the king, of whom all bishops held their lands as baronies {b). This was performed by the king's delivering to the bishop a ring and crosier, as symbols of his spiritual marriage to the church and of his pastoral office ; and hence called investiture per annu- lum et baculum : after this the bishop used to do homage to the king, as to his liege lord. But that king finding it expedient to give way to the demands of the pope (c), resigned this power and ceremony of investiture, and only required that bishops should do homage for their tempo- ralities : and King John, to obtain the protection of the pope, was contented to give up, by charter, to all monas- teries and cathedrals, the free right of electing their prelates, whether abbots or bishops. lie reserved only to the crown the custody of the temporalities during the vacancy; the form of granting a license to proceed to 'election (since called a eo7igS aelire), on refusal whereof the electors might make their election without it ; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause (d). This (o) Had always been so, as the charter of Henry I. admits, of which the author was not aware, vide ante. (6) Not so at all. Quite the contrary. There was the fallacy. The baronies were held on secular tenure, which was feudal ; the bishoprics were held on spiritual tenure, which was not feudal. Thus Littleton says, " They who hold in frankalmoigne shall do no fealty to their lord, because the very words exclude the lord to have any earthly or temporal service, but to have only divine and spiritual service " (c. vi.). Glanville had laid down the same law, under Henry II. (c) The charter of Henry I. has been already quoted, in which he ac- knowledges that his claims had been abominable and oppressive exactions. He had kept bishoprics vacant, in order to exact money, or the admission of his own nominees. Of course he cared not about the ceremony ; it was the power of nomination and the right of patronage, which he strove to obtain, for the sake of these exactions. (d) Thus, then, after all, the position taken by the church has been ad- mitted to have been in substance right; for at this moment, even in this country, the letter of the law allows of free clerical choice in the election of bishops; and if the law is only a dead letter, it is only because, by reason of the separation from Borne, there is no supreme ecclesiastical authority to whom the clerical choice can be referred, and all authority is virtually merged in the royal prerogative. In the period referred to, however, the papal supremacy was in full force, and was acknowledged by the law and con- l CHAP. II.J ECeiiESIASTICAL JUDICATURE. 311 grant was expressly recognized and confirmed by King John's Magna Charta; was again established by stat. 25 Edw. III., St. 6, c. 3 ; and continued the law and practice till the time of Henry VIII. To return to the practice of ecclesiastical judicature. There were two subjects of jurisdiction which the spir- itual court gradually drew to itself and endeavored to appropriate : these were marriages and wiUs ; which latter led to the cognizance of legacies, and the disposal of irvr testates' effects. Marriage, being a contract dictated and sanctioned by the law of nature, and entitling the parties to certain civil_ rights, seems to have nothing in it of spiritual cognizance; but the church of Eome having converted it into a sacrament, it became entirely a spiritual con- tract, and as such fell naturally within the ecclesiastical jurisdiction, very soon after its separation from the secu- lar court ; it followed almost of consequence (a) that the stitutions of this country ; and, therefore, as it is at this moment admitted that the election of a bishop ought to be a matter of free clerical choice, it is properly of a spiritual nature, and, therefore, according to the principles of the period in question, the papal claim was right. (o) All this is put as if it arose about the same time, " The jurisdiction . over matrimonial causes granted to bishops by Christian emperors was a very natural consequence of the religious rites with which marriage was solemnized, and the character of a sacrament, or eminently sacred rite, at- tributed to that important union" (Mackintosh's Hist. Bag., vol. i., p. 208). The rite of marriage was certainly, as Sir J. Mackintosh says, considered of the most sacred character from the earliest times in this country, for in the Penitential of Theodore it is said, " Presbyter debet messam agere et bene- dicere amboB, sicut in libro sacramentorum continetur" {Pen. Theod., c. xvii., s. 9j. At the same time, it is curious that there is in that same Pene- tential this remarkable provision, "Si mulier discesserit a viro suo, despiciens eum, nolens revertere et reconciliare viro, post v. annos, cum consensu epis- copi ; ipse aliam accipiat uxorem" {Ibid., c. xix., s. 23,). There is no doubt, however, that any Boman counsel or canonist would condemn this as unsound ; and it is well known that the whole spirit of tlie Boman system is, and always was, to treat marriage as sacred, and indeed sacramental ; and the union as indissoluble. This being so, it was surely very natural that it should be deemed of ecclesiastical cognizance. It is to be observed that in the Mirror of Justice marriage is treated as a contract, but one perpetual (c, ii., s, 27), indissoluble (c, iii,, s, 5), and of ec- clesiastical cognizance, " A. contract is a speech between two parties that a thing is to be done, of which there are many kinds, whereof some are per- petual, as those of matrimony" (c, ii,, s, 27), "And note that matrimony is the lawful order of joining together of a Christian man and woman, by their assents ; and as of the deity and humanity of Christ, there is made an irir dissolMe unity, so vias matrimony, and according to such unity was such coupling found to be; and therefore none can remain in that unity who takes to lumeelf a plurality" (c. iii., s. 5). It is added that bigamy is triable in 312 WILLIAM I. TO HENRY IT. [CHAP. II. spiritual court should likewise determine questions of legitimacy and bastardy. Cases of wills and intestacy, as they were, in their Probate of nature, less allied to the spiritual function, '""■ did not entirely submit to the ecclesiastical jurisdiction. It appears from Glanville, that in the reign of Henry II. the jurisdiction of personal legacies was in the temporal courts.^ But notwithstanding this, if there was a question in the temporal court, whether a testament was a true one or riot; whether it was duly made, or whether the thing demanded was really be- queathed ; such plea was to oe heard and determined by the court Christian ; because, says our author, all pleas upon testaments are properly cognizable before the ecclesiastical judge? Thus, the validity of a testament, or the bequest of a legacy, was to be certiiBed by the spiritual court; nevertheless, as in cases of bastardy the court Christian the lay court ; but if the jury doubt thereof, in the case of a clerk, then the ordinary is to certify the same as in the case of matrimony, when it is denied (Ibid.). It is very remarkable that it appears from the Saxon laws, and from this part of the Mirror (which is evidently as old as the Saxon time), that priests were allowed to marry, for it is said that a clerk's claim of priv- ilege might be met by showing that he was "bigamous," either by having twice married, or by having married two wives at the same time (Ibid.). And it is plainly implied that his merely hairing married would be no offence. And in the Saxon laws there appears no prohibition of clerical marriages ; the language of the Saxon canons on the subject rather imply the legality of such marriages, for it is put rather as a matter of continence becoming to the sacred state, than of utter disability to contract marriage, " Lex conti- nentise est altaris ministria quse episcopis aut presbyteris, qui cum essent laici, licete uxores ducere et filios procreare potuerunt, sed cum ad prsedictos gradus pervenerint, coepit eis non licere quod licuit. Unde et de carnali fit spirituale connubinm. Oportet eos nee demittere uxores, et quasi non habe- ant sic habere, quo salva sit charitas connubiorum et cesset operatio nupti- arum" (Oapit. Theod., Ang.-Sax. Laws, v. ii., p. 74). In the canons indeed it was laid down that if a priest married, he should forfeit his order, " Si presbyter vel diaconus uxorem duxerit, perdat ordinem suum ; et si postea fornieati fuerunt, non solum ordine priventur, sed etiamjejunent juxta sen- tentiam episcopi" (Pen. Egb., lib. lii., c. 1 ; Ang.-Sax. Laws, v. ii., p. 197) ; but this appears to imply that the marriage was valid, or why should it be a deprivation of the order? and the prohibition of intercourse would be mere penitential discipline. In the Institutes of Polity it is said that marriage is not allowed to the clergy (Ibid., p. 335) ; but then afterwards it is said that a priest's wife is a snare (Ibid., p. 337). In the Saxon ecclesiastical laws there are repeated declarations that the clergy ought not to marry (Can. Eccl. Laws, c. 1 ; Ang.-Sax. Laws, v. i., p. 365) ; but it is doubtful whether by the secular law the marriages were illegal and void. It was undoubtedly con- sidered indecent, and a cause of deprivation. But the Mirror appears to imply that a clerk might be married legally. 1 Lib. 7, c. 6, 7. s Ibid. CHAP. II.] TESTAMENTS AND INTESTACY. 313 did nothing more than answer the mere question, whether bastard or not, and the consequence of descent and title was left to be determined at common law; so were the consequences of a testament, as the recovery and pay- ment of legacies, to be heard and determined in the temporal courts. By the manner in which Glanville speaks of the predate of wills, it seems as if that course of authenticating wills had been long in use. The beginning, or steps, by which this innovation established itself, it is not easy to trace (a): it lies buried in that obscurity which involves not only the origin of our municipal customs, but the en- croachments gradually made upon them by the civil and canon law. When the ecclesiastical court had once the probate of wills, it appeared no very great enlargement of jurisdic- tion to add the power of enforcing the execution of them, in payment of legacies. But there are no testimonies of those times that warrant us to conclude, that this had generally obtained before the reign of Henry III.^ It seems doubtful, whether the mode used by the Saxons for the distribution of the estates of intestates con- tinued during the whole of this period. A law of Henry I. says, that upon a person dying intestate, those who were entitled to succeed should divide his effects pro animd ejus (b). This is the first mention in our law of a (a) On the contrary, it is perfectly easy, when reference is made to the Eoman law, which had long ago provided a regular mode of authenticating wills, doubtless established in this country during their occupation, and vir- tually the same as that found adopted here ; the courts of the bisliops being substituted as the places of registry, for the obvious reason that in those days ecclesiastics were the only persons who could read and write. The existence of a custom in some manors for the lord to have the registry is easily ex- plained, either by the supposition that the manor at one time belonged to ecclesiastics, or that the lord had the exceptional endowment of being able to read and write, and so acquired this privilege. In some of our most an- cient cities, as York and London, there are customs as to wills probably as old as the Bomans. (6j There was no such law; and if there had been, it could not have been carried out consistently with canon law, which requires that the obligations of justice should first be satisfied before those of piety. The " law of Henry " was the charter of that king, recognizing and promising to observe the law of the land settled long before the Conquest, and recognized in the laws of Canute, that the effects of an estate should, in certain proportions, " be divided among his relations" (Laws of CaniUe, a. 73). This meaning, of course, his available effects, after payment of debts. " Si quis preventus, pecuniam suam ' Seld., Works, vol. iu., 1672. 27 314 WILLIAM I. TO HENRY 11. [CHAP. II, disposition of an intestate's effects for the benefit of his soul; but there is no mention of the control or inter-, meddling of the bishop, either in this law, or, even later than this, in Glanville ; although he expressly mentions the jurisdiction of the church as to testaments. In King John's charter it was expressly provided, that if any freeman died intestate, his chattels should be dis- pos^d of by the hands of his next of kin fer visum ecclesice, by the advice and direction of the ordinary, saving to all creditors their debts (a). This clause, it is said, was word for word in the charter 9 Hen. III., and is to be seen in several manuscripts of it;* bat being left out of the ex-, emplification of this charter on the roll 25 Edw. I., from which is copied the Magna Charta in our statute-books, it is not now found there. The provision was probably inserted by the contrivance of the bishops, who, with Pandolfo, the pope's nuncio, were with John at Eunny- mede (p). There was not wanting color for a provision like this ; for as the statute of Henry I. before alluded to, had expressly said, that the distribution was to be jpra animd intestati, the bishops seemed, by their holy function, to be best qualified to see this office performed with fidelity. Hence it was that, in after-times, this power was delegated by the ordinary to the next of kin, in letters or otherwise ; an authority grounded upon these words of the charter, per visum ecclesice;^ though there are non ded^rit nee dare disposuerit, uxor sua, sive liberi earn pro anima ejnq dimdant, sieut eia mdius visum fueril" [Leges Sen. Prim., c. i., p. 7). That is, divide his effects according to what in their judgment would be right and proper, and for the benefit of his soul ; and according to canon law and com- mon sense this would imply that they, his nearest relations, should have the reasonable share the law allowed them. And no one will doubt that they took proper care of their own interest. Then the charter of John conceded, in pursuance of the charter of Henry, and in order to secure to the relative? their due share of the effects : " Si aliquis liber homo intestatus decesserit, catalla sua per maims propinquorum parentum et amicOrum suorum, per wsttm eeclesiae, disiribuantur : salvis unicumque debitis quse defunctus ei d&? bebat" {Charter of John, c. 27). That is to say, that the effects, after pay-- ment of debts, should be dislrAiUed according to law, that law being, that the greater part, as Glanville states, should be distributed among the relatives, and the residue be applicable for the benefit of the soul of the deceased, according to the ideas and the belief of that age ; but this, after payment of just debts. (a) Here, again, the charter was not so. It was that the effects should be distributed among the relatives aa provided by law, vide supra. (6) A provision for distribution of the effects according to law, vide supra, ' Seld., Works, vol. iii., 1676. ^ Ibid., 1679. CHAP. II.] ECClESIASTICAL CONSTITUTIONS. 315 no documents that assure us this law was put in force during the reign of King John. n In tlie reign of Stephen the clergy began to draw into the spiritual court the trial of persons ■pro Icesione Jidei, that is, for breach of faith in civil contracts. By means of this they took cognizance of many matters of contract which belonged properly to the temporal court. This was the boldest stretch which that tribunal ever made to extend its authority, and would, in time, have drawn within its jurisdiction most of the transactions of mankind. The pretence on which they founded this claim was probably this : that oaths and faith solemnly plighted being of a religious nature, the breach of them more properly be- longed to the spiritual than to the lay tribunal. The circumstances of the times tended very much to encourage the clergy in their scheme of opposition to the secular power. The provision for the clergy was in those days very precarious, and left them at the mercy of their patrons. Being, in general, from their function, con- sidered as a sacred body of people, when oppressed and ill- treated by potent lords, they drew the compassion of many, and particularly the support of their bishops ; who, in their turn, receiving as little favor from kings, were con- tinually increasing their store of merit with the sover- eign pontiff by the many struggles they engaged in on their own account, and on account of their inferior breth- ren. The pope, no ungrateful sovereign, always distin- guished his zeal in supporting his bishops as they did in supporting the lower clergy ; till the several orders of ecclesiastics, united in a common cause, and sharpened against the laity by long contention, encouraged each other, by every motive of defence and aggrandizement, to contribute in their stations to promote the power of the church. The pope having made use of the bishops to gain and govern the clergy, united all their powers to establish a dominion over the laity ; and ho occasion was let pass in which any of them could snatch an ad- vantage (a). Henry I. being seated on the throne by a doubtful title, thought it prudent to gain the clerical part of his subjects (a) All this is mere general assertion, not founded upon any authority, nor supported by any, and the value of it may be estimated from the degree of verity to be found in the next statement. 316 WILLIAM I. TO HENRY II. [CHAP. II. by some concessions (a). Stephen, who owed his authority entirely to them, went further {b). By these means they acquired such confirmed strength and habitual reverence from the people, that notwithstanding all the power of Henry II., and the spirit with which he asserted his sovereignty and independence, the contest he had with Becket tended to an issue directly contrary to that which he had promised himself ; so that, after some concessions and connivance, to which he submitted in fits of repent- ance, his reign ended in a firm establishment of the clergy in most of their extraordinary claims of privilege and jurisdiction. The contest that Henry II. had with Becket concern- ing the limits of ecclesiastical power, fills up a great part of that king's reign. To give weight to his side of the contest, and, instead of debating, to effect a clear decision, Henry procured an act of the legislature formally enact- ing the principal points of controversy for which he contended (c). This was the famous Constitutions of Clarendon. (a) So far from it, that as he himself acknowledged, there had been great oppressions and exactions, and he only promised not to continue them, " Quia regnum Anglia oppressum erat, injustis exactionibus ; ego sanctam Dei ecclesiam liberam facio, ita quod nee vendam nee ad firniam ponam ; nee, mor- tuo archiepiscopo, sive episcopo aliquid aliquam de dominio ecclesiee donee suc- cessor in earn ingrediatur. Et omnes malos consuetudines qualis regnum Anglia opprimebantur, inde aufero " {Leges Henrid Primi, 1). But how far he kept his promise, let contemporary history tell. When Rufus died, says William of Malmesbury, three bishoprics were in his hands ; in a few years Henry had jive. And when after the controversy about investiture he yiided, so far from acting upon considerations of policy, the chronicler states that he had held out mainly in consequence of the persuasions of his nobles, who, of course, were desirous of prolonging the reign of ravage and rapine. Upon the relinquishment by the king of his unfounded claim, no less than five bishops were consecrated, whose sees had been kept vacant in order to en- able the king to plunder their temporalities ( WiUwm of Malmesbury, b. ii;, A. D. 1107). (6) Went much further in exaction and oppression. Sir J. Mackintosh terms him a captain of banditti {Hisl. Eng.). He plundered the church with- out mercy. (c) The author here, as Henry had done, begged the whole question, and, like the king, would decide the case without debating it. It is impossible to form a judgment upon the merits of this most memorable controversy, merely by looking at these Constitutions, without attending to the previous events. This would be necessary even if the Constitutions could really be considered as in the nature of a statute or an act of parliament. For though they would of course determine the question as a matter of law, that would Btill leave the question open as a matter of legal history, what was their real nature and origin, and what their real meaning, and whether they were an CHAP. II.] ECCLESIASTICAL CONSTITUTIONS. 317 At a great council held at Clarendon, a. d. 1164, in the 10th year of his reign a code of laws was constitutions brought forward by the king under the title »' Clarendon. alteration of the law or not. But whether they were indeed of the nature of a statute, or were rather a mere device of a despotic monarch to give the color of authority to his aggressive tyranny, is a question which itself must depend upon all the surrounding facts and circumstances of the case. And the first thing to carry clearly and carefully in mind is this, as in any other legal oontroyersy, what was the state of the law when the controversy arose? The next thing is to have a clear knowledge of the facts, so far as they throw any light upon the controversy. Now, as to the law, the reader has the means of forming a judgment by referring back to those copious quotations from the Saxon laws which have already been given, and which were all confirmed by the Conqueror and his successor, Henry I., especially as to the rights and liberties of the church. This is of the more importance, because the archbishop was of Saxon origin, and would no doubt have a strong at- tachment to the laws of his Saxon ancestors. By those laws, in a legal point of view, he must be judged. Mackintosh, with characteristic candor, appears to allow that the only way to judge fairly of Becket is to put ourselves as much as possible in the position in which he was at the time of these events, and admit that the archbishop sincerely supposed and believed that he was in the right as to the law of the land at the time. It is to be observed that Becket, before he was archbishop, had been eight years chancellor, and that he had also acted for years as justiciary (Foss's Lives of Judges, vol. i., p. 198), and that under his auspices the administration of justice had greatly im- proved {Ibid.). It is manifest that such a man must have known the Saxon laws, and the charters confirming them, and of course was well aware of what had taken place in the reign of Henry I., when the rights of the church as to the episcopate were established. That b^ing so, the probability is that he would know what the law was ; and, at all events, it is manifest that to enable us to judge of his conduct, the first great question is what the law was? This the reader can judge for himself from the citations already given ; and it need only be said that it is conceived they show that the law was clear that the church should be free — that is, free in her elections, and free in her sentences, and free from all secular jurisdiction. Controversies had, however, arisen between the crown and the church in the reign of Henry I. as to the right of the crown to give investiture of bishoprics, on the pretence that they were baronies, and so held of the crown, like feudal benefices. The effect of this would have been to give the crown virtually the control over the episcopate, as it could exercise a veto upon any election by refusing in- vestiture, and thus keep sees vacant for any time. And as the crown claimed and exercised the right of custody of vacant sees, and received and enjoyed all the temporalities, it is manifest that there was the strongest motive to abuse the power thus claimed ; nor is there any doubt that, as a fact in his- tory, it was so abused. After a great struggle, in the reign of Henry I. the claim of investiture was relinquished by the crown, but it still claimed the right of custody of vacant sees. What that law was has been shown, and the reader can refer back to the statement of it, and see how far it recognized the canon law and the rights of the church. It is most natural to refer also to the terms of the charters, as to the church, and especially as to its bishop- rics. The charter of Henry I. acknowledged that the church and the country had been oppressed by most grievous extortions, especially in the selling of bishoprics or benefices : " Quia regnum oppressum erat injustis exactionibus, ego sanctam ecclesiam liberam faciam ita quod nee vendam, nee adfirmampq- 27* 318 WILLIAM I. to' HKNRY II, [CHAP. II. of the ancient customs of the realm; and as Becket had solemnly promised he would observe what were really nam, nee, mortuo archiepiscopo sive episcopo, vel abbate, aliquid acaepiam de dominio ecclesise, donee sueeessor in earn ingrediatur" (c. 1). This wag a confession that the Conqaeror and his sons had interfered with the lib- erties of the church, and had made the vacancies of sees the occasion of enormous oppressions and exactions. It was also a distinct acknowledgment that these practices were illegal. Thus the liberty of the church meant, and that is included, liberty to proceed to give elections of bishops, so as to put an end to vacancies in the sees, appears from subsequent charters. That of Stephen declared, " I promise to do nothing in the church or in ecclesiastical affairs simonically, nor will I permit it to be done. I defend and confirm that the power, possessions, and dignities of ecclesiastical persons, and all clerks, and the distribution of their goods, shall be in the hands of the bishops. And I grant and establish that the dignities of churches, confirmed by this privilege and the ancient customs, shall remain inviolable." (See Blackstone' s CAarfers.) Then Stephen granted a further charter of all those liberties and good laws and customs which Henry I. had granted, and which were held in the time of King Edward. Then Henry II. himself had granted a charter, which was in these terms : " I have granted and restored, and con- firmed to the church all the customs which King Henry I. gave and granted to them, and abolished all evil cugtoms which he abolished, and I will that the church do have and hold all usages, liberties, and free customs as freely and fully as he granted to them," so that there had been under the Conqueror and his successors certain usages introduced contrary to ancient usages, and contrary to the law. And closely connected with, and indeed disclosed in the chapters, are the facts of history to which they had reference, that the Norman sovereigns had been in the habit of keeping eees vcuxmt in order to enjoy their temporalUies, and to extort money for the liberty to come to an election, or even assent to the nomination of a corrupt and vicious prelate, who would be willing to collude with the king in the plunder and corrup- tion of his diocese. It is an undoubted fact that Henry and his predecessors thus held sees vacant — sometimes as many as five or six at a time — and plundered them meanwhile (Lingard's Eng. Hist, v. i., c. 3), and in the in- tervals, valuable possessions of the church were alienated to royal favorites. It appears, however, that so soon as A'Becket was made archbishop, he showed himself resolute in recovering the lost possessions of the church, and that he at once claimed a barony belonging to his see, which had for some time been in the possession of one of the king's most powerful and favored vassals. If this claim had not been warranted by law, it could and would have been con- tested, and as it was not, it may be presumed that it was valid. The arch- bishop also presented to a living (of Eynsford) belonging to a manor which, beyond all doubt, belonged to his see ; the fact is admitted by Hume (Hist. Emg., V. i., c. 8, p. 34), and it appears from the record of the great suit by the Archbishop of Canterbury in the time of the Conqueror, to which allu- sion has been made more than once (vide ante, p. 260 J. One of the king's military tenants who had possession of the manor forcibly expelled the pres- entee, pretending to be patron. Whether he was so or not, however, is not material, for of course the forcible ejection of the archbishop's nominee was not a proper way of deciding a question of church patronage, and was, more- over, a high contempt of the head of his church. The archbishop accord- ingly excommunicated him : the king sent orders to the archbishop to take the sentence off. The archbishop refused, replying that it was not for the king to prescribe whom he should or should not excommunicate. No one who has given the least attention to the laws of that time can doubt that the CHAP. II.] ECCLESIASTICAL CONSTITUTIONS. 819 such, the king procured the principal propositions in dis- pute to be enacted, and declared by the council under that archbishop was right. The refusal, however, it is clear from the result, greatly offended the monarch, and he soon afterwards seized upon another ground of dispute, in which he was equally in the wrong; and in which his object — as his subsequent conduct showed — was to acquire greater power over the clergy. In the time of the archbishop's predecessor, one of the priests of his province had been accused of homicide, and tried before his bishop, according to the law still in force. One of the king's justices in cir- cuit took occasion, the priest being in court, to denounce him as a murderer ; the priest uttered expressions of anger and contempt, for which he was tried, and severely punished. The king, however, then insisted that henceforth the clergy should, after they had been first degraded by the sentence of the spiritual judge, be afterwards delivered over to the lay tribunal to be tried according to die secular law. This, it is plain, would be an alteration of the law, and the king's language, as Lingard observes, in making it, showed that he knew it was so, " Peto et volo ut tuo, Domine Cantuarcnsis, et co- episcoporum tuorum consilio." And it was obvious that it would have en- abled him easily — by means of servile judges — to get rid of an obnoxious prelate. The prelates objected, on the double ground that it would be pun- ishing a man twice for the same offence, and that it would be placing the English clergy in a different position from that which the clergy occupied all over Europe. It was then that the king demanded of them if they would observe " the ancient customs of the realm." This, as Lingard observes, was a captious question, for it left all open what were the "customs" intended; and it might be that what the king intended were the evil customs as to the church, which the Conqueror and his sons had introduced, and which Henry I. bad renounced, and there is abundant reason to believe that this was so, from the very nature of the demand, from the circumstances under which it was made, and from what soon afterwards followed. The demand had no reference to the immediate subject of dispute, the jurisdiction over clerks, for it was not pretended that there had been any custom upon that matter at all in favor of the claim to lay jurisdiction. There had, however, been customs — evil customs though they had been admitted to be — which had for some time been in existence, though again and again renounced, and these customs were of immense practical impoi'tance to the king ; while the jurisdiction over clerks was probably a matter of little concern to him. For the effect of these customs, it will have been seen, was, that the king kept sees vacant for the sake of plundering the temporalities, and also of enforcing the admission of corrupt and servile prelates who might con- nive at his doing so. The controversy with the archbishop, be it observed, had begun with his endeavor to recover the temporalities of his see. The king would, no doubt, foresee that such a man was likely to prove an inde- pendent and determined antagonist in any plans of church spoliation he might contemplate, and therefore it would be of the most vital importance to the king to commit the prelates, and especially the archbishop, to some vague admission of customs which might appear to cover their encroach- ment. Moreover, the actual facts and circumstances of the time show that this was really what the king was aiming at, for it appears that he had in his hands, a few years after this, an archbishopric, five bishoprics, and three abbeys; and a few years later, no less than seven bishoprics, and an arch- bishopric, besides several abbeys, and had divided the greater part of one of the bishoprics among his knights (Lingard, J3is«. Eng., v. ii., c. 3). This was exactly the course the Conqueror and his sons had pursued, _and_ was the very course Henry I. had renounced ; it was grossly illegal, yet it might, 320 WILLIAM I. TO HENRY II. [CHAP. II. denomination. Nothing will enable us to judge so well of the pretensions of the clergy, as a perusal of these Constitutions; they shall therefore be stated at length. They are contained in sixteen articles ; ten of which were considered by the see of Rome as so hostile to the rights of the clergy, that Pope Alexander in full consistory passed a solemn condemnation on them ; the other six he tolerated notas good, but less evil. These six articles were the 2d^ 6th, 11th, 13th, 14th, and 16th. The 2d, Churches belonging to the see of our lord the king cannot be given away in perpetuity, without the consent and grant of the king. 6th, Laymen ought not perhaps, with some color, be pretended that it was a custom. There can be no doubt, therefore, that it was this the king was aiming at, and it affords an explanation of his sudden demand on the prelates for a recognition of his customs. The prelates replied that they could only assent, saving the rights of their order; an answer which, of course, foiled the wily monarch. He was enraged, and at last extorted an assent to the customs, and a council was summoned at Clarendon, at which these customs were drawn up, and one of them was, ihM the custody of eoery vacant bishopric, archbishopric, or abbey should be given, and its reoenues, during the occupancy, paid to the king, and that the election ought to be by the king's writ : the effect of which was to establish the vicious and pernicious practice renounced by Henry I., and to enable the king to keep sees vacant as long as he pleased, thus receiving the revenues all the time, which of course would be the strongest inducement to prolong the vacancy. Then it was claimed that the proceedings of the cler- gymen should be .in the king's court, an undoubted innovation. So of the next, that there should be no excommunication of any of the king's principal tenants or officers without application to him, which, of course, deprived the church of its only weapon of defence against the greatest plunderers of the age, and was also an undoubted innovation on the ancient law, which left the bishops full power of excommunication. Two other articles were di- rected against appeals to the see of Kome, and another gave the king's courts jurisdiction in various ecclesiastical matters, advowsons, etc. The archbish- ops, not at first apparently understanding them, signed the Constitutions; but the pope disallowed most of them, and the archbishop then resisted. It may be of interest to present the archbishop's view of the question, conveyed in a letter to the king : " Ecclesia Dei in duobus constat ordinibus, clero et populo. In clero sunt apostoli, apostoliciviri ; episcopi, et coeteri doctores ecclesise, quibus cummiasa est cura et regnum ipsius ecclesise : qui tractare habent negotia ecclesiastica : ut totium reducatur ad salutem animarum. In opulo sunt reges, principes, duces, comites, et alise potestatcs, qui ssecularia labent tractare negotia, ut totam reducant ad pacem et unitatem ecclesise. Et quia certum est reges poteatatem suam accipere ab ecclesia, non ipsum ab illissed a Christo, ut salvft pace vestS, loquar non habetis episcopis prseci- pere, absolvera aliquem, vel excommunicare, trahere clericos ad ssecularia examina, judicare de ecclesiis ne decimis, interdicere episcopis ne tractent causas de transgressione fidei, vel juramenta, et inulta in hunc modum, quse acripta, inter consuetudines vestras quaa dicitis avitus" (Epi. St. Thomce Cmsl. Ep., lib. i., Ep. 6). This, too, accords with the law as afterwards laid down by Braoton. I CHAP, II.] ECCLESIASTICAL CONSTITUTIONS. 321 to_ be accused, unless by certain and legal accusers and witnesses, in presence of the bishop, so as that the archdeacon may not lose his right, nor anything which should thereby accrue to him ; and if the offending per- sons be such as none will or dare accuse them, the sheriff, being thereto required by the bishop, shall swear twelve lawful men of the vicinage or town before the bishop, to declare the truth according to their conscience. 11th, Archbishops, bishops, and all dignified clergymen,^ who hold of the king and chief, have their possessions from the king as a barony, and answer thereupon to the king's justices and officers, and follow and perform all royal customs and rights, and, like other barons, ought to be present at the trials of the king's, court, with the barons, till the judgment proceeds to loss of members, or death. 13th, If any nobleman of the realm shall forcibly resist the archbishop, bishop, or archdeacon, in doing jus- tice upon him or his, the king ought to bring them to justice ; and if any shall forcibly resist the king in his judicature, the archbishops, bishops, and archdeacons ought to bring him to justice, that he may make satis- faction to our lord the king. 14th, The chattels of those who are under forfeiture to the king, ought not to be de- tained in any church or churchyard against the king's justice, because they belong to the king, whether they are found within churches, or without. 16th, The sons of villeins ought not to be ordained without the consent of their lords, in whose lands they are known to have been born. _ Thus was the pope pleased to tolerate such of these ar- ticles as either did not at all affect the clerical state, or rather contributed to aid and support it ; and were thrown in, probably, to qualify and temper those which were evi- dently hostile to the ecclesiastical sovereignty. The ten which were condemned by the pope, were as follows : The 1st, If any dispute shall arise concerning the ad- vowson and presentation of churches between laymen, or between ecclesiastics and laymen, or between ecclesiastics, let it be tried and determined in the court of our lord the king. 3d, Ecclesiastics charged and accused of any mat- ter, and being summoned by the king's justice, shall eome ' So umiverscB personcB is construed hj Lord Littleton in his Hen. II., vol. iv., 370. V 322 WILLIAM I. TO HBNKY II. [CHAP. II. into his court to answer there concerning that which it shall appear to the king's court is cognizable there ; and shall answer in the ecclesiastical court concerning that which it shall appear is cognizable there ; so that the king's justice shall send to the court of holy church, to see in what manner the cause shall be tried there ; and if an ecclesiastic shall be convicted, or confess his crime, the church ought not any longer to give him protection. 4th, It is unlawful for archbishops, bishops, or any dignified clergymen of the realm, to go out of the realm without the king's license ; and if they go, they shall, if it so please the king, give security that they will not, either in going, staying, or returning, procure any evil or dam- age to the king or kingdom. 5th, Persons excommuni- cated ought not to give any security by way of deposit, nor take any oath, but only find gage and pledge to stand to the judgment of the church, in order to absolution. 7th, No tenant in capite of the king, nor any of the officers of his household, or of his demesne, shall be excommuni- cated ; nor shall the lands of any of them be put under an interdict, unless application shall first have been made to our lord the king, if he be in the kingdom, and if not, to his justice, that he may do right concerning such person ; and in such manner, as that which shall belong to the king's court shall be there determined, and what shall belong to the ecclesiastical court shall be sent thither to be there determined. 8th, Concerning appeals, if any shall arise, they ought to proceed from the archdeacon to the bishop, and from the bishop to the archbishop : and if the archbishop shall fail in doing justice, the cause shall at last be brought to our lord the king, that, by his precept, the dispute may be determined in the archbishop's court ; so that it ought not to proceed any further without the king's consent. 9th, If there shall arise any dispute between an ecclesiastic and a layman, or between a layman and an ecclesiastic, about any tene- ment which the ecclesiastic pretends to hold in deemosynS, and the layman pretends to be a lay fee, it shall be deter- mined by the judgment of the king's chief justice, upon a recognition of twelve lawful men, ulrum knemmtwm, sit pertinens ad eleemosynam, me ad fmdum laieum. And if it be found to be in eleemosynd, then it shall be pleaded in the ■ ecclesiastical court ; but if a lay fee, then in the CHAP. 11.] ECCLESIASTICAL CONSTITUTIONS. 323 king's court, unless both parties claim to hold of the same bishop or baron ; and if they do, then the plea shall be in his court ; provided, that by such recognition, the party who was first seized shall not lose his seisin till the plea has been finally determined. 10th, Whosoever is of any city, or castle, or borough, or demesne manor of our lord the king, if he shall be. cited by the archdeacon or bishop for any offence, and shall refuse to answer to such citation, may be put under an interdict; but he ought not to be excommunicated till the king's chief oflacer of the town be applied to, that he may, by due course of law, compel him to answer accordingly; and if the king's offi- cer shall fail therein, such officer shall be in misericordid regis; and then the bishop may compel the person accused by ecclesiastical justice. 12th, Pleas of debt, quce fde in- terpositd debentur, vel absque interpositione fdei, whether due by faith solemnly pledged, or without faith so pledged, belong to the king's judicature. 15th, "When an arch- bishopric, or bishopric, or abbey, or priory of royal foun- dation, shall be vacant, it ought to be in the hands of the king, and he shall receive all the rents and issues thereof, as of his demesne. And when such church is to be filled, the king ought to send for the principal clergy thereof, and the election ought to be made in the king's chapel, with the king's assent, and the advice of such of the prel- ates of the kingdom as he shall call for that purpose ; * and the person elect shall there do homage and fealty to the king as his liege lord, of life, limb, and worldly honor (saving his order), before he be consecrated.'' These Constitutions were calculated to give a rational limitation to the secular and ecclesiastical judicature; and furnished a basis on which these separate jurisdictions might have been founded, without any inconvenience to the nation, or diminution of the temporal authority ; and they were with that view confirmed, a.d, 1176, at a coun- cil held at Northampton (a). But the king, overcome (a) As to this, the author was in error. Before the council, the king had written to the pope, promising to withdraw any customs hostile to the liber- ' Debet fieri ekctio assensu domini regis, et consiUo personarum regni quas ad hoe /(mendum voeaverit, * Vide'Wilk., Ang.-Sax. Leg., p. 321, and also in Litt. Hen. II., vol. iv., 414, a copy of these Constitutions from the Cottonian manuscript of Becket's Life and Epistles, which is probably the most ancient and correct copy of them. 324 WILLIAM I. TO HENRY II. [CHAP. II. with shame for the murder of Becket, with which he was charged, and struck with a panic of superstition, gave way ties of his clergy, and to allow freedom of canonical election {Hoved., 302 ; Ep. S. Tho. ii., 119, 122, 289). At the council of Northampton, the four points above mentioned were granted or conceded to the church as declara- tory enactments, but nothing is said as to the confirmation of the constitu- tions of Clarendon, which would have been grossly inconsistent with the king's promise of withdrawal, made just before. It is, indeed, stated by Gervase that the assize of Clarendon was ordered to be enforced, but that was quite different from the e&nstitviions of Clarendon ; it was the code of instructions to the itinerant justices, and is given by Hoveden (413) in his account of the council of Northampton, and is quoted by our author towards the end of the chapter. (The council of Northampton was in 1171.) On the other hand, it does not appear that at this council the constitutions of Clarendon were expressly repealed, and Dr. Lingard says of the previous interval which had elapsed : " During the interval, the constitutions of Clar- endon, though still unrepealed, were not enforced" {Hist. Eng., v. ii., p. 97). In the absence of any express repeal, they would remain, and their force and effect would depend either upon their original validity, or upon their subsequent adoption into the customary or unwritten law of the realm. As to the first, it seems certain, from the accounts of all historians, that coercion, by bodily terror, was used by the king 'upon the prelates, and that is quite enough to destroy the statutory authority of these constitutions. But it is not so clear that a great deal of them were not subsequently, by actual use and adoption, incorporated in the customary or unwritten law of the realm. For the present, it seems sufficient to point out that there was not any confir- mation at the council of Northampton. One of the most important points in our legal history, upon which, it will be observed, our author throws but little light, is, whether, or how far, these celebrated constitutions are to be regarded as law. Of course, if they really were freely agreed to by king, by lord.s, and by prelates — i. e., by a majority of them, present at a lawful council or assembly, lawfully convened by the sovereign for the purpose of legislation, and freely and really exercising their functions as legislators, they would substantially be statutory enactments ; but if, on the contrary, the "council" was only an assembly of barons, under the influence of the king, to which the prelates were compnlsorily called, not to consider freely, as legislators, but to be coerced to consent to ordinances predetermined, and forced upon them by the royal power, there would be nothing legislative in them ; they would be the mere edicts of a tyrant. That threats and coercion were used, all historians agree, and therefore it seems idle to treat these con- stitutions as " statutes," in the proper sense of the term ; and the very fact that the king seems to have sought a confirmation of some of them at the council of Northampton shows his consciousness that they were not so, for, if already laws, or legal statutes, they would require no confirmation, added to which, it is stated by the author, in accordance with all histories, that the king at all events professed to withdraw them, which, again, he could not do if they were legal statutes. On the other hand, it is clear that although, if they were not legal statutes strictly, they would not require to be repealed, since they had no legal existence ; it would be natural, and practically nec- essary, since the king had eaid they were statutes, that he should publicly withdraw them. It should seem that, in the absence either of any express confirmation, or any express adoption at the council of Northampton, they remained unrepealed and unconfirmed ; and therefore that (their original in- validity being clear) their actual validity would depend upon the extent to which they were subsequently adopted by use and custom into the law of CHAP. II.] ECCLESIASTICAL CONSTITUTIONS*. 325 to the torrent, and endeavored to reconcile himself to the holy see by an ample concurrence with all its demands ; — » the land. And such seems to have been Hale's view, for, having mentioned them as acts of parliament before the time of legal memory, he says: "Of these, as we have no authentic records, but only transcripts in ancient his- torians, or other books, they obtain at this day no further than as by usage and custom they are, as it were, engrafted into the body of the common law, and made a part thereof" (Hist. Com. Law, p. 7). This seems to be the sound conclusion, for another reason, that, if these constitutions were to be taken as statutes of the realm, in full force, there would have been nothing left to enact at the era of the separation from Rome, since their clear effect was to render the king absolute. All appeals to Bome were abolished, save at his will and pleasure, and he would have entirely in his power the whole episco- pate of the realm. And the only two really effective modes in which the Roman supremacy could be exercised would be by the power of appeal and the control over the episcopate. Yet it never occurred to any one in the reign of Henry VIII. that all this had already been done by statute, centu- ries before. And, on the other hand, we know that, in the meantime, during the whole of that long interval, the Roman See had exercised its appellate jurisdiction, and its control over the episcopate. On the other hand, we also know that, during that long interval, without any other statutory enactment, certain parts of the law were altered, and in accordance with these constitu- tions of Clarendon. Thus, for instance, clerks became subject to secular jurisdiction, though privilege of clergy remained to our own age. This could not be by the constitutions, for in the council of Northampton, that article had been implicitly repealed {vide ante) by a contrary enactment. It could, therefore, only have been by usage insensibly growing up, in accord- ance with the general feeling of the country ; and as the administration of justice improved, there would of course be no reason for the maintenance of the privilege, which only rested on the barbarous character of the crimi- nal procedure of that age. It will be observed that Henry II. had also ex- pressly enacted at the council of Northampton that clerks should not be subject to the duel, and we also know that after the reign of John the ordeal became obsolete. After this era it would be natural that the clerical exemp- tion from secular jurisdiction should also die out. That it was the law, however, there can be no doubt, and this may be the most fitting place to present such passages from the Mirror of Justice (a work completed after this period) as serve to illustrate what the law was virtually taken to be after this period upon the points in controversy. This will show how far these celebrated constitutions had been actually incorporated by use and adoption into the common law or custom of the realm. First, as to the subject just referred to, exemption of ecclesiastical persons or property from the juris- diction of the lay tribunals. Treating of exceptions, the Mirror says : " One as to the power of the judge, and that may be by reason of the two kinds of jurisdictions, or because the king or his judge hath no power in the cause, as it is of the person of a clerk, by reason of the privileges of the church " (c. iii., 8.3). So, in the next section, of exception of clergy: "For the privilege of clergy — as, if a clerk be ordered in court before a lay judge to answer to an action for a personal mishap, and especially in a case criminal and mortal, plead that he is a clerk, the judge hath no further cognizance of the cause, for the church is so enfranchised that no lay judge can have jurisdiction over a clerk. Nevertheless, to give actions to plaintiffs against accessories in appeals and indictments, it belongeth to the judge to inquire, by the oaths of honest men, in the presence of the clerk, whether he be guilty or not, and if he be guilty, then to be delivered to his ordinary " (16., s. 28 326 WILLIAM I. TO HENRY H. [CHAP. II. at least he desisted from executing those laws for which he had so many years been contending. It appears, more- 4 4). It is, indeed, added in the next section tliat the privilege might be re- butted by proof that the clerk had forfeited it by what was called " bigamy" — i. e., by marrying a widow, or too many wives, a curious relic of the old Saxon law which allowed priests to enter into marriage ; for, although it is explained that in a clerk, who could only marry once, the offence of bigamy was committed as well by marrying twice, or by marrying a widow, as by marrying more women than one, it is implied that there would be no loss of privilege merely by his being married. This seems to refer the passage to the Saxon age, because after the Conquest a stricter discipline was introduced, and priests were not alldwed to marry ; but then, in that view, it only makes the case stronger and clearer in favor of the archbishop in his great contest with Henry II., because it shows that, from the Saxon times, clerks had been privileged, which, indeed, has already been shown from the Saxon laws. So much as to personal exemptions of clerks from lay jurisdiction. Then, as to ecclesiastical rights, as advowsons, patronage of episcopal bishoprics or benefices, and the like, it is to be observed that in the Mirror, in a chapter which mentions Edward I., and therefore was composed or edited long after the period now in question, all the branches or heads of royal rights or juris- diction being mentioned, there is no mention of bishoprics (c. i., s. 3]. And BO, in a subsequent section expounding the nature of legal jurisdiction, it is confined to matters of a secular nature (c. iv., s. 3). On the other hanii in the "Treatise of Glanville," written at the end of the reign of Henry II., there is a book upon " ecclesiastical advowsons" (lib. iii.), which he treats of as decided in the king's courts. But then this only refers to the right of patronage, and it is stated that if the clerk admitted the claimant to be patron, and claimed to have been instituted upon his presentation, and that was de- nied, it was to be decided before the ecclesiastical judge (c. ix.). And if the clerk named another party as patron, who appeared, and disclaimed, then, again, the suit would cease in the king's court, and be dismissed between the patron and the clerk in the ecclesiastical court. In short, questions as to patronage were deemed to pertain to the king's court : questions as to institution, or presentation, to the ecclesiastical court. In other words, questions between patrons would be tried in the king's court, and questions between patron and clerk in the ecclesiastical court. It is further stated that, in case of vacancy, and default of the patron to present, the presentation fell into the hands of the king. If the party under whom the clerk claimed pressed his claim to the patronage, and was defeated, then in the king's court nothing more could be done in the matter ; but the patron who had recovered the right of ad- vowson could proceed against the clerk in the ecclesiastical court before the bishop, with this restriction, that if at the time of presentation the parson presenting was considered to be patron, the clerk should continue to hold. For (says Glanville) upon this subject a statute was passed in the reign of the_ present king (Henry II.) concerning those clerks who have obtained livings upon the presentation of patrons, or have, in time of war, violently intruded themselves into ecclesiastical advowsons, and, by such statute, it is provided that clerks thus presented should not lose their churches during their lives (Ibid., c. x.). Elsewhere it is laid down, " that, according to the custom of the realm, no one is bound to answer in his lord's court concerning his freehold, without the king's precept. But if the plea should be between two clerks concerning a tenement-hold in frankalmoigne of an ecclesiastical fee, or if the tenant, a clerk, hold an ecclesiastical fee in frankalmoigne, whoever may be claimant, the plea concerning the right ought to be in the ecclesiastical court, unless a question should arise whether the fee be eccle- CHAP. II.] ECCLESIASTICAL CONSTITUTIOITS. 327 over, from a letter which he sent to the pope by the hand of Hugo Petrileo, the legate, that, notwithstanding the oppo- sition of the greatest and vyisest men in his kingdom, he had,>t the intercession of the legate, and out of reverence and ' devotion to the see of Rome, made the following conces- sions : That no clerk should, for the future, be brought personally before a secular judge for any crime or trans- gression ' whatsoever, except only for offences against the forest laws, or in case of a lay fee for which lay service was due to the king, or to some other secular person. He promised that any person convicted, or making confession before his justice, in the presence of the bishop, or his of- ficial, of having knowingly and premeditatedly killed a clerk, should, besides the usual punishment for killing a layman, forfeit all his land of inheritance for ever.^ He also promised, that clerks should not be compelled to sub- mit to the trial by duel ; and moreover, he promised not to retain in his hands vacant bishoprics or abbeys beyond ^e term of one year, unless from urgent necessity, and evident cause of delay, not falsely pretended.* It is said,* that Henry, by charter, granted to the clergy the cogni- zance of causes matrimonial ; but neither this nor any other of the foregoing concessions were enacted by author- ity of parliament, during any part of this king's reign ; nor did he himself observe them, except in not compellmg criminal clerks to appear before a lay judge, as before stip- ulated, and in exempting them in all cases from the trial Biastical or lay" (lib. xiii., c. xxv.), which, it is afterwards said, is to be decided in the king's court (c. x., s. 3). But before the statute of Westminster II., Lord Coke says, "no jwia virrnn, lay for one parson against another, because it was, in that case, the right of the church" (2 Inst., 407). Thus, then, it came to this, that questions of right between laymen were decided in the king's courts ; questions between laymen and clergymen, or between clergy- men on matters ecclesiastical, were tried in the ecclesiastical courts. With regard to the bishoprics, it need hardly be observed that, as the question then would be between the king and the pope, they could not come into the king's courts ; and though, according to analogy, those questions would be determin- able in the papal courts, yet it is equally obvious that, as the pope could not enforce his decision except by excommunication, the extent to which it was regarded would virtually depend upon the extent to which the king could safely disregard it — i. e., in the opinion of the age. ' De aliquo foris-facio. ' What extraordinary penalty was this, when laymen, at that time, forfeited their lands in cases of felony ? ' Wilk., Leg. Ang.-Sax., p. 381 ; Litt. Hist. Hen. II., vol. iv., pp. 265, 296. * Sir Eoger Owen MSS., p. 397. 328 WILLIAM I. TO HENRY II. [CHAP. II. by duel. The statutes of Clarendon concerning ecclesi- astical matters subsisted unrepealed and confirmed ; but were suspended in part by a temporary connivance of the executive power.* The establishment which the clergy gained in this reign was not weakened in those of his successors, Richard I. was redeemed from his 'captivity by the aid of his sub- jects ; among whom the zeal of the ecclesiastics, who readily converted their plate and other valuables to the ransom of their king, was particularly distinguished. This gave them everything to hope from the king's grati- tude ; nor were they disappointed in their expectations. The feudal subjection under which John laid his king- dom to the pope, ratified every clerical innovation, and seemed to justify the distinctions before claimed by the churchmen. In this manner did the influence'T)f the civil and canon law gradually increase ; but these laws were not confined to the ecclesiastical courts, where they were professedly the only rules of decision : they, by degrees, interwove themselves into the municipal law, and mrnished it with helps towards improving its native stock. The law of personal property was in a great measure borrowed from the imperial, and the rules of the descent of lands wholly from the canon law : to these might be added many other instances of imitation, too long to be enumerated in the present work. These two laws, as the Norman had before, obtained here by sufferance and long usage. Such parts of them as were fitting and expedient, were quietly permitted to frow into practice ; while such as were of an extravagant ind occasioned clamor, were called usurpations, and,va8 such, were strongly opposed. "What was suffered to es- tablish itself, either in the clerical courts, or by mingling with the secular customs, became so far part of the com- mon law of the realm, equally with the Norman ; for though of later birth, it had gained its authority by the same title, a length of immemorial prescription.^ ' Sir Eoger Owen says the king obtained a parliamentary repeal of the constitutions of Clarendon. — MSB., p. 404. ' This is aU that I thought necessary to state concerning the prevalence of the civil and canon law, and the influence they both had upon the com- mon custom of the realm ; and I have heard no complaint, as in the case of CHAP. II.] TRIAL BY DUEL. 829 It had been a very ancient custom among the I^ormans, both in their own country and in France, to 0,4^;^,^ ^^^i try titles to land, and other questions, by dud. moiviiqueB- When "William had ordained that this martial '°°°" practice of his own country should he observed here in criminal trials, it became very easy to introduce it into civil ones ; and being only used in the curia regis, it had not, amon^ the other novelties of that court, as it cer- tainly would have had in the county court, or any other of the ancient tribunes of Saxon original, the appearance of so singular an innovation. With all its absurdity, this mode of trial was not with- feuds, that thia part of the work is at all defective ; indeed, I should not wonder if some thought even this short sketch too prolix, so much are our studies and opinions directed by fashion. But it seems to me, if the illus^ tration of our ancient law had been the sole object of attention, and not a prepossession in favor of a topic that happened to be in vogue, that the same censure would be at least as applicable in one as in the other case. A comparison of our law with those two systems of jurisprudence, would, in my mind, be an inquiry of equal curiosity, and much more to the pur- pose of a history of the English law, than the same process when applied to the so-much-admired systems of foreign feuds. This is sufficiently evinced by the cursory remarks already made respecting these two laws. It further appears by the works of Glanville, Bracton, and other old authors, who certainly wrote the law of their time, and not their own inventions, as has been too often and too inconsiderately said ; and it is confirmed by marks of conformity, or imitation, in instances where no suspicion of fabrication was ever entertained. The civil and canon law seem in a particular manner to be objects of curiosity to an English lawyer ; they have long been domesticated in thia country ; were taught at our universities as a part of a learned education, and the road to academic honors ; they have entered into competition with the common law ; and, though unsuccessful in the struggle, were still thought worthy to be retained in our ecclesiastical courts, and there became the model by which our national canons and provincial constitutions were framed. These two laws, therefore, stand in a much nearer relation to the common law than the feudal law of Lombardy, or of any foreign _ country ; none of which can boast any pretensions equal to those above mentioned. Notwithstanding this close affinity between the civil and canon law and our own, I thought, that to enter into a particular comparison of such parts of those laws as seemed more remarkably to relate to the common law, was an inquiry not strictly within the compass of the present History; and tbere- fore I declined it, for reasons similar to those I have before given with re- gard to foreign fends. I cannot, however, leave this subject without expressing a wish, that the early connection of our law with the civil and canon law was more fully investigated than it has yet been. The history and present state of those two laws in this country, and of our own national canon law, seem also to have been not yet sufficiently developed. To this it may be answered, that there is at least as great want of curiosity upon this topic as of information ; and I am sure I do not pretend to determine which of these is the cause, and which the effect, of the other. 28* 330 WILLIAM I. TO HENRY II. [CHAP. II. out some marks of a rational reliance on testimony, and vouchers for the truth of what was in dispute ; for it w'as never awarded without the oath of a credible witness, who would venture his life in the duel for the truth of what he swore. " I. am ready," says the party litigant, " to prove it by my freeman John, whom his father on his death-bed enjoined, by the duty he owed him, that if at any time he should hear of a suit for this land, he should hazard himself in a duel for it, as for that which his father had seen and heard." ^ Thus the champion of the demand- ant was such a one as might be a fit witness ; and on that account the,^demandant could never engage iai the combat himself ; but the other party, who was defendant, or ten- ant 'in the suit, might engage either in his own person or by that' of another. It is difiicult to say what matters were, at one time, submitted to this mode of trial {a). Perhaps at first all (a) If the author had read the Mkror, he would have found a full ezpo- Bition of the matter: "There are many modes of proof; sometimes by records ; sometimes by battle ; sometimes by witnesses." Then as to trial by battle, the proof of felony and other causes is done by combat of two according to the diversities of actions; for as there is a personal action and a real, there is a personal combat and a real; personal in personal actions, real in real actions. And these combats are different in this, that in a personal combat for felony, none can combat for another ; but in actions personal and venial, it is lawful for the plaintiffs to make their battles by their bodies, or by loyal witnesses, as in the writ of right real combats — because none can be witness for himself, and no one is bound to discover hia real right ; and though they make their combats for the plaintiffs by wit- nesses, the defendants may defend their own right by their own bodies, or the bodies of their freemen. And in appeals none can combat for another; but it is otherwise in real actions. The battle of two men sufficeth to declare the truth, so that victory is holden for truth. Combats are made in many other cases than felonies ; for if a man hath done any falsity in deed or in word, whereof he is impeached, and he deny it, it is lawful for one to prove the action, either by jury, or by the body of one witness" — i. e., by battle. And it may be observed here, that trial by jury here plainly means trialby witnesses — as there is no previous mention of jurors otherwise than as witnesses ; and at first, jurors were witnesses, whence it followed that if there were no witnesses, there could be no trial by jury ; and hence the diffi- culty arose, to meet which, the trial by battle or by ordeal was resorted to. "And in oases, where battle could not be joined, nor was there any witnesses, the people in personal actions were to help themselves by the mirade of God, in this manner; as, if the defendant were a woman," etc. (Ibid.). ' Ariosto, in the true spirit of the old jurisprudence, as well as of chivalry, makes Binaldo refer to the proof by arms, as equal to if not stronger than that by testimony : Col testimonio, io vo', ehe Parme aieno: Che ora, e in ogni tempo, che ti piaee, Te n'abbiano afar prova pin veraee. Orl. Fur., cant. 31, stanz. 102. CHAP. II.] TRIAL BY JURY. 331 questions of fact might, at the option of the demandant, have been tried by duel. . In the reign of Henry II. it was decisive in pleas concerning freehold ; in writs of right ; in warranty of land, or of goods sold ; debts upon mortga^eor promise; sureties denying their suretyship; the validity of charters ; the manumission of a villein ; questions concerning service : all these might have been tried by duel.^ Notwithstanding the general bent of this people to ad- mit the propriety of a trial so suitable to their martial genius, there must have been men of gravity and learning amongst them at all times ; and persons of that character would always reprobate so ineffectual and cruel a proceed- ing. Considerations of this kind at last effected a change. We find in the reign of Henry II. that many questions of fact relating to property were tried by ofwaiby twelve liheros et legates homines juratos, sworn to ^'''^• speak the truth ; who were summoned by the sheriff for that purpose. This tribunal was in some cases called assisa, from assidere, as it is said, because they sat together; though it is most probable, and indeed seems intimated by the manner in which Glanville often expresses himself, that it was emphatically so called from the assisa (as laws were then termed), by which the application of this trial was, in many instances, ordained. On other occasions this trial was called jurata, from the juratos, or juratores, who composed it. Of the origin of this trial by twelve jurors, and the introduction of it into this country, we shall next inquire. The trial per duodedm juratos, called nambda, had ob- tained among the Scandinavians at a very early period ; but having gone into disuse, was revived, and more firmly established by a law of Beignerus, surnamed Lodbrog, about the year a. d. 820.^ It was about seventy years after this law, that Eollo led his people into Normandy, and, among other customs, carried with him this method of trial ; it was used there in all causes that were of small impor- tance. When the Normans had transplanted themselves into England, they were desirous of legitimating this, as they did other parts of their jurisprudence ; and they endeavored to substitute it in the place of the Saxon » Glanv., passim. ' Hick., Tlies. Diss., Epist. 38-40. 332 WILLIAM I. TO HENRY II. [CHAP. II. seeiatores, to which tribunal it bore some show of affin- ity (a). The earliest mention we find of anything like a jury, was in the reign of "William the Conqueror, in a cause upon a question of land, where Gundulph, Bishop of Mochester, was a party. The king had referred it to the county, that is, to the seetatores,to determine in their county courts, as the course then was, according to the Saxon establishment ; and the secfatores gave their opinion of the matter. But Odo, Bishop of Bayeux, who presided at the hearing of the cause, not satisfied with their determina- tion, directed, that if they were still confident that they spoke truth, and persisted in the same opinion, they should choose tmelve from among themselves, who should confirm it upon their oaths^ (b). It seems as if the bishop had here (a) " There are scarcely any authentic materials for its early history. It seems most probably to have arisen from the confluence of several causes. Perhaps the first conception of it may have been suggested by the very simple expedient of referring a cause by the county court to a select com- mittee of their number, who were required to be twelve, for no reason or even cause that has been discovered. In civil cases, the obvious analogy of arbitration might have contributed to the adopting of juries. Judges, un- acquainted with, and incapable of a patient inquiry into facts, might find it safer, as it was easier, to trust to a sort of general testimony given by twelve unexceptionable neighbors, on the litigated question. There are many traces in this institution which indicate that jurors must, in some manner, have been regarded in the same light with witnesses. Neighborhood, for instance, which might be dangerous to the impartiality of a judge, is advantageous to the knowledge of a witness ; and it is still a sort of legal theory, that jurors have the dangerous power of finding a verdict from their own knowledge" (Mackintosh's History of England, vol. i., p. 273). (6) It has already been seen that the author is entirely in error on this subject, and that before' the Norman Conquest, trial by juries — that is, by a number of the freeholders or suitors of the county, sworn from among the rest, to declare the truth according to their knowledge of it — was used DOth in civil and criminal cases. It may not have been always by twelve jurors, though it appears plainly that juries in criminal cases consisted of twelve in the time of Alfred; and the number twelve is so often mentioned in the Saxon laws, that there is reason to believe that the juries were so constituted both in civil and criminal cases. But it would appear that even in criminal cases it was not a fixed practice to have juries ; as in criminal cases there were other modes of trial, and in civil cases the county might or might not have recourse to it. That which the author failed to understand was that the suitors were the judges of the court, and that they used various modes of assisting themselves in their determination, among others, trial by jury ; the jurors of cases being in those days not judges, but witnesses. It fol- lowed, that if it happened that no suitors had any knowledge of the matter, there could be no jurors ; foE.jurorswer e ^ s worn to declare the truth of tbeir own knowledge. Hence, in criminal cases, ffie^etSjrto'ffiS'oraeaii^^ ^ Text. Boff. apud Hickes, ut mp. CHAP. II.] TRIAL BY JURY. 333 taken a step which, was not in the usual way of proceed- ing, but which he ventured upon in conformity with the practice of his own country ; the general law of England being, that a judicial inquiry concerning a fact should be collected per omnes comitatus probos homines (a). Thus it ap- pears, that in a cause where this same Odo was one party, and Archbishop Lanfranc the other, the king directed TOTUM comitatum considere ; that all men of the county, as well Trench as English, (particularly the latter) that were learned in the law and custom of the realm, should be convened: upon which they all met at Pinendena, and there it was determined ab omnibus illis probis, and agreed and adjudged d, toto comitatu. In the reign of "William Rufns, in a cause between the monastery of Qroyland and Evan Talbois, in the county court, there is no mention of a jury ; and so late as the reign of Stephen, in a cause be- tween the monks of Christ-Church, Canterbury, and Ba- dulph Picot, it appears from the acts of the court,' "that it was determined per judicium totius comitatus.^ This tria,l by .an indefinite number of sectatores or suitors of court (b) continued for many years after the Conquest : abaence of jurors, or compurgators ; hence, in civil cases, the care taken to provide jurors by having witnesses for all transactions, who might after- wards be jurors. Hence, also, in cases where, from their nature, there could not be certain personal knowledge, or only from uncertain memory, as in cases of claims of land, resting on past events, at some distance of time ; suits in the county court would be determined more by clamor or partisan- bMp, than by evidence or consideration. (a) And it is one of the most curious instances of the extreme antiquity of judicial forms of expression, and the evidence they afford of ancient usages, that nntil recently the phrase used as to trial by jury in civil cases (and it still is so in criminal cases), was, that the party put himself upon the country —i. e., the county, or the men of the county. This is a relic of that ancient jurisdiction of the county court, out of which, by a course of change which has been amply described, the trial by jury arose. And when the jury was first used, as the general body of the freeholders, the suitors were the judges, and the jurors were only witnesses ; the record would continue to state that the case was determined .by the men of the county. The author failed to observe this, and hence draws a totally wrong inference from the fact that the records so state it. As it did so in cases where there are known to have been juries, of course it affords no evidence that juries were not used even where the fact is not known. (b) Here, again, we observe that the author had fallen into some confusion upon the subject. The suitors did not try the cases, they were the judges, and they resorted to various modes of trial ; of which trial by jurors was one — the jurors being any of their own body who had knowledge of the matter, and were sworn to declare the truth about it. Hence trial by jurors did not, as the author supposes, exclude the suitors, and was for ages used at county courts. ' Bib. Ck)tt. Faustina, A. 3, 11, 31. ' Hickes, Thes. Diss., Ep. 36. 334 ' WILLIAM I. TO HBNKY II. [CHAP. II. these are the persons meant by the terms pares euri(B,aTii judicium parium, so often found in writings of this period. Successive attempts gradually introduced jurors to the exclusion of the sectaiores (a) ; and a variety of practice, no doubt, prevailed till the Norman law was thoroughly es- tablished.^ It was not till the reign of Henry II. that the trial by jurors became general ; and by that time, the king's itinerant courts, in which there were no pares curiae (6), had attracted so many of the county causes, that the sectatores were rarely called into action.* The sudden progress then made in bringing this trial Of trial by i^to commou use, must be attributed to the the assize, ig^^^^y gnactcd by that king. As this law has not come down to us, we are ignorant at what part of his reign it was passed, and what was the precise ex- tent of its regulation : we can t)nly collect such intima- tion as is given us by contemporary authorities, the chief of which is Glanville, who makes frequent allusion to it. It is called by him assisa, as all laws then were, and regalis constitutio ; at other times, regale quoddam benejfkium, clem- entid principis de coneilio procerum. popvlis indvltum. It seems as if this law ordained, that all questions of seisin of land should be tried by a recognition of twelve good and law- ful men, sworn to speak the truth ; and also that in ques- tions of right to land, the tenant might elect to have the matter tried by twelve good and lawful knights instead of the duel. It appears that some incidental points in a cause, that were neither questions of mere right, nor of seisin of land, were tried by a recognition of twelve men ; and we find that in all these cases, the proceeding was called per /issisam, and per recognitionem ; and the persons (a) JurotB did not exclude the Buitors; the suitors were judges, the jurors iritnessea. (6) What the author means is, that the suitors as judges were superseded by the king's justices, who still held their courts in the counties, and either in the old county court assemblies, or at special assemblies of the counties, and by the king's commissions. So enduring is custom, and so closely did the people cling to the idea that the body of the freeholders were judges, that it was not until the reign of Bichard II. they were actually excluaed from the bench where the king's justices sat. ' The following law of Henry I. seems to be in support of the ancient usage : Vmisquiiqae PER PARES suos judicandm est, el ^usdem promneuB ; peregrina virojudieia modis omnibus mbmovemvx. Leg., 31. * Persons of a new character, under the name of seeta, and sectatores, in a subsequent period, made a necessary part of most actions brought in the king's courts, as will be seen hereafter. CHAP. II.] TRIAL BY THE ASSIZE. 335 composing it were called. juratores,jurati,recognitores assises; and collectively assisa^ and recognitio : only the twelve ju- rors in questions of right were distinguished with the ap- pellation of magna assisa; probably because they were knights, and were brought together also with more cere- mony, being not summoned immediately by the sheriff, as the others were, but elected by four knights, who for that purpose had been before summoned by the sheriff. We are also told, that the law by which these proceedings were directed, had ordained a very heavy penalty on jurors who were convicted of having sworn falsely in any of the above instances.' Thus far of one species of this trial by twelve men, which was called assisa. It likewise appears, that the oath of twelve jurors was resorted to in other instances than those provided for by this famous law of Henry II., and then this proceeding was said to be per juratam patrice, or vidneti, per inquisitionem, per juramentum legalium kominum. This proceeding by jury was no other than that which we before mentioned to have gained ground by usage and custom. This was sometimes used in questions of prop- erty; but it should seem more frequently in matters of a criminal nature. The earliest mention of a trial by jury, that bears a near resemblance to that which this proceeding became in after times, is in the Constitutions of Clarendon, before spoken of. It is there directed, that, should nobody ap- pear to accuse an offender before the archdeacon, then the sheriff, at -the request of the hishoTp, faciei jurare duodeeim legales homines de vicineto, seu de villd qvbd inde veritatem se- cundum conscienUam suam manifestabuntj' The first notice of any recognition, or assise, is likewise in these Constitu- tions ; where it is directed, that, should a question arise, whether land was lay or ecclesiastical property, recogni- tione duodecim legalium hominum, per capitalis justitioe cansider- ationem, terminabitur, utrkm, etc. ;^ this was a. d. 1164. Again, in the statute of Iforthampton, a. d. 1176 (which is said to be a republication of some statutes made at Clarendon, perhaps at the same time the before-mentioned provisions were made about ecclesiastical matters), the justices are directed, in case a lord should deny to the ' Glanv., lib. 13, c. 1 ; Ub. 2, c. 7, 19. » Ch. 6. » Ch. 9. WILLIAM I. TO HENRY II. [CHAP. II. heir the seisin of his deceased ancestor, faeiant inde fieri re- cognitionem. per duodedm legates homines, qualem seisinam de- functus inde habuit die qudjuit vivus et mortuus; and also fad- ant fieri recogniUonem de dissddnis fxcUs super assisam, tempore quo the king came into England, after the peace made be- tween him and his son. We see here, very plainly de- scribed, three of the assizes of which so much will be said hereafter ; the assisa utrum fcedum sit laieum an ecdesiasti- cum ; the assisa mortis antecessoris ; and the assisa novce dis- seisinxB. Again, in the statute of Northampton there is mention of a person redatus de murdro per sacramentum duo- dedm militum de hundredo, and per sacramentum duodedm liberorum legalium hominum. Thus have we endeavored to trace the origin and his- tory of the trial by twelve men sworn to speak the truth, down to the time of Glanville : a further account of it we shall defer, till we come to speak more minutely of the pro- ceedings of courts at this time. J Another novelty introduced by the Normans, was the practice of making deeds with seals of wax and other ceremonies.^ The variety of deeds which soon after the Conquest were brought into use, and the divers ways in which they were applied for the purpose of transferring, modifying, or confirming rights, deserve a very particular notice. Deeds or writings, from the time of the Conquest, were sometimes called chirographa, but more generally cfmrtce ; the latter became a term of more common use, and so con- tinued for many years ; the former rather denoted a spe- cies of the chartce, as will be seen presently. Charters were executed with various circumstances of solemnity, which it will be necessary to consider : these were the seal, indenting, date, attestation, and direction, or com- pellation. Charters were sometimes brought into court ; either the king's, or the county, hundred, or other court, or into any numerous assembly ; and there the act of making, or ac- knowledging and perfecting the charter was performed. This accounts for the number of witnesses often found to old charters, with the very common addition of cum multis (Ms. When charters were not executed in this public 1 Wilk., Leg. Sax., 289. CHAP. II.] DEEDS OP CHARTER. 337 manner, they were usually attested by men of character and consequence : in the country, by gentlemen and cler- gymen : in cities and towns, by the mayor, bailiff, or some other civil officer.^ _ The Anglo-Saxon practice of affixing the cross still con- tinued ; yet was not so frequent as before ; but gave way to a method which more commonly obtained after the Conquest, namely, that of affixing a seal of wax. Seals of wax were of various colors. They were commonly round or ovalj and were fixed to a label of parchment, or to a silk string fastened to the fold at the bottom of the char- ter, or to a slip of the parchment cut from the bottom of the deed, and made pendulous. Besides the principal seal there, was sometimes a counter-seal, being the private seal of the party. If a man had not his own seal, or if his own seal was not well known, he would use that of an- other ; and sometimes, for better security, he would use both his own and that of some other better known. The original method of indenting was this. If a writing consisted of two parts, the whole tenor of it was written twice upon the same piece of parchment ; and, between the contents of each part, the word chirographum was written in capital letters, and afterwards was cut through in the midst of those letters ; so that, when the two parts were separated, one would exhibit one-half of the capital letters, and one the other; and when joined, the word would appear entire. Such a charter was called chiro- graphum. About the reigns of Eichard and John, another fashion of cutting the word chirographum came into use ; it was then sometimes done indent-wise, with an acute or sharp incision, instardentium ; ^ and from thence such deeds were called indenturoe. Charters were sometimes dated, and very commonly they had no date at all ; but as they were always executed in the presence of somebody, and often in the presence of many, the names of the witnesses were inserted, and constituted a particular clause, called his testibus. The names of the witnesses were written by the clerk who drew the deed, and not by the witnesses themselves, who very often could not write. It seems that wives were sometimes witnesses to deeds made by their husbands ; monks and other religious 1 Mad., Form., Diss. 26. ' Ibid., 14, 28, 29. 29 W WILLIAM I. TO HENEY II. [CHAP. H. persons to deeds made by their pwn houses ; even the king is found as witness to the charters of private men ; ' and in the. time of Richard and John, it came in practice for him to attest his own charters himself in the words teste meipso* Charters were usually conceived in the style of a letter, and, at the beginning, they had a sort of direction, or compellation. These were various. In royal charters, it was sometimes, omnibus hominibus ms Francis ^ Amlisi in private ones, sometimes, omnibus sanctcs ecclesioB jms ; but more commonly, sdant pvcesentes etjuturi, or ormSus ed quos prcesentes literce, etc. Thus far of the circumstances and solemnities attend- ing the execution of charters. Let us now consider the different kinds of them ; and it will be found, that as they were called ehirographa, or vfuhnturm^ from their particular fashion, so they received other appellations, expressive of their effect and design. A charter was sometimes called conventio, coneordia, fimdis concorclia, and Jinalis conventio. There were also fgoffh^,entts, demises for life and for years, exchanges, mortgages, partitions, releases, and confirmations.^ Conventio and concardia had both the same meaning, and signified some agreement, according to which one of the parties conveyed or confirmed to th© other any lands, or other rights^ Of all charters the most considerable was a feoffmenii After the time of the Conquest, whenever land Of feofltoent. ^^^ ^^ ^^ passcd iu fse, it was generally done, by feoffment and delivery or livery of seisin.* This rnight be without deed ; but the gift was usually put into writing, and such instrument was called charta fmffmenti. A fieoo- ment originally meant the grant of &fevd ovfee; that iSj a barony or knight^s ffee, for which certain serviees were due from the feoffee to the feoffor : thi& was th« proper sense of the word : but by custom it cam© afterward* to signify also a grant of free inheritance to a man and his heirs, referring rather to the perpetui-ty of estate than to- the feudal tenure. The words of donation were generally, dedisse, concessisse, confirmdlsse, or don&sse, some one or other of them. It was very late, and not till the reign of Eich- ard II., that the specifi-e term feoffom was used. These 1 Mad., Form., Diss. 31. « Ibid., 32. » Ibid., 3, ♦ Wilk., Leg. Sax., 289. CHAP. II.] FEOFFMENTS. 33S feoffments were made pro komagio et servitio, to hold of the feoffor and his heirs, or of the chief lord. At this early period feoffments were very unsettled in point of form ; they had not the several parts which, in after times, they were expected regularly to contain. The words of limitation, to convey a fee, whether absolute or conditional, were divers. A limitation of the former was sometimes worded thus: to the feoffee et suis; or suispost ipmm,jure ficereditario perpetue possidendum ; or sihi et hasredi' bus suis vel assignatis : of the latter thus : sibi et koeredStus proeedeniibus ex prcedidd : Richardo et uxori sum et hceredibus suis, qui de eddem veniunt: sibi et hceredibus qui de ilh exibunt : from which divers ways of limiting estates (and number- less other ways might be produced) it must be concluded, that no specific form had been agreed on as necessarily- requisite tb express a specific estate ; but the intention of the granter was collected, as well as could be, from the terms in which he had chosen to convey his meaning.' It appears that a charter of feoffment was sometimes made by a feme covert, though generally with the con- sent of the husband ; and a husband sometimes made a feoffment to his wife. A feoffment was sometimes ex- pressed to be made with the assent of the feoffor's wife ; ^ or of such a one, heir ^ of the feoffor ; or of more than one, heirs of the feoffor ; * though in such cases, the charter appears to be sealed only by the feoffor. By the assent of the wife, probably, her claim of dower was in those days held to be barred; and indeed, when such feoff- ment was made publicly in court, it had the notoriety of a fine ; and might consistently enough with modern notions, be allowed the efficacy since attributed to fines in the like cases. The assent of the heirs was, probably, where the land had descended from the ancestors of the feoffor; or where by usage it retained the property of bochnd, not to be aliened extra cognationem, without the consent: of the heir, where such restriction had been im- posed by the original landboc. A cliause of warranty was always inserted ; which some- times, too, had) the additional sanction of an oath. The import of this warranty was, that should the feoffee be » WUk., Leg. Sax., 5. ' Mad., Form., 148. ' Ibid., 316. * Ibid., 319. 340 WILLIAM I. TO HENRY II. [CHAP. II. evicted of the lands given, the feoffor should recompense him with others of equal value.^ A charter of feoffment was not a complete transfer of the inheritance, unless followed by livery of seisin. This was done in various ways ; as per fustem, per bacidum, per haspam, per annulum, and by other symbols, either peculi- arly significant in themselves, or accommodated by use, or designation of the parties, to denote a transmutation of possession from the feoffor to the feoffee. This was the nature of a feoffment with livery of seisin, as practised in these early times. It was the usual and most solemn way of passing inheritances in land; but yet was not of so great authority as a fine, which had the ad- ditional sanction of a record to preserve the memory of it. The antiquity of fines has been spoken of by many writers (a). Some have gone so far as to as- sert their existence and use in the time of the Saxons.^ But upon a strict inquiry, it is said, there were no fines, properly so called, before the Conquest, (a) Of this there can be no douht. Mr. Hargreave's opinion also, that fines were originally real concords of existing suits, is clearly well founded. There is a chapter in the Mirror about final concords of suits. At what period they became used for the purpose of transfer or conveyance, irrespec- tive of any real concord of a suit, is uncertain ; but there is every reason to believe that it would occur very readily to the minds of people in that early age, when the tendency was to have everything recorded. A law of Canute says, " He who has defended land with the witness of the shire (i. e., the county court), let him have it undisputed,'* which might suggest recovery ; and in the laws of Henry I. it is said, speaking of the county court; " Eecor- dationem curiae regis nulli negare licet" (c. xxxi.), which might easily sug- gest the idea of fines or recoveries. In the Saxon law mention is more than once made of transactions being attested in the county court. There was a particular reason why fines or recoveries should he of very early origin in our law, that the great body of the people held their land then without deeds or charter of conveyance. This is fully explained in the Mirror, in a pass- age, the antiquity of which is evident. It is said there that the first con- querors enfeoffed persons in knight-service, or villenage (no mention is made of freehold feofiments), and that many held their lands \>j villein customs — as to plough, etc., the lord's land. The lords might give them estates of inheritance, or if the lord received their homage for such estate^ it would be the same thing. Thus the people, it is said, had no charters! deeds, nor muniments of their lands ; but it is said many fines were levied of such services, which make mention of the doing of these services (Jfii^ ror, c. ii., s. 25). It would be natural in such % state of society to resort rather to public transactions in the county conrts than to formal convey- ances. ' 1 Mad., Form., 7. » Plowd., 360. CHAP. II.] FINES. 341 though they are frequently met with^ soon after that period.'' "We shall now consider the manner in which fines have been treated, or, as it is now called, levied. The account of fines given by Glanville does not enable us to fix any precise idea of the method of transacting them. It only appears from him, that this proceeding was a final con- cord made by license of the king, or his justices,' in the king's court. But the nature of a fine maybe better col- lected from the more simple manner in which it was originally conducted. . The parties having come to an agreement concerning the matters in dispute, and having thereupon mutually sealed a ehirographum, containing the terms of their agree- ment, used to come into the king's court in person, or by attorney, and there acknowledge the concord before the justices : it was thereupon, after payment of a fine, en- rolled immediately, and a counterpart delivered to each of the parties.* This was the most ancient way of pass- ing a fine. In course of time, fines came to be passed with a ehirographum, upon aplacitum commenced by original writ, as in a writ of covenant, warrantia chartce, or other writ. When the mutual sealing of a ehirographum was entirely disused, there still remained a footstep of this ancient practice ; for there continues to this day in every fine a chirograph, as it is called, which is reputed as essentially necessary to evidence that a fine has been levied. The design oifnal concords seems to have been anciently as various as the matters of litigation or agreement among men. By fines were made grants of land in fee, releases, exchanges, partitions, or any convention relating to land, or other rights : in a word, everything might be trans- acted by fine which might be done by ehirographum!' Thus far of the two great conveyances in practice for transferring estates of inheritance, namely, /eq^mewte and fines. The manner in which estates for life or for years (since called demises) were made, was in the way of con- vention or coven ant." ' Mad., Form., Diss. 7. ' The origin of fines is very fully considered by Mr. Cruise, in his valu- able Essay on Fines, who thinks, and with great show of reason, that fines were contrived in imitation of a similar judicial transaction in the civil law. — Cruise's Firueg, p. 5. ' Lib. viii., c. 1. * Mad., Form., Diss. 14. » Ibid., 16, 17. « Ibid., 22. . 29* 342 WILLIAM I. TO HBNET II. [CHAP. II. Two other spedies of conveya.nee then nsed were confir- mations and releases. In those unsettled times, when feof- fees were frequeaitly disseized upon some suggestion of dormant claims, charters of confirnaation were in great Tequest. Many confirmations used to be made by the feoffor to the feoffee, or to his heirs or successors. Ten- ants in those times hardly thought themselves safe against great lords who were their feoffors, unless they had re- peated confirmations from them or their heirs. Releases were as necessary from hostile claimants as confirmations from feoffors. The words of confirmatim were dedi, concessi, or cmfirmavi; and such deeds are distinguishable from original feoffments, only by some expressions referring to a former feoffment. Releases are known by the words guieitum clamoiM, remisi, relaxavi, and the like. During the time which had elapsed since the Conquest, the Iforman law had sufiicient opportunity to mix with all parts of our Saxon customs. This change was not con- fined to the article of tenures, duel, juries, and convey- ances. The manner in which justice was administered jmakes a distinguished part of the new jurisprudence. In the Saxon times all suits were commenced by the simple act of the plaintiff lodging his complaint with the officer of the court where the cause was to be heard ; and this &till continued in the county and other inferior courts of the old constitution. But when it had be- come usual to remove suits out of these infe- rior courts, or of beginning them more frequently in the king's court, it became necessary to agree upon some set- tled forms of precepts applicable to the purpose of com- pelling defendants to answer the charge alleged by plain- tiffs (a). Such a precept was called breve; probably, be- (a) King's writs indicate the jurisdiction of king's courts, for in the county courts men could sue without writs, which were only required to commence actions in the king's superior courts. The usage of such writs, therefore, marks an important era in our legal history. As already shown, the primary jurisdiction, after or before the Conquest, in common suits between party and party, was in the county court, which was called " curia regis " Ujeges Hm. Prim.). And hence the Miner, in an early chapter, headed, "Of the time of Alfred," gives as the form of remedial writ, a writ to the sheriff to compel him to decide the case and do justice. In a subsequent chapter, howeyer, stating what the law was at the time the book was compiled (Ed- ward I.), it is said, " There are two kinds of iurisdiction, ordinary ana as- signed ; every one hath ordinary jurisdiction," (i. e., in the county,) "but this jurisdiction is now restrained by the power of kings, as none hath power CHAP. II.] OE WRITS. S43 cause it contained briefly an intimation of tbe cause of complaint. It was directed t o the sheriff of the coanty to hold plea of trespass, or of debt which passetli forty shillihgs, but the king. Nor hath any one power of conveyance of fees" (ie., o^ freehold estate?) "without a writ" (c. iv., s. 2), which is also laid down in Bracton and Fleta. Now this change must have taken place after the Conquest, and the origin of it can be traced. Before the Conquest writs went to the sheriff to compel him to hear a case, and it Was then contended that writs were necessary to enable him to do so. And the writs Were often fequii*d to give a better judge. In the case of the Archbishop of Canterbury, already raen^ tioned as having occurred under William l.,the case was tried at the county Court, but befol-e a foreign prelate, Who of course could not have been sheri^ andwho could onl^ have sat uhder the king's writ. And thus the practice having arisen of using the king's writ in important cases, in order to secure k better judge than the_ sheriff, it by degrees came to be considered that the writ Was necessary to give jurisdidtioU in afiy but c6mparaliVely inindr cases; Not a trace of any such doctrine is to be found before the Conquest, nor until long afterwards ; and we have seen cases of the greatest character come into the county court. It had, however, evidently become established at the lime of the Great Charter, for it is laid down by Bracton ; Whereas, in the Mirror, we find that forty shillings was the limit, not of the county court, but of the court baron {c. i,, s. 3). But Bracton, writing just after the time of the Charter, says that the sheriff under the king's writ tried cases he could not try ea; dffido, but tried them as the justice of the king (s. 6). Thus, therefore, the king's writ being required to give jurisdiction, it of course was natural that the suitor should seek to sue in the king's superior court ; and hence, just before the Charter, common pleaS were brought, Sus all the records show, in the exchequer ; wherefore the Charter said they should not follow the king as that cpurt did, and hence the court of common pleas. Thus, tllerefore, now the king's writs to thte fehmff were required either to give hinl iurisdiotion to try the case, or to give the king's court jurisdiction to try iti In either case the writ went to the sheriff — a curious trace of the old ays- iiem : for otherwise they would have gone to the party, ot to the Court. The Mirror says that these writs used to contain the names of the parties and the name of the judge, and were directed sofaetimes to sheriffl, etc., and that they were necessary to give jurisdiction not possessed at common law. At common law, as has been seen, the primary jurisdiction was in the county court in " common plfeaa " between subject and subject, though they could be temoVed into the king's court for sufficient cause. Biit In order to derive a revenue out of the adininistration of justice, and at the same time promote its improvement, a practice had arisen of requiring the suitor in cases above forty shillings to Sue out a Writ from the king. And, in like manner, in Order to remove a case from the county court into the king's Superior court, a writ was required ; and to commence an action in the king's court. When the suitor was required to sue out a writ to commencfe a suit in the county court above a certain Value, there was, of course, i an inducement to sue in the king's court, as pirobably the fee was the same. Moreover, there were cases in which the party sued did not reside in the county where the matter arose, and in such cases the suit could not be brought into a County court without a king's writ — as the sheriff of one county had no jurisdiction over men in another, and the men of one county could not try caseS arising in another. But the king's writ went into any county, and the case commenced in the king's superior court could still be tried in the county where the mat- ter arose. Hence, for various reasons, the necessity for writs from the king's superior courts. These writs were, it will be seen, of two classes — either 344 WILLIAM I. TO HENRY II. [CHAP. II. Where the defendant lived, commanding that he should summon the party to appear in some particular court of the king, there to answer the plaintiff's demand, or to do "some other thing tending to satisfy the ends of justice. The necessity of such brevia was very obvious; for though, while most suits were transacted in the county court, it was sufficient to enter a plaint with the officer of the court ; and the process issuing thereupon being to be executed by the sheriff, who was present, or supposed to be present, in court as judge, was not likely to be ex- tremely illegal or irregular, even when warranted per- haps by nothing more authentic than verbal directions ; yet, when suits were commenced in the king's court, at a great distance from the habitation of the parties, and pro- cess was to issue to him merely as an officer, who knew nothing more of the matter than what the precept ex- plained, it was necessary that something more particular should be exhibited to him; and, therefore, that the pre- cept should be written. Hence, perhaps it is, that the breve was called also a writ} These writs were of different kinds and received differ- ent appellations, according to the object or occasion of them. The distinction between writs furnished a source of curious learning, which led to many of the refinements afterwards introduced into the law. The assigning of a writ of a particular frame and scope to each particular to the sheriff to empower him to do justice^ and try the case in his county, which was called a writ of justices, or a writ to commence an action in the king's superior court, and therefore "returnable," as the phrase was in that court. In either case, however, so deeply rooted was the county court in our judicial system, the writ went to the sheriff of some county, who was to summon the party sued, to answer in the suit : and to enable him to do so, or inform him what steps to take with a view to the proceeding he might desire to take, the writ briefly stated the cause of complaint. The reason for this was, that the writ commanding appearance in court, and the appearance being personal, and the pleading oral, the parties upon appearance could at once commence their controversy, the plaintiff narrating his cause of com- plaint more fully ; and the defendant, unless he desired time to consider his defence, would at once make his answer ; and of course the more clear the writ, the better he would be able thus to answer. The course, upon appear- ance in the king's court, would, it should seem, as the pleading was oral, be very much the same, at first, as in the county court, until the point in dispute appeared. If it was matter of law, it would at once be decided by the court ; if matter of fact, it would be sent into the county to be tried, and that would require a record. ' We have before seen that deeds, among the Saxons, were called Oewrite. — Vide ante, p. 184. CHAP. II.] RECORDS. 345 cause of action ; the appropriating process of one kind to one action, and of a different kind to another ; these and the like distinctions rendered proceedings very nice and complex, and made the conduct of an action a matter of considerable difficulty. The cultivation of this kind of learning was encour- aged by a regulation of the new law, which J • J J? j.T_ p T J, Of records. was designed tor the more useful purpose oi preserving the judgments and opinions of judges for the instruction of succeeding ages ; this was the practice of entering proceedings of courts upon a roll of parchment, which was then called a record {a). The practice of registering upon rotidi, or rolls of parch- (a) There were other and stronger reasons for records than those here mentioned ; and, indeed, records of judicial proceedings will be found neces- sarily incident to any regular system of judicature and procedure; and, therefore, they are to be traced in the times immediately following the era of the Conquest, when, as we have seen, attempts were made to improve the turbulent popular assemblies of the Saxons, and introduce something like judicial tribunals, and some kind of regular procedure. Lord Coke cites a supposed record of the great suit in the county court soon after ^the Conquest, of which mention is made by our author at the end of the first chapter, and which has more than once been mentioned in these notes as the first instance of anything like a regular judicial trial {Preface to the 9th Part of " Oake's Beports"). Whether or not that particular record is authentic, it is mani- fest that so soon as regular judges sat, and regular trials took place, in the county court, records of the proceedings would, for various reasons, be re- quired ; and it is certain that such judicial records became the practice, for in the Leges Henrici Primi mention is more than once made of the records of the " curia regis," which at that time, as the context clearly shows, meant the county court: " Becordationem curiae regis nuUi licet negare." In the reign of Henry I., as we have seen, regular judges sat in the courts of the counties, directed upon matters of law, and directed the juries, who were sworn to determine matters of fact, on whose verdicts judgment was given. These judgments would be of little use if the same matter might be litigated again between the same parties, and, to prevent this, was one great use of records ; and this probably was alluded to in the passage from the Laws of Henry I., just quoted, for it has from the most ancient times been the rule of law that a verdict and judgment on the same matter, between the same parties, was final. Again, the great object of law being certainty and uni- formity of decisions, this required an appellate jurisdiction, and that neces- sarily required records; for unless the matter was recorded, the superior court could not exercise its jurisdiction. Hence the appellate jurisdiction of the "curia regis," and the jjractice of recording judicial_ proceedings, can be traced together to these ancient times, and have ever since been united. Hence, when it was desired to give an appeal to a court of error from the rulings of the judges upon trials, the statute of Westminster (temp. Edward I.) required the matter to be recorded ; and hence the ancient writ of " re- cordare facias," to remove a matter from an inferior court. Thus, therefore, for various reasons, records and regular procedure were necessarily connected together. 34fi WILLIAM I. TO HENRY II. [CHAP. II. ment, was entirely Norman; nor did it obtain to any treat extent till long after the Conquest. Among the axons the manner of registering was by writing on both ■fiides of the leaf; and this was either in some evanpeliste- rium, or other monastic book, belonging to a religious house. It was thus that the memory not only of pleas in courts, but of purchases of land, testaments, and of other public acts was preserved. This practice, like other Saxon usages, continued long after the invasion of William. We find that Domesday, the most important record of the exchequer in those times, consists of two large books. But in the time of Henry I. we find rotuU annates in the exchequer for recording articles of charge and discharge, and other matters of account relating to the king's reve- nue. It is conjectured that the making enrolment of ju- dicial matters in the curia regis was posterior in point of time to the same practice in matters of revenue, and was dictated by the experience of its utility in that important 'department.* This innovation gave rise to the distinc- tion between courts of record and courts not of record. A record began with the entry of the original writ ; re- hearsed the statement of the demand, the answer or plea, the judgment of the court, and execution awarded. Thus a record contained a short history of an action through all its stages. When proceedings were entered in this solemn manner, and submitted to the criticism and except tion of the adverse party, it became very material to each that his part of the record should be drawn with all accu- Tacy and precision. When this attention was observed in completing a record, it became a very authentic guide in similar cases. Records were in high estimation ; and, as they continued the memorials of judicial opinions, tended to fix the rules and doctrines of our law upon the firm basis of precedent and authority. Such were the more conspicuous parts of the juridical System introduced by the Normans, and such were the changes they underwent during the period that elapsed before the end of the reign of King John. ' See Ayloffe's Ancient Charters, Introd. CHAPTEE III. HENBT II.(a.) Of Villeins — Doweb — Alienation — "Nemo potest esse Hjsbes ET DoMiN0S" — Of Descent — Or Testaments — Of Wardship — Marriage — Of Bastardy — Usurers — Op Escheat — Marita- GiuM — Homage — Belief — Aids — Administration op Justice — A Writ of Right — Essoins — Of Summons — Op Attachment — Counting upon the Writ — The Duel — The Assize — Vouching to Warranty — Writ of Eight op Advowson — Op Prohibition to the Ecclesiastical Court — The Writ de Nativis — Writ of Bight of Dower — Dowek unde Nihil. IN" the former chapter it was endeavored to trace the history of the principal changes made in the law from the time of William the Conqueror down to the reign of King John : but the object of this work being to give a correct idea of the origin and progress of our whole judi- cial polity, something more satisfactory will be expected than the foregoing deduction. It will be required to state fully, and at length, what was the condition of per- sons and property ; how justice, both civil and criminal, was administered ; with the process, proceeding, and judgments of courts ; in short, to give a kind of treatise of the old jurisprudence, with a precision, and from an authority, that will at once instruct the curious, and have weight with the learned. When this is done, it will be a foundation on which the superstructure of our juridical history may be raised with consistence ; every modifica- tion and addition being pursued in the order in which it arose, the connection and- dependence of the several parts will be viewed in a new light, and the reason and grounds of the law be investigated and explained more naturally, and, it is trusted, with more success than in any discourse or desultory comment upon our ancient statutes, however copious and learned. In order to lay this foundation of the subsequent his- tory, it seems that some point of time during the period (a) Vide note to the heading of c. ii. 347 348 HENRY II. [chap. III. between the Conquest and the reign of King John should be chosen, and that the contemporary law of that time, in all its branches, should be stated with precision and mi- nuteness (a). The laws of Edward the Confessor, consid- (a) It would have been better to have taken the Mirror of Justice for this purpose, or at all events to have had some regard to it, since it is more full and complete as regards the scope of its subjects, and because, as it was based upon a work as ancient as the time of the Saxons, and contains oases and ordinances from the time of the Conquest to the time when it was finally completed (Edward I,), it exhibits the course and progression of our legal history far better than any known work ; whereas Glanville, to whom our author confines himself, states the law (only upon matters that came within the cognizance of the king's chief court, and upon some subjects not fully, and upon others not at all) as he understood it to be in his day. Elsewhere, in the reign of Edward I., the author notices the Mirror cursorily, and merely observes that some part of it was written as late as that reign, and then dis- misses it, and makes no more use of it. It is evident that he had read only the first chapter, in which the name of that king was mentioned in this way, " Many ordinances were made by many kings until the time of the king that now is," Edward I. (c. 1, s. 3), from which he hastily inferred that, as it was a work written in that time, it would throw no light upon the history of the law in previous times ; whereas, on a little attention to this very passage, he would have seen that it was quite otherwise, and that this work, of all others, is calculated to throw light upon our legal history during its whole course, from the time of the Saxons up to the time of Edward I. And, upon a perusal of it, he would have seen that there is no difiiculty at all, with a little attention to the contents, and a knowledge of legal history, in searching out the age or era to which each part belongs. For instance, the large por- tions which have already been made use of in these notes, as clearly belong- ing to the Saxon age. In like manner, various portions have been used in the foregoing chapter as belonging to the era of the Cionquest, i. e., to the reign of the Conqueror and his immediate successors. So certain portions are clearly marked out as belonging to the period covered by the present chapter, the important era of the reign of Henry II. ; as, for example, trial by battle, which was not used at all after John's reign. So as to villenage, which, in its worser or lower sense, probably became obsolete during the same period. It may be convenient in this place to present at once such por- tions of the Mirror as appear plainly to relate to the period covered by this chapter. Sometimes the precise age or time of the law alluded to is marked by the passage itself, as thus, in stating the law as to coroners, " In case a man dieth by a fall, in such a case, according to Kanulph de Glanville, it is or- dained that whatever is cause of death is deodand." (B. i., c. 13.) That clearly refers to some decision or judgment of Glanville, who was chief jus- ticiary under Henry II.; and it is observable that the "ordinance" is not to be found in Glanville, whose work, indeed, is confined, as already mentioned, to matters which came under the cognizance of the king's court, and there- fore did not include matters which came under the cognizance of sberifis or coroners, as to which the Mirror is very copious. It may be observed upon this passage^ as to deodands, that it illustrates the growth and progress of our laws by judicial decisions, sometimes called " ordinances" of the kings under whom they were pronounced, and many of which are to be found scattered through the Mirror ; and are in these notes collected, under the period to which they appear to belong, as in the instance already adduced. So, again, of misadventures in tournaments, in courts and lists. King Henry II. or- CHAP. III.] OP VILLEINS AND VILLENAGE. 349 ered according to the present opinion, as a performance of some writer in the reign of "William Rafus, and the laws of Henry I., are the earliest documents that could at all be viewed with any hopes of information of this kind ; but these throw so little light on the Norman jurispru- dence, that they furnished small assistance, even in the historical sketch contained in the preceding chapter. The new jurisprudence seems not to have been tnoroughly established, or at least tolerably explained, till the reign of Henry II., when we meet with the treatise of Glanville. The method, scope, and extent of this venerable book mark the reign of Henry II. as the most favorable period for our purpose. As, therefore, it may be collected with considerable accuracy from that author what the law was towards the end of the reign of Henry II., we shall, with his aid, take a complete view of it ; and, having done that, we shall proceed with more confidence to consider the subsequent changes made by parliament and by courts in the reigns of Henry III., Edward I., and his successors, as to an inquiry that may be followed with ease, instruc- tion, and delight. This account of our laws at the close of Henry II. 'a reign will be divided into the rights of per- sons, the rights of things, and the proceedings of courts. We shall begin with the first. dained that " because at such duels happen many mischances, that each of them (the combatants] take an oath that he beareth no deadly hatred against the other, but only that he endeavoreth with him in love to try his strength in those common places of lists and duels, that he might the better learn him to defend himself against his enemies ; and therefore such mischances are not supposed to be felony, nor have the coroners to do with such mis- chances which happen in such common meetings, where there is no intent to commit felony" (Ibid.). This is a piece of law applicable at the present day to the case of parties fencing with buttoned foils, etc., and one of them accidentally killing the other ; but otherwise of a real duel, where each does intend to strike or to fire, for to strike or fire with a deadly weapon is felony, as the intent to kill or wound is implied from the act. It may here be men- tioned that it appears plainly from the Mirror, and the manner in which passages speaking of juries in criminal cases are mixed up with passages ob- viously at least as ancient as this period, that trial by jury in criminal cases was now common. With regard to civil cases, there is a passage fitly in- serted here as illustrative of what the law of procedure was previous to the work of Glanville, "An assize in one case is nothing more than a session of the justice ; in another case it is an ordinance of certainty, where nothing could be more or less than right. For the great evils which were used to be procured in witnessing, and the great delays which were in the examina- tions, exceptions, and attestations, Banulf de Glanville ordained this certain assize (of writ of right) that recognitions should be sworn by twelve jurors of the next neighbors, and so this establishment was called assize " (o. 2, s. 25). 30 350 HENBT ir. [chap. III. Tbe people, as among the Saxons, were divided into freemen and slaves, though the latter assumed, under the Norman polity, a new appellation, and were called villuni, or viUeins (a). (a) It has been already pointed out that the author was in error in sup- posing that the vUleins ever were slaves. He confounded the " theows " (or thralls), who were slaves, with the " ceorls" (or churls), who were not. It was the latter — the "ooloni"'of the Roman law, and so called in the Latin version of the Saxon laws — whoj were the originals of the "villeins" or, " villani" under the Normans, though it is certain that in the course of time,, and by force of custom, the thralls were raised to the position of villeins, and many of the villeinsbecame in like manner copyholders' or tenants in socage, or freeholders; and, on the other hand, the thralls thus raised to the rank of villeins were naturally put to the viler and baser kind of service, as, for instance, the carrying and spreading of dung — the case put by Lit- tleton in his chapter on the subject — and thus by degrees the word vUlein acquired a lower sense and: meaning; as the original villeins became copy- holders. It has already been seen that villeins were considered copyholders, and are so called in the Mirror, where it is said, that the long tenure of copy- hold land does not make the freeman a villein (c. iii-^ s. 2) ; and it is said elsewhere in that ancient work, " It Li an abuse that it is said that villenage is not a. freehold, for a< villein and a slave are not all one, either in: name or signification, as every freeman may hold land in villenage to him and his heirs, performing the services" (c. 5). And again, it is an abuse to hold villeins for slaves, and this abuse causeth great distinction of poor people (Z6id.). Yet elsewhere in the same chapter it isi said to be an abuse that villeins were deemed ireemen, or admitted into frankpledge as freemen (Ibid.). It is evident that there were two orders of villeins — the one personally so, frotm being in the position of feudal serfs, probably from having been slaves; and therefore serfs by birth, and their issue equally so ; and tenants in villenage, who might be of this lower class, or might be of a better class, according to the nature of their services. If the services were vile and base, as to spread dungj they were of a lower order, and probably would be serfs, though still not slaves, and not necessarily even serfs, for freemen might be tenants in villenage if they chose to be so. If the services were of a higher nature, as to plough or sow the land, then they were still tenants in villenage, though not serfs or villeins, and by degrees this class became by custom either copyholders or freeholders. The only distinction between those classes, the service of both being to plough and sow, as Littleton shows in his chapter on tenancy in socage, or freehold tenure, was, that in the latter case this sort of service was converted by custom into certainty, and thus gave by customary right or implied grant, if not by actual grant, a freehold; whereas in the other — the copyhold tenure — the service, though not base, was still uncertain in its nature; so that the land was still held' by custom aceording to the will of the lord. As, however, the tenant had a right to his tenement, rendering the service, which by degrees got changed into a money fine or alienation, practically the tenancy, even in the case of copyholds, became legally secure, subject to the liability to such fines ; and, as to the socage tenure, that was by degrees converted either into a money rent or a money fine, and thus the tenants who held on plough service be- came converted into copyholders or freeholders. The villeins, however, whose services were base and vile, still continued for a long time in a state of transition, slowly rising by degrees to the position of husbandry tenants of manors, or continuing in their low and servile- condition, and this occa<- CHAP. III.] OF VILLEINS AND VILLENAGE. 351 Of villeins, those were called nativi who were such di nativitate, as when one was descended from a father and mother who were both villeins d, nativitate (a). If a free- man married a woman who was born a villein, and so held an estate in villenage, in her right, as long as he was bound to the villein services due on ac- count of such tenure, he lost, ipso facto, his lex °' """*"* terrce, as a villein d, nativitate (b). If children were born sioned the uncertitude as to the real staiits of a yillein or a. tenant in villen- age. The substantial distinction, however, was, that the tenant in villenage might or might not be a villein, and that a vUiein was so at this period by birth (because there had been no new conquest, and no fresh creation of thralls or villeins since the Norman), and on the same principle their issue also were villeins. In the one class the villenage was personal, though still only predial ; in the other, it was merely a character of tenure. (a) As already shown, at this period there could be no villeins who were not nativi ; for villenage was necessarily a personal status, whereas tenure in villenage was a mere kind of tenure. And thus, in the Mirror, it is said that, in an action of villenage the man might say that the services he had rendered, and which were relied on as a proof of villenage, were for the services of villein-land he held, and not by service of blood (c. iii., s. 23). There is not a more interesting branch of the history of the law than that which relates to the gradual emancipation of the slaves and of the villeins. No statutes were passed to effect either ; both were the results of judicial decisions. As regards both classes, the courts, it is clear, threw the onus of proof upon the man who claimed another as his slave or serf; and, on the other hand, held any act on the part of the lord which looked like a recog- nition of freedom, to be evidence of emancipation ; the result of which was, that even by the time of the Mirror, which was not later than the reign of Edward I., vUlenage, as a personal estate, was, it is manifest, dying out, though U remained much longer as a character or kind of tenure. The author omitted to notice this indirect means of emancipation, though its effect must have been more powerful than any other. Thus, for instance, the Mirror says, that if a man could show a free stock of his ancestors, he would be accounted a freeman, although his father, mother, brother, and cousins, and all his parentage, acknowledged themselves to be the plain- tiffs villeins, and testified the defendant to be a villein born : about aa pow- erful an exertion of the principle of presumption in favor of liberty as it is possible to imagine. And it is a most interesting illustration of the efficacy of judicial decisions as a means of modifying the law, and the salutary and certain effect of such judicial means. The Mirror states that a villein could be emancipated if his lord suffered him to answer, without him, in a personal action, or to sit as juror among freemen, or by proof of a free ancestor at any period, however remote (for, as Littleton says, a villein could only be by prescription, on the ground that his ancestors had been so time out of mind), also, if the villein departed out of the manor, and was not retaken within a year ; or if he were allowed to he a suitor in another court than that of his lord : and so, as it is obvious that the acts or defaults of the lords, which had the effect of emancipating their villeins, were so numerous, that villenage, as a personal state, must have very rapidly disappeared, especially when, in Magna Charta, there was a distinct recognition that a villein was capable of property (vide post, o. iv.). (5) According to GlanviUe, it was the same where the father was free if 352 HENRY II. [chap. III. from a father who was nativus to one lord, and a mother who was riaUva to another lord, such children were to be divided proportionately between the two lords ^ (a). A villein might obtain his freedom in several different ways. The lord might quit-claim him from him and his heirs forever, or might give or sell him to some one, in order to be made free, though it should be observed that a villein could not purchase his freedom with his own money ; for he might in such case, notwithstanding the supposed purchase, be claimed as a villein by his lord ; for all the goods and chattels of one who was a naMvus were understood to be in the power of his lord, so as that he could have no money which could be called- his own to lay out in a redemption of his villenage (6). However, if some stranger had bought his freedom for him, the the mother was villein-born, or if the father was villein-born though the mother was free. This was contrary to the civil or canon law, under which the maxim was, that the issue followed the mother ; and there ia a discus- sion in Fortescue's treatise, De Laudibus Legum Anglice, upon this point, in which the chancellor defends the rule of the common law. That the civil law was right will be seen at once, when it ia observed that, from the com- mon law rule (as our author, quoting Glanville, goes on to state), this monstrous result followed, that if the mother was on one manor, and the father was a villein on another, the children were divided between the two lords, as Lord Littleton observed, like cattle. This monstrous consequence did not occur to the chancellor when he was vehemently maintaining the common law, which, wherever it deviated from the civil law, lapsed into barbarism. [a] The reason of this was, that the woman was a vUlein born, in a personal state of villenage, and he held in her right ; and therefore, during her life, loat_ his statm of completed freedom ; that is, his civil rights, as a freeman, to sit on juries, vote, etc. Lord Littleton, no doubt, intended to convey tliis whenhe rendered the meaning thus: "That if a freeman married a woman born in villenage, and who actuaUy lived in that slate, he thereby lost the legal rights of a freeman, and was considered as a villein by birth^ during the life- time of his wife, on account of her villenage " (and he refers to Bracton, lib. 5). In Britten's time, the wife was enfranchised during the coverture, in such a case (78). (i) The author has omitted to notice another, and a very efficacious means of emancipation, by a grant of freehold land from the lord. "Villeins be- come freemen if their lords grant or give unto them any free estate of in- heritance to descend to their heirs" (Minor, c. i., s. 28). And be it observed, that mere possession and receipt of the profits would be evidence of such a gift ; which, it will be remembered, might be by feoffment ; and it is also to be remembered, that the rendering of services, of socage or plough service, would be no proof of villenage; for, as Littleton points out, that was the nature of common freehold tenure ; nor, at all events, if the socage service rendered was ieriain, would it be any proof of villenage ; for it might be tenure in socage, and that would be a freehold tenure. The number of vil- leins who thus obtained their freedom must have been immense. ' Glanv., lib. 5, c. 6. CHAP. III.] OF VILLEINS AND VILLENAGE. 353 villein might maintain such purchased freedom against his lord ; for it was a rule, that where any one quit- claimed a villein nativus from him and his heirs, or sold him to some stranger, the party who had so obtained his freedom, if he could establish it by a charter, or soma other legal proof, might defend himself against any claims of his lord and his heirs; he might defend his freedom in court by duel, if any one called it in question, and he had a proper witness who heard and saw the manumission. But though a man could make his villein nativus free, as far as concerned Ms claim and that of hia heirs, he could not put him in a condition to be considered as such by others ; for if such a freed man was produced in court against a stranger to deraign a cause (that is, to be the champion to prove the matter in question) or to make his law,* or law-wager, as it has since been called, and it was objected to him that he was born in villenage, the objection was held a just cause to disqualify him for those judicial acts ; nor could the original stain, says G-lanville, be obliterated, though he had since been made a knight. Again, a villein d, naUvitate would become ipsa facto free, if he had remained a year and a day in any privileged town (a), and was received into their gylda (or guild, as it has since been called) as a citizen of the place.^ Nothing is said by Glanville {b) concerning the differ- (o) This was taken from a law of the Conqueror : " Si servi permanserint sine calumnia per annum et diem in civitatibus nostris vel in burgis in muro vallatis, vel in castris nostris, a die ilia liberi efficientur, et liberi a ju§,o Bervitutis suae aint in perpetuum" (Leg. Will., 66). By privileged town, in the text. Lord Littleton thought was meant a town that had franchises by prescription or charter; and this law, he truly observes, "shows the high regard for the law of such, corporations, and also a desire to favor enfran- chisement as much as the settled rules of property would permit" (Bht. Hm. n.. vol. iii., p. 191). (6) Our author, it will be observed, follows Glanville implicitly, and simply incorporates Glanville's work with his ofrn. It did not fall within the compass of Glanville's work to enter into the distinction of ranks or orders, because he dealt only with tlie proceedings in the earia regis ; but there was light to be derived from other sources on the subject, as the Mirror and the laws of Henry I., which represent what the body of the law was during the whole of this period, although, no doubt, in a constant course of progression and of development. It is in this, the main element of history,, our author is deficient. As regards the question of ranks and grades of the people, the fundamental distinction was between free and servile ; and this was most important, and was closely connected with the tenure of land, ' Legem foicere. ' Glanv., lib. 5, c. 5. 30* X 854 HENRY II. [chap. III. ent ranks of freemen ; we shall therefore proceed to the next object of consideration, which is, the right of prop- erty claimed by individuals under various titles and circumstances, as dos, or dower, belonging to a widow, maritagium, and the like ; after which we shall speak more particularly about succession to lands, and the nature of tenures, as the law stood in the reign of Henry II. The term dos, or dower, had two senses. In the com- mon and usual sense, it signified that property which a freeman gave to his wife ad ostium ec- clesice, at the time of the espousals (a). We shall first speak from which resulted consequences of great importance ; for it resulted that, by a change in the tenure of a man's lauds, his personal condition might be changed, which would affect his whole slatvs and position, and not merely his social position, but his legal rights ; for a villein could not sit in the leourt of the hundred, or the county, nor upon a jury, or a court-leet, nor enjoy any of the legal privileges of freemen. Hence, in the laws of Henry I., it is said that only freeholders could sit in the courts : " Villani vero, vel cotseti, vel qui sunt viles et inopes personse, non sunt inter regnum judices numerandi, nee in hundreto vel in coraitatu" (c. xxix.). So, in the Mirror it is said, that villeins cannot be Jurors, etc. ; and it is put as an abuse that villeins should be in " frankpledges," or pledges of freemen, or that a man should be summoned (i. e., to the courts, or on a jury), who was not a free- holder (c. v., s. 1). In those times, in short, a liber homo, or freeman, meant a, freeholder ; and a man who was not a freeholder was not deemed a free- man, and the two terms were, as in the passage just cited, used as synony- mous. But then, on the other hand, it was deemed an abuse to treat villeins as slaves, and an error to think that all who held land in villenage must be villeins. Freemen might hold land in villenage, having freehold land be- sides ; but a man who could not hold land for himself was a villein. No villeins, or any who were not freeholders, could be summoned or be sum- moners (c. ii., s. 29); but, then, villeins became freemen if they became free- holders, and though they could not acquire freehold land from any but their lords, their very incapacity being that they could not, except from' their lords, acquire freehold projierty, yet, if their lords gave them any estate of inheritance, or accepted their homage, they became free. And so, if their lords allowed them to be sworn as jurors, or in the county court, or to remain away from their manors for a year — in these, and many such cases, the villeins became free. The result was, that there was a constant process of change going on in society, men becoming free who were before servile, and thus gaining the position and privileges of freemen. (ffl) This is all a translation of Glanville. The other sense in which the word is used, he afterwards explains to be that in which it was used by the Romans, as the endowment given to the man with a woman (vol. vii.), which Corresponds, he says, with what is called maritagium, or marriage-hood, as to which our author proceeds afterwards to translate him. It may be conven- ient here to recite what is said in the Mirror on the subject of dower, in the ancient sense: — " It was ordained that every one might endow his wife, ad oslium ecclesice, without the consent of his heirs, though widows, if they mar- ried without the consent of their lords, would lose their dowries." It is to be observed, that it is further stated in the Mirror, that " knights' lands came CHAP. III.] DOWER. 355 of dos in this sense of it. "WTien a person endowed his wife, he either named the dower specially, or did not. If he did not name it specially, the dower was understood, by law, to be the third part of the husband's liberum tene- mentum ; for the rule was, that a reasonable dower of a woman should be a third part of her husband's freehold which he had at the time of the espousals, and was seized of in demesne. If he named the dower specially, and it amounted to more than the third, such special dower was not allowed, but it was to be admeasured to a fair third ; for, though the law permitted a man to give less than a third in dower, it would not suffer him to give more.' If a man had but a small freehold at the time of the espousals when he endowed his wife, he might afterwards augment it to a third part, out of purchases he had made since ; but if there had been no provisional mention of new purchases at the time of such assignment of dower, although the husband had then but a small portion of freehold, and had made great acquisitions since, the widow could not claim more than a third part of the land he had at the time of the^ espousals. In like manner, if a person had no land, and endowed his wife with chattels {a), money, or other things, and afterwards made great ac- quisitions in land, she could not claim any dower in such acquisitions ; for it was a general rule, that where dower was specially assigned to a woman ad ostium ecclesice, she could not demand more than what was then and there to the eldest son, and that common freehold land was divisible among the right heirs, and that no one might alien more than the fourth part of his in- heritance, without the consent of his heirs, and that none might alien his land acquired by purchase away from his heirs, if the power of alienation were not given" (c. i.). It may be doubted whether it was not so unless it were taken away. (o) This is confirmed in Fleta (lib. v., c. 23) ; but it is added, that the dower, in such case, could only be claimable as far as the chattels of the de- ceased extended (and clear of his debts) — that is, the realty would not be liable to make good the deficiency. Hence, at common law, this kind of dower became obsolete, and in the reign of Henry IV. it was denied to be allowable ( Year-Book, 7 Hen. IV., f. 13). That is only an illustration of the ignorance of our common law judges, who then had ceased to be students of the civil law, and merely were guided by the fluctuating customs of the time. In later times courts of equity, in th& as upon so many other subjects, repaired the deficiency of law ; and in our own day jointures have practically superseded dowers. » Glanv., lib. 6, c. 1. " Ibid., c. 2. 356 HBITRT II. [chap. III. A woman could make no disposal of her dower during her husband's life ; but as a wife was considered in potestate viri, it was thought proper that her dower and the rest of her property should be as completely in his power to dispose of them ; and therefore every married man, in his lifetime, might give, or sell, or ali«n in any way whatso- ever, his wife's dower : and the wife was obliged to con- form in this, as in all other instances, to his will. It is, however, laid down by Glanville, that this assent might be withheld ; and if, notwithstanding this solemn declarai- tion of her dissent^ and disapprobation, her dower was sold, she might claim it at law after her husband's death; and upon proof of her dissent, she could recover it against the purchaser.'' Besides, it must be remarked, that the heir in such case was bound to deliver to the widow the specific dower assigned her, if he could ; and if he could not procure the identical land, he was to give her a rea- sonable excawMum, as it was called, or recompense in value ; and if he delivered her the land that was sold, he was in like manner bound to give a recompense to the purchaser.' If the assignment at the church-door was in these words, "Z)o tibi terram isiam cum omnibus pertinentiis;" and he had no appurtenances in his demesne at the time of the es- pousals, but he either recovered by judgment, or in some other lawful way acquired such appurtenances ; the wife might, after his death, demand them in right of her dower.* If there was no special assignment of dower, the widow was entitled, as we before said, to the third part of all the freehold which her husband had in demesne the day of the espousals, complete and undiminished, with its appurtenances, lands, tenements, and advowsons ; so that, should there be only one church, and that should become vacant in the widow's lifetime, the heir could not present a parson without her consent. The capital messuage was always exempt from the claim of dower, and was to re- main whole and undivided ; nor were such lands to be brought into the division for dower, which other women held in dower upon a prior endowment. Again, if there ' The word used by Glanville is contradicere, which, in this and other places, he seems to use in a sense implying somethilig more formal and solemn than ^ common dissent and disapprobation. " Glanv., lib. 6, c. 3. » Ibid., o. 13. * Ibid., c. 12. CHAP. III.] DOWER. 357 were two or more manors, the capital manor, like the oapi. tal messuage, was to be exempted, and the widow was to be satisfied with other lands. It was a rule, that the as- signment of dower should not be delayed on account of the heir being within age. If land was specially assigned for dower ad ostium eccle- sice, and a church was afterwards built within the fee, the widow was to have the free presentation thereof, so as, upon a vacancy, to give it to a clerk, but not to a college, because that would be depriving the heir of his right for- ever; however, should the husband in his lifetime have {)resented a clerk, the presentee was to enjoy it during his , ife, though the presentation was made after the wife had been endowed of the land, and it might look like an an- ticipation and infringement of the profits and advantage to which she was entitled by her special assignment of dower. Yet, should the husband himself have given it to a religious house, as this would be an injury to the wife similar to that above stated respecting the heir, the church, after his death was to be delivered back to the widow, that she might have free presentation to it ; but after hei' death, and that of her clerk, the church would return back to the religious house to be possessed forever. If a woman had been separated from her husband ob aHqnam mi corporis turpitudinem, or on account of blood and consanguinity, she could not claim her dower ; and yet, in both these cases the children of the marriage were con- sidered as legitimate and inheritable to their fether [a). Sometimes a son and heir married a woman ex consensu patris, and gave her in dower some part of his father's land, by the assignment of the father himself. Glanville states a doubt upon this, whether in this case, any more than in that of^an assignment by the husband himself, the widow could demand more than the particular land assigned ; and whether, upon the death of the husband (a) It is stated in the Mirror that it was ordained that knights' fees should come to the eldest son by succession, and that socage lands should be divisi- ble among the right heirs, and that none might alien but the fourth part of his inheritance, without the consent of his heirs, nor his lands acquired by grant, if the power of alienation were not given ; though this seems a mis- take, for the law had always been that it was alienable, unless there was a restriction upon alienation. But after the time of John, the socage lands went to the eldest son, unless there was a eastom to divide the land ; therefore the above passage must have been written prior to that reign. 358 HENRY 11. [chap. III. before the father, she could recover the land, and the father be bound to warrant her in the possession of it.' - Thus far of one sense of the word dos. It was understood differently in the Roman law, where it properly signified the portion which was given with the woman to her hus- band, which corresponds with what was commonly called in our law maritagium ; but we shall defer saying anything of maritagium till we have considered the nature of aliena- tion and descent with some other properties of land. Respecting the alienation of land, the first consideration that presents itself is the indulgence allowed in favor of gifts in maritagium {a). Every freeman, says G-lanville, might give part of his land with his daughter, or with any other woman, in maritagium, whether he had an heir or not, and whether his heir agree to it or not ; nay, though he made that solemn declaration of his dissent, ■95rliich we have just seen had the eflect of rendering an alienation of dower ineffectual and void.^ A person might give part of his freehold in remunera- tionem servi mi (b), or to a religious place in free alms, so that, should such donation be followed by seisin, the land would remain to the donee and his heirs forever, if an es- tate of that extent had been expressed by the donor; but if the gift was not followed by seisin, nothing could be recovered against the heir without his consent ; for such an incomplete gift was considered by the law rather as a nuda promissio than a real donation. Thus, then, on the above occasions, any one might, in his lifetime, give a reasonable part of his land to whomsoever he pleased; (a) This marriagehood or maritagmm, is what Littleton calls tenure, or frank-marriage, which, he avers, was by the common law, and by which a man, on the marriage of his daughter, gave to her husband land in fee simple (lib. iii., c. 2). (6) This was the tenure of bishoprics and benefices : — " Potent etiam do- natio in liberam eleemosinam ; sicut ecclesiis, cathedralibus, conventualibus, parochialibus, viri, religiosi" (Braclon, lib. xxvii.). The reason, apparently, why Glanville, whom our author only translates and follows, mixed up the two subjects of gifts on marriage of a daughter with leases by last will, is apparently because, as had been the policy which allowed of gifts to children, inter viros, did not apply to bequests to strangers at the close of life, and espe- cially in artieulo mortis. Apparently there is not any connection between the subjects, because to the extent to which land was allowed to be given to children, inter viros, there would be less to bequeath to any one. And as gifts in frank-marriage would be, as Littleton says, for the advancement of the daughters, there could be no objection to them on any ground. ' Glanv., lib. 6, c. 17. » Ibid., Ub. 7, c. 1. CHAP. III.] OF ALIENATION OF LAND. 359 but the same permission was not granted to any one in extremis, lest men, wrought upon by a sudden impulse, at a time when they could not be supposed to have full pos- session of their reason, should make distributions of their inheritances highly detrimental to the interest and wel- fare of tenures. The presumption, therefore, of law in case of such gifts was that the party was insane, and that the act was the result of such insanity, and not of cool de- liberation. However, according to Glanville, even a gift made in ultima voluntate was good, if assented to and con- firmed by the heir.* In the alienation of land some distinctions were made between hcereditas and qucestus, land descended as an inher- itance and land acquired by purchase. If it was an inheri- tance he might, as was said, give it to any of the before- mentioned purposes. But, on the other hand, if he had more sons than one who were muUeratos, that is, born in wedlock, he could not give any part of the inheritance to a younger son against the consent of the heir, for it might then happen, from the partiality often felt by parents towards their younger children, that, to enrich them, the eldest would be stripped of the inheritance. It was a question whether a person, having a lawful heir, might give part of the inheritance to a Dastard son; for, if he could, a bastard would be in better condition than a younger son born in wedlock ; and yet it should seem that the law allowed such donation to a bastard son. If the person who wanted to make a donation was pos- sessed only of land hj purchase, he might make a gift, but not of all his purchased land, for he was not, even in this case, allowed entirely to disinherit his son and heir; though if he had no heir, male or female, of his own body, he might give all his purchased lands forever ; and if he gave seisin thereof in his lifetime, no remote heir could invalidate the gift. Thus a man, in some cases, might give away, in his lifetime, all the land which he had himself purchased, but not, as in the civil law, make such donee his heir, for, says Glanville, solus Deus hoeredem facer e potest, nan homo. If a man had lands both by inheritance and by purchase, then he might give all his purchased land to whomsoever 1 Glanv., lib. 7, c. 1. 360 HENRY II. [chap. IH. he pleased, and afterwards might dispose of his lauds by inheritance, in a reasonable way, as before stated. If a person had lands in free socage, and had more sons than one, who by law should inherit by equal portions, the father could not give to one of them, either out of lands purchased or inherited, more than that reasonable part which would belong to him by descent of his father's inheritance : but the father might give him his share. We may here observe, that many questions of law arose^ owing to certain consequenaes which sometimes resulted from this liberality of fathers towards their children. First, suppose a knight, or freeman, having four or more sons, all born of one mother, gave to his second son, to him and his heirs, a certain reasonable part of his inheri- tance, with the consent of the eldest son and heir (to avoid all objections to the gift), and seisin was had thereof by the son, who received the profits during his life, and died in such seisin, leaving behind him his father and all his brothers alive ; there was a great doubt among lawyers, in Glanville's time, who was the person by law entitled to succeed. The father contended, he was to retain to himself the seisin of his deceased son, thinking nothing more reasonable than that the land which was disposed of by his donation, should revert again to him. To this it might be answered by the eldest son, that the father's claim could not be supported ; for it jvmopotejjejse "^^^ ^ ^ule of law, quM uemo gusdem tenementi hares etdomimu. simul potest esse hcBves et dominus,^ that no one could be both heir and lord of the same land : and by the force of the same rule, the third son would deny that the land could revert to the eldest ; for as he was heir to the whole inheritance, he could not, as before said, be at once heir and lord ; for he would become lord of the whole inheritance upon the death of his father, and therefore stood very nearly in the predicament in which we just stated the. father himself to be. Thus, as by law the land could not remain with him, there was no reason, says ' In the times of Glanville and Bracton, the reservation of services might be made either to the feoffor, or to the lord of whom the feoffor held ; they seem more commonly to have been made in the former manner : thus every such new feoffment in fee made a new tenure, and of coarse created a new •manor ; and so the law continued till stat. quia emptores, 18 Edw. I., required feoffments in fee to be made with reservation of^the services to the chief lord. CHAP. III.] OF ALIENATION OF LAND. 36l Glanville, why he should recover it ; and therefore, by the same reasoning it appeared to Glanville that the third son was to exclude all the other claimants. A like doubt arose, when a brother gave to his younger brother and his heirs a part of his land, and the younger brother died without heirs of his body ; upon which the elder took the land into his hands, as being vacant and within h'is fee, against whom his own two sons prayed an assize of the death of their uncle ; in which plea the eldest son might plead against the father, and the younger son against his elder brother, as before mentioned. And here the law is stated by Glanville to be this : that the father could not by any means retain the land, because he could not simul hceres esse dominus ; nor could it revert to the donor, with the homage necessarily incident to it, if the donee had any heir, either of his body or more remote. Again, land thus given, like other inheritances, naturally descended to the heir, but never ascended: from all of which it followed, that the plea as between the father and eldest son was at an end, as having no question in it ; but that between the eldest and younger son went on, as before stated. And in this last case the king's court had taken it upon it to determine ex oequUate, that the land so given should remain to the eldest son (particularly if he had no other fee) to hold till the pater- nal inheritance descended upon him; for while he was not yet lord of his paternal inheritance, the rule qvM nemo ejusdem tenementi simvi potest hceres esse et dominus, could not be said to stand in the way. But then it might be asked, whether, when he became by succession fora of that part of the inheritance, he was not heir also of it, as well as of the rest of the inheritance, and then fell within the meaning of that rule ? To this Glanville answers, that it was a thing not at first certain, whether the eldest son would be the heir, or not ; for should the father die first, he most undoubtedly would be so ; and then he would cease to be lawful owner of the land he had acquired by succession from the uncle, and it would revert to the y&unger son as right heir ; yet if, on the other hand, the eldest sOn die first, then it was plain he was to be the heir of the father ; and therefore these two requisites of this rule, namely, the jits hcereditarium and dominium, did not concur in the same person. Such is the 31 362 HENBT II. [chap. III. reasoning of Glanville upon this curious point, in the law of descent, as understood in his time.' There are two observations to be made respecting gifts of land, and then we shall proceed to consider the law of descent more fully. One is, that bishops and abbots, whose baronies were held by the eleemosynary gift of the king and his ancestors, could not make gifts of any part of their demesnes without the assent and confirma- tion of the king:^ the other is, that the heirs of a douor were bound to warrant to the donee and his heirs the donation, and the thing thereby given.' Having incidentally alluded to some rules which gov- erned the descent of lands, it will now be proper to treat of the law of succession more at large. They divided heirs Of descent ^^^^ thosc they called proximi, and those they considered as remotiores. Proximi were those begotten from the body, as sons and daughters : upon the failure of these, the remotiores were called in, as the nepos or neptis, the grandson or granddaughter, and so on, descending in a right line in infinitum ; then the brother and sister, and their descendants; then the avunculus,* or uncle, as well on the part of the father as of the mother; and in like manner the matertera, or aunt; and their descendants. "When therefore a person died leaving an inheritance, and having one son, it was a settled thing that the son succeeded to the whole. If he left more sons than one, then there was a difference between the case of a knight; that is, a tenant by fosdum militare, or knight's service ; and a liber sokemannus, or free sokeman. If he was a knight or tenant by military service, then, according to the law of England, the eldest son succeeded to the father in totum ; and none of his brothers had any claim whatsoever. But if he was a free sokeman, and possessed of socage-land that had been anciently divisi- ble, then the inheritance was divided among all the sons by equal parts ; saving always to the eldest son, as a mark of distinction, the capital messuage ; so, however, as he made a proportionate satisfaction to the other brothers on ' Glanv., lib. 7, c. 1. « Ibid. » Ibid., c. 2. * This is the expression used by Glanville ; which is not strictly correct ; avunculus and matertera being the uncle and aunt on the mother's side ; as the uncle on the father's side was pairum. Indeed our author, after all, passes over this in a loose way. CHAP, III.J OP DESCENT. 363 that account. But if the land was not anciently divisible, then it was the custom, in some places, for the eldest sou, to take the whole inheritance; in some, the youngest son. If a person left only a daughter, then what we have said of a son held good with regard to her. And it was a general rule, whether the father was a knight or a soke- man, that where there were more daughters than one, the inheritance should be divided among them ; saving, how- ever (as in the case of the son), the capital messuage to the eldest daughter. "Where the inheritance was thus divisible between brothers or sisters, if one of them died without heirs of the body, the share of the party deceased was divided amongst the survivors. It was a rule, in these divisible inheritances, that the husband of the eldest daughter should do homage to the chief lord for the whole fee ; the other daughters or their husbands being bound to do their services to the chief lord by the hand of the eldest, or her husband ; and not to do homage or fealty to the husband of the eldest : nor were their heirs in the first or second descent ; but those in the third descent from the younger daughters were bound by the law of the realm to do homage and pay a reasonable relief to the heir of the eldest daughter for their tenement. It was a rule, that no husbands should give away their wives' inheritance, or any part thereof, without the assent of their heirs: nor could they release any right that might belong to their heirs. We have said before, that if a person had a son and daughter, or daughters, the son succeeded in totum; and therefore, if a man had more wives than one, and had daughters from two, and at length a son from a third, this son would alone take the whole inheritance of his father ; for it was a general rule, that a woman could never take part of an inheritance with a man,' unless, perhaps, by the particular and ancient customs of some cities or towns : yet if a man had more wives than one, and had daughters from each, they all succeeded alike to the inheritance, the same as if they had been born of the same mother. Suppose a man died without leaving a son or a daughter, ' Glanville's words are, mviier nunqvam cum maseido partem capit in haredi- UUe aiigud. 364 HENET II, ' [chap. III. but had grandchildren, they succeeded in like manner as children ; those in the right line being always preferred to those in the transverse. However, we have before seen,^ that when a man left a younger son, and a grandson of his eldest son, who was dead, there was great difficulty in determining the succession in such case between the son and grandson. Some thought the younger son was more properly the right heir than the grandson ; for the eldest son not having lived till he became heir, the younger son, by outliving both his brother and father, ought prop- erly to be the father's successor. It seemed to others that the grandson should be preferred to the uncle ; for as he was heir of the body of the eldest son, and, if he had lived, would have had all his father's rights, he, it was said, should more properly succeed in the place of his father : and so Glanville thought, provided the eldest son had not been fwis-familiated by the grandfather. A son was said to be foris-familiated, if his father assigned him part of his land, and gave him seisin thereof, and did this at the request, or with the free consent of the son himself, who expressed himself satisfied with such por- tion ; and it was clear law, that in such case the heirs of the son could not demand as against their uncle, or any one else, any more of the inheritance of the grandfather than what was so assigned to their father ; though the father himself, had he survived the grandfather, might notwithstanding have claimed more. Where it hap- pened, however, that the eldest son had in his father's lifetime done homage to the chief lord of the fee for his father's inheritance, as was not unfrequently. the case, and died before his father, there it was held beyond question, that the son of such eldest son should be preferred to the uncle, although there had been a foris-familiation. Such was the law of descent in Glanville's time ; and this will very properly be followed by a short view of some of the duties incumbent on heirs ; with the inci- dents of inheritance and succession ; such as testaments, wardship, bastardy, and escheat. Heirs, says Glanville, were bound to observe the testa- ments made by their fathers, or their other of testamentB. .,■' . .', . ancestors to whom they were heirs, and to pay 1 VidearOe, 361. CHAP. III.] OF TESTAMENTS. 365 all their debts (a). For every freeman, not encumbered with debts beyond the amount of his effects, might, on his death-bed, make a reasonable division of his property, by will ; so as he complied with the customs of the place where he lived ; one of which commonly was, first, to re- member his lord by his best and principal chattel ; then the church ; and after these,, he might dispose of the re- mainder as he pleased. However the customs of particu- lar places might lay this restriction upon wills, no person was bound, by the general law of the kingdom, to leave anything by will to any particular person, but was at liberty to act as he pleased ; it being a rule of law that ultima voluntas esset libera. A woman who was mii juris might make a will ; but if she was married, she could do nothing of this sort without her husband's authority, as it would he making a will of his goods. But Glanville ^ihought it would be a proper testimony of affection and tenderness, for a husband to give to his wife rationabilem divisam, that is, a third part of his effects; this being what she would be entitled to, if she had survived him ; and it seems that it was not unfrequent for husbands to give a sort of property to their wives in this third part, even during the coverture. The passage in Glanville from which this and the fol- lowing account of testaments is taken, throws great ob- scurity upon the subject, and lays a foundation for the doubt that long divided lawyers, and is not yet settled, respecting the power of making wills of chattels, at com- mon law. After having expressly laid down, that by the general law of the kingdom no person was bound to leave anything by will to any particular person, and that the third part left to the wife was dictated rather by a moral than legal obligation, he goes on in the following remark- able words: "When a person," says he, "is about to make his will, if he has more than enough to pay his debts, then all his movables shall be divided into three equal parts ; of which one shall go to the heir, another to the wife ; the third be reserved to himself, over which he (a) The author, it is to be again observed, merely follows and translates Glanville (lib. vii., c. 5). It is to be observed, also here, tha,t the author has omitted to explain that the heirs inherited chattels as well as lands as late as the time of Hen. II., and that the law was altered some time after- wards (Seidell's Title of Honor, p. 2, c. 5, s. 21). 31* 366 HENRY II, [chap. III. has the power of disposal as he pleases ; if he dies without leaving a wife, a half is to be reserved to the testator" (a).' Thus far respecting the law of testaments for the dispo- sition of movables ; to which he adds, conformably with wh^t we have before shown, that an inheritance could not be given by last will." A testament ought to be made in the presence of two or more lawful men, either clergy or lay, being such per- sons as might afterwards become proper witnesses thereto. The executors of a testament were such persons as the tes- tator chose to appoint to undertake the charge of it. If the testator appointed none, the propinqui et consanguind, by which were meant, as may be supposed, the nearest of kin to the deceased, might interpose ; and if there was any one, whether the heir OR^a stranger, who detained any effects of the deceased, such executors or next of kin might have the following writ directed to the sheriff, to cause a reasonable division of the effects to be made : Bex vioecomiU salutem; prcedpi tibi qvM juste et sine dilatmne facias stare raHonoMem divisam N. sicut rationaUliter monstrari. pote- nt qvJbd eamfecerit, et qiibd ipsa stare deheat, etc.^ If the per- son, summoned by authority of this writ, said anything against the validity of the testament; that it was not properly made, or that the thing demanded was not be- queathed by it ; such inquiry was to be heard and deter- mined in the court Christian ; for all pleas of testaments, says Glanville, belong to the ecclesiastical judge, and are there decided upon by the testimony of those who were present at the making of the will (6).* (a) This is in accordance with the custom of gavelkind, which is a relic of the old common law or custom of the Britons and Saxons. " Let the goods of gavelkind persons," says the Custumal of Kent, " be divided into three parts, after the funeral and the debts paid, if there be lawful issue in life, so that the dead have one part, and the lawful sons and daughters another, and the wife the third ; and if there be no lawful issue in life, let the dead have one half and the wife the other half" [Robinson on Oavelkind, p. 287). Hale also recognizes the doctrine in the text, which, it will be seen, is in accordance with the laws of the Saxons (vide ante). It is true that Bracton speaks of the custom of London as leaving a freeman at liberty to bequeath his property as he pleased, and Lord Coke misunderstood this as applying generally ; but in that he was in error (Braelon, book i.). (6) We learn from this that the maxim had already become established which we find afterwards in Bracton, that pleas of freeholds could not be en- ' The progress of this doctrine, and the discussions upon it, will be related in the proper place. ' Glan., lib. 7, c. 5. » Ibid., c. 6, 7. ♦ Ibid., c. 8. CHAP. III.] OP WARDSHIP. 367 If a person was incumbered with debts, he could not make any disposition of his effects (except it was for pay- ment of his debts) without the consent of the heir ; but if there was anything remaining over and above the pay- ment of his debts, that residue was to be divided into three parts, as above mentioned ; and he might, says Glan- ville, make his will of the third part. Should the effects of the deceased not be sufficient to pay his' debts, the heir was bound to make up the deficiency out of the inheri- tance which came to him ; so that we see the reason why, under such circumstances, the heir's consent was necessary towards a will. It seems, however, that the heir was not bound to make up this deficiency, unless he was of age.' Heirs were considered in different lights, according as they were of full age or not. An heir of full age might hold himself in possession of the inheritance immediately upon the death of the ancestor ; and the lord, though he might take the fee together with the heir into his hands, was to do it with such moderation as not to cause any disseisin to the heir, for the heir might resist any violence, provided he was ready to pay his °' ^^'^^v- relief and do the other services. Where the heir to a tenant holding by military service was under age, he was to be in custody of his lord till he attained his full age, which, in such tenure, was when he had completed the twenty-first year. The son and heir of a sokeman was considered as of age when he had completed his fifteenth year ; the son of a burgess, or one holding in burgage- tenure was esteemed of age, says Glanville, when Tie could count money and measure cloth, and do all his father's business with skill and readiness. The lord, when he had custody of the son and heir, and of his fee, had thereby, to a certain degree, the full disposal thereof; tertained without the king's writ. It was thus that the Conqueror sent down justiciaries by his writ to try cases as to freeholds in the county court, as in the case of the Archbishop of Canterbury. This was certainly an innova^ tion, for the county court was originally the only jurisdiction for all cases. It is manifest that by the time of Glanville the above-mentioned maxim had become established. And so in Bracton it is stated that the sheriff exercised jurisdiction in many cases which did not belong to him ex officio; but that in such cases he acted, not as sheriff, but as justiciarms Begis (154). The importance of this principle can be easily understood ; carried out, it effected a complete revolution in our judicature. ' Glanv., lib. 7, c. 8. 368 HENRY II, [chap. III. that is, he might, during the custody, present to churches, have the marriage of women, and take all other profits and incidents which belonged to the minor and his estate, the same as he might in his own, only he could make no alienation which would affect the inheritance. The heir was, in the meantime,, to be maintained with a provision suitable to his estate ; the debts of the deceased were to be paid in proportion to the estate and time it was in cus- tody of the lord (a), who was not by such liens to be en- tirely deprived of his benefit by the custody ; with that qualification, however, lords were bound dejure to answer for debts of the ancestor. The lord also, as he had all emoluments belonging to the heir, was to act in all his concerns and prosecute all suits for recovery of his rights, where such suits were not delayed by the usual exception to the infancy of the party. But the lord was not bound to answer for the heir, neither upon a question of right or of seisin, except only in one case ; and that was, where there had fallen to the heir, since his father's death, the custody of some minor ; for then, if the minor came of age, and the inheritance was not delivered to him, he was entitled to have an assize and recognition de morte antecessoris ; and in this case, as the recognition was not by law to remain, on account of the infancy of the heir, his lord was to answer for him. If a minor was appealed of felony he was to be attached by safe and sure pledges ; but yet he was not bound to answer to the appeal till,h« was of age,^ It was the duty of those who had the custody of heirs and their fees, to restore the inheritance to the heir in good condition, and also free from debts, in proportion, as was before said, to the size of the inheritance and to the time it was in cus- tody.^ If there was any doubt whether an heir was of age or not, yet still the lord had the custody of the heir (a) What Glanville says is, that the lord is to discharge the debts, so far as the estate and the length of the custody will admit — that is, as far as the proceeds of the estate, deducting the expenses of maintenance, would admit of. The qualification here added by our author is without authority. The general doctrine of Glanville is confirmed by the Mirror. " Every guardian IB answerable for three things — 1. That he maintain the infant sufficiently; 2. That he maintain his rights and inheritance without waste ; 3. That he answer and give satisfaction of the trespasses done by the infant" (MvrroT, c. 5, s. 1 ; Bracton, 87, a ; Reg. Mag., 1. 2, c. 62 ; and Le Grand Oast. Nor., 333). ' Glanv., lib. 7, c. 9. * Ibid. CHAP. III.] OF MARRIAGE. 369 and his estate until he was proved to be 6i age by lawful men of the vicinage, upon their oaths. If an heir within age had more lords than one, the chief lord, that is, he to whom he owed allegiance for his first fee, was to have the preference of the custody ; an heir, however, so circumstanced, was still to pay to the lords of his other fees their reliefs and other services. In the case of a holding of the king in capite, the custody be- longed to the kin^ completely and fully, whether the heir held of other lords or not, for the maxim was domi- nus rex nulum habere potest parem, multb minus superiorem. But in burgage-tenure the king had not this preference to other lords. The king might commit to any one such custodies as belonged to him (a), and they were com- mitted sometimes plena jure, and sometimes not. In the latter case the committee was to render an account thereof at the exchequer ; in the former case he might present to churches and do other acts, as he might in his own estate.' This was the law concerning the custody of heirs in military tenure. The heirs of sokemen, upon the death of their ancestors, were, according to Glanville, to be in the custody of their consanguinei propinqui, which must mean, as in a former passage, the next of kin ; with this quali- fication, that if the inheritance descended ex parte patris, the custody belonged to the descendants ex parte matris; and so vice versd. For the opinion was, that the custody of a person should not, by law, belong to one who, stand- ing near the succession, might be suspected of having views upon the inheritance.'' "We shall next speak of the custody oi female heirs. If a woman was a ipinor, she was to be in the ^^^^ ^ custody of her lord till she became of full age ""''®*' (o) This is not said by Glanville, who only suggests it was done. "If the king should commit the custody to another, then the distinction will arise which is next adverted to. It appears, as Lord Littleton states, that the wardships of the crown were sold by Henry II., and mention is made, he says, of the practice, without any blame, in the charters of Henry III. and John" (Hist. Hen. II. and III, f. 109). He, however, explains that, by his statement that the other lords did the same, and they were the promoters of the charters. There can be no doubt that it was a vicious and pernicious practice, entirely contrary to legal principle, for the office of guardian is essentially a matter of personal trust and confidence. > Glanv., lib. 7, c. 10. ' Ibid., c. 11. Y 370 HENRY II, [chap. III. (a), and then the lord was bound to find her a proper marriage. If there were more than one, he was to deliver to each her reasonable portion of the inheritance. If a woman was of full age, then also she was to be in the cus- tody of her lord till she was married by his advice and disposal, for it was the law and custom of the realm that no woman who was heir to land should be married but by the disposal and assent of her lord (6) ; and this rule oper- ated so far that if any one married his daughter, who was to be his heiress, without the assent of his lord, he was by strictness of law to be forever deprived of his in- heritance ; nor could he retain it but by the mercy and pleasure of the lord. Nevertheless, when such a person applied to the lord for license to marry his daughter, the lord was bound to give his consent or show some rea- sonable cause to the contrary ; if not, the father might even proceed to marry her according to his own wish and inclination, without the lord's concurrence. Upon this subject of marrying women, Glanville puts a case : Whether a woman possessed of land in dower might marry as she pleased, without the assent of her warranter, that is, the heir of her husband ; and whether by so doing she would lose her whole dower ? Some thought she ought not to lose her dower, because such second husband was not by the law and custom of the land bound to do hxymage to the warrantor, but only a simple fealty ; which was merely, in case the wife should die before the hus- band, to preserve the homage from being entirely lost, for want of some outward mark of tenure. But notwith- standing that, G-lanville thought she was bound to obtain the assent of her warrantor, or lose her dower, unless she had other lands, either by maritagium or by inheritance; for then it was sufficient if she had the assent of the chief (a) This was fourteen (Bracton, 86, b; Tear-Book, 8 Edw. IV., 7). (6) This was, Glanville says, only lest he should be compelled to receive an enemy or improper person as tenant, i. e., military tenant, for all this ap- plied only to military tenures. Lord Littleton indeed thought the reason applied to all fiefs for which homage was done, as well as to those held by knight-service I^Hist. Hen. II. amd III., 104) ; but it is conceived that it is not so. Henry I. in his charter promised that he would take nothing for his consent, nor withhold it, unless it were proposed to unite the ward to his enemy {Leges Henrici Primi, c. 2, s. 3). It appears plainly that this usage applied only to female heirs, though it was afterwards, abusively, extended to male wards ; and even after Magna Charta, on a forced construction of the words, " Heredes mantentur sine disparagatione." CHAP. III.] * OF BASTARDY. 371 lord ; and this was on account of the simple fealty only which the husband was bound to do to the lord. If the inheritance was held of more than one lord, it was suffi- cient to obtain the assent of the chief lord.' If women, while in custody of their lords, did anything which was a cause of forfeiture (a), and this was made out against them in a lawful way, the offender lost her right to the inheritance, and her share accrued to the rest ; But if they had all incurred a forfeiture, then the whole in- heritance fell to the lord, as an escheat. Widows were not to be again in custody of their war- rantors, though, as has been already related, they were to have their assent before they married. "Women were not to forfeit their inheritance on account of any inconti- nence ; not that the maxim, putagium hcereditaiem non adi- mzY, meant this indemnity of women in case of inconti- nence, for that was to be understood of the consideration the law had of a son begotten under such circumstances, and born after lawful wedlock ; who was thereby entitled to succeed to the inheritance as a lawful heir ; according to another v\i\e^jilius kceres kgitimus est, quern nupt'm demovr- strant.^ This brings us to consider the law of legitimacy. It was held, that no hastardus^ or bastard was a legitimate or lawful heir, nor any one not born ™ ■■ y- in lawful wedlock. If any one claimed an inheritance as heir, and it was objected that he was not heir, because he was not born in lawful wedlock ; then the plea ceased in (a) "De corporibua suis forisfecerent ; " that is, forfeited tiirough inconti- nence. Lord Littleton observes "that this was a severe punishment for the frailty of a single woman, and without example in other laws ; but it un- doubtedly arose not so much from a rigorous sense of the heinousness of the fault, as from the notion of an advantage due to the lord from the marriage of his ward, which he probably might be deprived of by her being dis- honored" (3 Hist. Hen. II., 119). But a little consideration of the character of the Norman sovereigns may suggest the suspicion that this, which was obviously an indecent encroachment, and an oppressive and abusivfe exaction, was rather continued with the view of their profiting by the seduction of their wards, to rob them of their lands. Instances of conduct like this in their histories are not infrequent, and Mackintosh hints at it in the reign of John. ' Glanv., lib. 7, c. 12. _ _ ^bid. ' In German baglarl; from 603, says Spelman, which signifies infimus, and metaphorically spurius, impurus; and start, which signifies ortus, or edUua. So we say in English wpstart; as it were, sitfiito exorius. Vide Splem. voce Bastardus. 372 HENET II. * [chap. HI. the king's court, and it was commanded to the archbishop or bishop, whichsoever it might be, to make inquiry of the marriage, and signify to the king, or his justices, his judgment thereon ; for which purpose there issued a writ to the following effect : Rex episeopo salutem : Veniens coram me W. in curid med petit versus JR.fratrem suum quartam par- tem fmdi Urdus militis in viM, etc., sieut jus suum; et in quo idem E. jus non habet, ut W. dicit, eb qubd ipse bastardixs sit, natus ante matrimonium matris ipsorum. Et quoniam ad cu- riam meam non spectat agnoscere de bastardid, eos ad vos mitto, mandans ut in curid christianitat\s inde/actatis quod ad vos spe- ciat. Et cum loquela ilia debitum coram vobis finem sortitafue- ni, mihi Uteris vestris significetis, quid inde coram vobis actum juervt, etc} Upon the subject of legitimacy, there was this curious question : If a person was born before his father married his mother, whether, after the marriage such child was to be considered as a lawful heir ? And Glanville says, that though by the canons and Roman law (meaning a law of Justinian adopted in a constitution made in the time of Pope Alexa;nder III. about thirty years before) such a child was a lawful heir ; yet by the law and custom of this realm he was not to be received as an heir, to hold or claim any inheritance (a). The question, whether born before (a) Lord Littleton observes upon this that it shows the entire indepen- dence of the law of England on the canon and civil law at this time (3 Mist. Ben. jr., p. 125). No one ever supposed that the Boman law, propria vigore, bound this country ; but, as Selden put it, Valet pro ratione non pro inducto jure. And the question is, whether the Boman law was not in this, as in every other instance in which ours departed from it, right. There can be no doubt that in this country, in which the law had been mainly customary, and the spirit of insular independence, or perhaps prejudice, arising from ignorance, was so strong ; it was this spirit, rather than reason, which dictated an adherence to the national customs, often senseless, and vicious, and per- nicious, and probably of very recent introduction. Thus it was that Henry II. talked of his " customs," which had simply risen up under the Conqueror and bis sons, and were so bad that even one of them himself declared them bad (Leges Henri Primi, 1). And so it was with the custom that only those born in matrimony should inherit; as the Boman. law was otherwise, and had been recognized here for centuries, th«re can be no doubt that our law had been in accordance with it, especially as it was so in the Grand Custum- ary of Normandy (c. 27). When, therefore, in the reign of Henry III. it was proposed to assimilate our law to that of Europe, the reply of the barons, " Nolumus quod noluit leges Anglise mutari, quse hucusque usitatae sunt et approbatse," a reply so much vaunted as a proof of patriotism ; it was simply an evidence of pride, the result of prejudice, and prejudice, the result of 1 Glanv., lib. 7, c. 13, 14. CHAP, ni.] - TJSUKEKS. 373 or after marriage, we have seen, was examined before the ecclesiastical judge, whose judgment was to be reported to the king or his justices ; but when the spiritual judge had certified the answer to that question, the king's court made use of it as it pleased, and /ienied or adjudged the inheritance in dispute to either party, according to its own rule of determination ; so that the ecclesiastical court only answered whether the party was born before or after marriage ; the king's court determined who was heir.^ As a bastard could hare no heir but of his body, this gave occasion to a very particular question of inheritance and succession. If a person made a gift of land to a bas- tard, reserving a service or anything else, and received homage, and the bastard died in seisin of the land, without leaving any heir of his body, it was a doubt in Glanville's time, who was to succeed to the land ; it being clearly held that the lord could not ; though it was determined, that if a bastard died without a will, his goods went to his lord; and if he held of more than one, each was to take that which was found within his fee.^ It may be remarked here, that all the efiects of an usurer, whether he made a will or not, be- longed to the king : this was meant as a pen- alty upon usury, after the death of the party ; for in his lifetime he could not be proceeded against criminally. Among other inquisitions which used to be made for the king, one used to be made of a person dying in this of- fence (or so it was called) by twelve lawful men of the vicinage, upon their oaths : and if it was proved, all the movables and chattels of the deceased usurer were taken for the king's use ; his heir was disinherited ; and the land reverted to the lord. If a person had been notori- ously guilty of usury, but had desisted from the practice, and died a penitent, his property was not to be treated as the property of an usurer. The point therefore was, whether a man died an usurer; and only in such case could his efiects be confiscated.^ To finish the subject of descent to heirs ; it must be re- ignorance. For that beyond all doubt the Boman law is the sounder is shown by modern law, as well as by ancient usage. The French code allows, under certain restrictions, the subsequent legitimation of children (Oode Nap., s. 331, 332). » Glanv., lib. 7, c. 15. ' Ibid., c. 16. " Ibid., c. 17. 32 374 HENET II. [chap. III.' marked that next after those we have mentioned, the ultimus hceres, if he could be so called, of every Of escheat. i • i i /» i j- j 'j_t man was his lord : tor when a person died with- out a certain heir,' the lord of the fee might, of right, take into his hands and^ retain the fee, whether such lord was the king or any other person. ^Nevertheless, should any one afterwards come and say he was the right heir, he might, either by the grace of the lord, or at least by the king's writ, be let in to sue for the inheritance, and make his claim out in court ; yet in the meantime, the land remained in the lord's hands ; it being a rule, that when a lord had any doubt about the true heir to his ten- ant, he might hold the land till that was made out in due form of law. This was like what we have seen was done, when there was a doubt whether an heir was of age or not ; with this difference, that in this case the land, in the meantime, was considered as an escheat, which was to all intents and purposes the absolute property of the lord ; in the other, it was not looked upon as his own, but only as de custodid. Lands revertgd to tbe lord by escheat, not only on fail- ure of heirs, but by various causes of forfeiture. If any one was convicted of felony, or confessed it in court, he lost his inheritance by the law of the land, and it went to his lord as an escheat. Where a person held of the king in capita, in such case, as well his land as his movables and chattels, wherever they were found, were taken for the king's use. Again, if an outlaw, or one convicted of felony, held of any one but the king, then also all his movables belonged to the king, and his land was to remain in the king's hands for a year ; but at the ex- piration of that time, it was to revert to the lord of the fee ; this, however, was cum domorum subversione et arborum ' This law of uttinma hcsres, laid down so generally by Glanville, is said by himself, just before, not to take place where a bastard died without heirs of his body. The reason of this exception to the analogy of tenures does not a^ear. In cases of forfeiture where the goods even went to the king, yet the land escheated to the lord. We shall see, that in the time of Bracton, the land, in this case of bastardy, escheated to the lord; and so it does at this day. It is worthy of remark, that in Scotland, where feudal rights were in gen- eral more regarded than in England, the lord has long been deprived of this casuality, and the king is considered as the ultimug hwes not only of the bastard, but in all cases of failure of heirs ; upon the principle, jttod nuUius est, cedit domino regi. 2 filackst,, 249 ; Ersk. Prin., b. iii., tit. 10. CHAP. III.] OF MARITAGIUM. 375 exterpatione, that is, according to the barbarous and unwise policy of those days, not tin the king had first subverted all the houses, and extirpated all the trees thereon. In short, when a judgment passed in court, that a man should be exhceredaius, his inheritance reverted to the lord ©f the fee, as'an escheat. If any one was condemned for theft his movables and chattels went to the sherifi" of the county ; but the lord of the fee took the land without waiting the year, as in the former case, because theft was not an ofifence against the king's crown, as robbery and homicide were. When any one was regularly and legally outlawed, he forfeited his lands ; and though he was after- wards restored by the king's pardon, neither he nor his heirs could, by reason of such pardon, recover the. land once forfeited, against the lord ; for notwithstanding the king remitted the pains of forfeiture and outlawry as far as regarded himself, he could not thereby infringe the rights of others.' It was to illustrate the title of maritagium that we were at first led into this long digression about the law of descent, legitimacy, and escheat : to that we now return ; and shall conclude what is to be said upon it, by speaking of the tenure by which a tenant in maritagio held his estate. Maritagium was of two kinds : one was called liberum or free ; the other servitio obnozium, liable to the usual services. 1/ioerum maritagium was when a freeman gave part of his land with a woman in marriage, quit and freed from him and his heirs of all service towards the chief lord. Land so given enjoyed this immunity as low down as to the third heir; and during that time no homage was to be done : but after the third heir was dead, the land became subject to its old services, and homage was again to be done for it. If land was given in maritagium servitio obnoxium, that is, with a reservation of the legal services ; in that case, the hus- band of the woman and "his heirs, down to the third, were to perform that service, but yet without doing any homage ; but the third heir, says Glanvillfe, was to do homage for the first time, and so were all his heirs for ever after ; though, in case of liberum maritagium, we have 1 Glanv., lib. 7, c. 17. 376 HENRY II. [chap. HI. seen that homage was not to be done till after the third heir was dead. In all these cases, however, where no homage was done, yet a fealty was to be performed by the woman and her heirs, either by solemn promise or by oath, almost in the same form and words in which hom- age was done. When a man having land given him in maritagium with a woman, had by that woman an heir born, whether male or female, who was heard to cry within four walls, clam- antem et auditwn infra quatuor parietes (a), as they expressed it, and survived his wife ; then, whether the heir lived or not, the maritagium remained to the husband during his life, and after his death reverted to the donor or his heirs: but if he had no heir of his wife, then the maritagium reverted to the donor or his heirs, immediately upon her death (6). And this was a sort of reason why homage was not usually received for these maritagia. For when land was given in any way, and homage was received for it, the effect of homage was such that the land could not, by law, return to the donor or his heirs ; which would be contrary to the intention of these gifts in maritagium. If the woman who had land thus given in maritagium had sur- vived her husband, and married a second, the law was the same as to his retaining the land in case he survived, whether the first husband left an heir or not.^ If land was to be claimed either by the wife or her (a) The Mirror states that Henry I. ordained that if the husband survived the wife in such cases, and had issue, he should enjoy the land for life. This ■was what was called the " courtesy of England." It has long since been limited to life ; and, on the other hand, the condition here mentioned of the child being heard to crjr has long since been done away with, as it was only evidence of the child being born (£i<(ieto», 29, f. 1). But settlements usually provide for such contingencies. (6) Here we see the nature of trial by jury, originally as a trial by wit- nesses, and, therefore, by persons brought from the vicinage, in order that they might have knowledge of the matter. " Vicinetum " is derived from vicinus, and signifieth neighborhood, or place near at hand, or neighboring place. And the reason wherefore the jury must be of the neighborhood, is for that vicinus (facta vici.na prae sumitur scire), (Littleton, 158). The writ to summon the jurors, therefore, on the same principle directed the sheriff to summon, "homines de vicineto qui melius veritatem sciunt," vide post. Therefore it was necessary that there should be a venve laid for every triable material fact, and the venue should be the vill ; and it was necessary that there should be some hundredors on the jury, and the panel could be set aside for want of hundredors, until the act 4 Anne, c. 16, for amendment of the law. So tenacious is legal usage. ' Glanv., lib. 7, c. 18. CHAP. III.] OF HOMAGE. 377 heir, as having been given in mariiagium, there was a difference between such a claim when against the donor and his heirs, and when against a stranger. If it was against the donor and his heirs, then it might be in the election of the demandant to sue in the court Christian, or in the secular court. For questions of maritagium were considered as belonging to the ecclesiastical judge, if the demandant pleased to resort to him, on account of the mutual promises made by the man and woman at the time of the espousals. But if the suit was against a stranger, then it was to be determined in the lay court, in the same way as other suits about lay-fees. It must be observed, that such a suit, like a plea of dower, was not to be conducted without the presence of the war- rantor ; and as far as concerned the warrantor, everything was to be ordered as in an action for dower ; all which will be made plain when we come to speak of that pro- ceeding: only this must be remembered, that the third heir, after he had performed his homage, might go on with the suit without the authority of his warrantor.' The subject of homage and relief deserves further con- sideration, and will properly enough follow ^^^ ^ what has just been said (a). Upon the death °'°'^°' of the father or other ancestor, the lord of the fee was to receive the homage of the right heir whether he was of age or not, so as the heir was a male ; for women could, by law, do no homage (6), though they sometimes used to (o) The reason of homage, saja Spelman, was to preserve the memory of the tenure and of the duty of the tenant, hy making every new tenant at his entry to recognize the interest of his lord, lest that the feud, being now hereditary, and new heirs succeeding to it, they might by little and little forget their duty, and subtracting these services, at last deny the tenure itself (Spelman, JRdiq., 34). Skene considers that homage especially con- cerned service in war (de verb signi ad voc homagium). For this reason he observes that consecrated bishops did no homage. This view is also adopted by Cowell, and applied to explain the absence of homage by women. The form of homage, " I become your man in life, and limb, and earthly worship," rather supports this view. It was, moreover, feudal ; and feudality must have been military. And homage was only done for estates in fee- simple, for which reason it ceased when the feudal system became obsolete, and freehold lands became allodial. The only approach to it in leasehold lands is the fealty to the lessor's title. (6) So Glanville says, but either it is a mistake, or the law had been altered, for in the reign of Edward III. women did do homage, whether single or married, for lands belonging to her, although the form was different. Littleton says, "If a woman sole shall make homage unto her lord, she » Glanv., lib. 7, c. 18, 32* 378 HENRY II. [CHAP. lU. do fealty; yet, when they are married, their husbands were to do homage for them, in cases where it was due for the fee they held. If a male heir was a minor, the lord could not have custody of the fee nor of the heir till he had received homage ; it being a general rule, that a lord could demand no service, relief, or anything else from the heir, whether he was of age or not, till he had received homage for the fee in respect of which he claimed such relief or service ; and this was on account of the protection the heir could claim of his lord after homage, but not before. A person might do homage to different lords for different fees ; but one of these was to be the chief homage, and distinguished above the rest by being accompanied, says Glanville, with allegiance;^ which was to be performed to that lord of whom the homager held his chief freehold. Homage was to be done in this way : the person was to profess that " he became homo domini sui, the man of his lord, to bear him faith for the tenement in respect of which he did homage, to preserve his terrene honor in all things, saving only the faith he owed to the king and his heirs." From this it is clear that it would be a breach of faith and of homage for a vassal to do anything to the damage of the lord,^ unless in his own defence or at the command of the king, when his lord had taken up arms against his sovereign lord the king ; and, in gen- eral, it would be a breach of faith and of homage to do anything ad exhceredationem domini sui, vel dedecus corporis sui. If then several lords, to each of whom a tenant had done homage, should make war on each other, it was the tenant's duty to obey the commands of his chief lord and to go with him in person, if he required it, against any of shall not say, ' I become your woman,' for that is not convenient for a woman to say, that she shall become the woman to any one, but only her husband when she is wedded. But she shall say, I make to you homage, to you shall be true and faithful, ' for the tenements I hold of you.' " And he also cites a case, in the reign of Edward III., in which a man and his wife did homage and fealty for lands of the wife's. " We do you homage, and faith to you shall bear, for the tenements which we hold of you," etc., the lord holding their hands jointly between his, and they afterwards kissing him, and, after- wards, the book (lUd. ii., c. 1). Lord Littleton thinks that Glanville was right, and that the usage was afterwards altered (3 Hist. Henry II., 339), observing that bishops did no homage, the reason for which was, that they owed no feudal service. ' Owm ligeancid factum. ' Dominum simm infestare. CHAP. III.] OF HOMAGE. 379 the rest, notwithstanding which, in all other respects, the services owing to such other lords were still to be duly rendered by the tenant. The penalty of doing anything to the disherison of a lord was for the tenant and his heirs to loseforever the fee held of him ; the same if the tenant put violent hands upon him, to hurt or do him any atrocious injury.' Glanville makes it a question, whether a tenant could be put to answer in his lord's court for default in any of the above particulars, and whether the lord could distrain him, by judgment of his court, without the command of the king or his justices, or without the king's writ or that of his chief justice. And he thought that the law allowed a lord, by the judgment of his court, to call upon and distrain his homager to come to his court ; and if the homager could not purge himself against the charge of his lord terM manu, by three persons, or as many more as the court might require, he should be in misericordid dom- ini to the amount of the whole fee he held of him. Glan- ville puts another question : whether a lord could dis- train his homager to appear in his court to answer for the service of which the lord complained he deforced him, or made default in payment, and he thought that the lord might, without the command of the king or his justices ; and that in such a proceeding the lord and his homager might come to the duel, or the great assize, by means of any one of the pares who chose to make himself a witness that he had seen the tenant or his ancestors do to the lord and his ancestors the service in dispute, which he was ready to deraign or prove ; and that if the tenant was in this manner convicted judgment should be for him to lose the whole fee which he held of the lord. Where a lord found he could not in this manner justitiare, or compel his tenant to appear in his court, he was obliged to resort to the process of the curia regis ;^ that is, to the com- mand or writ of the king or his justices. Homage might be done by every freeman, as well those within age as those who were of full age, whether clergy or lay. Yet bishops consecrated could not do homage to the king, though they held their bishoprics as baronies (a), ' Glanv., lib. 9, c. 1. * Ibid, (a) Thia is a departure from Glanville. What he says is, that consecrated bishops are not in the habit of doing homage to the king, evenjor their baro- 380 HENRY II. [chap. III. but only fealty ; and this they performed with an oath. It was usual for bishops elect to do homage before their consecration.' It is to be understood that homage was not a mere per- sonal thing. It was done in respect of some benefit de- rived from property of possession. It was due in respect of lands, tenements, services, rents in certain, whether in money or other things ; but without some of these causes no homage was due to a lord, though it might be due to the king. Again, homage was not due in respect of all lands ; for it was not due on account of dower, nor free nies, " but merely fealty." And as they were not compelled to do homage before consecration, they were not bound to more than fealty. This would be so, the feudal system being military, and the reason of homage being to preserve the service, they could not be bound to it, because they were not bound to render any earthly service. Glanville says elsewhere, they held in frankalmoigne (lib, iii., c. l), and Littleton says that tenants in frankalmoign^ owed no earthly service (c. vi.). Therefore they could, it is obvious, owe no homage. Lord Littleton says, " Pope Paschal II. allowed bishops elect to do homage and take the oath of fealty before they were consecrated. This was confirmed by the constitutions of Clarendon, and from the words of Glanville it appears that about the end of Henry II.'s reign, homage was done by bishops elect. But he tells us that after they were consecrated, they took the oath of fealty. This was a material difference from what was settled by the constitutions of Clarendon ; and it is surprising that we have no ac- count of it in the history of the times " (3 Hial. Henry II., 113). What Glanville says is, not that bishops were accustomed to do fealty after conse- cration, but that they were not m the habit of doing more than that after consecration. The statement which Glanville adds, that it was " usual for the bishops elect to do homage," is to be taken with some suspicion, as the statement of the kin^s chief justiciary^ not long after a protracted contro- versy with the archbishop on the subject. Sir J. Mackintosh, alluding to the contest on the subject of investitures between Henry I. and Anselm, a former archbishop, says, the controversy was adjusted as it had been in Germany, by settling that the monarch should invest the bishop elect with his temporalities, by touching him with the sceptre (Hist, of England, vol. i.) ; and says that the article in the constitutions of Clarendon which related to the subject, followed the spirit of that compromise, although he allows that it might be historically untrue to allege the customs set up by those constitntioqs to be ancient (ibid.). The text of the arrangement may be seen in Labbe's Councils, vol. x., p. 90. Ducange defines investiture as the conferring or giving possessiop of a fief or property by a suzerain lord to his vassal [Olose. verb. Investiture). This definition shows that it could not apply to bishops who were not feudal vassals. Homage properly preceded investi- ture (Ihuxmge, Oloss. verb. Hominmn). Homage, therefore, was incident to investiture, and the main contest was about investitwre, to which homage was only an incident. But for this one reason it was a part of the great question of investiture, and the chief justiciary of Henry II. would, of course, put the case as strongly as he could for the royal cause. The popes never ob- jected to investiture by the sceptre ; what they objected to was investiture by the cross and ring, the symbols of the spirUmlty. ' Glanv., lib. 9, c. 1. CHAP. III.J OF RELIEF. 381 marriage, nor from the eldest sister on account of the fees of younger sisters, till after the third descent ; nor of a fee given in free alms.* fiomage might be received by any free man or woman, whether of age or not, as well clergy as lay. If homage had been done to a woman, and she married, it was to be done over again to the husband ; yet, in a case somewhat similar, namely, when a person, by a final concord made in court recovered land for which & relief had been paid to the chief lord, it was a question, whether the person recovering was bound to pay a relief, upon his coming into possession thereof.^ In consequence of homage being performed, there arose a mutual relation between the parties ; according to the vnle, quantum homo debet domino ex homagio, tantum illi debet dominus ex dominio; prceter solum revereniiam. Therefore, when land was given for the service and homage of the tenant, and any one afterwards instituted a suit for that land, the lord was bound to warrant it to him, or to give him in lieu thereof competens eoccamUum, an equivalent in value. When an heir who had been in custody came of age, the inheritance was restored to him without paying a re- lief; that being remitted in consideration of the profit the lord had derived from the cus- tody. A female heir, whether of age or not, was con- tinued in custody till she was married by the advice of her lord. If she had been within age when she first came into the lord's custody, then upon her marriage the in^ heritance was quit of all relief; but if she was of age when she first came into the lord's custody, though she continued some time in custody before marriage, yet her husband was to pay relief upon the marriage ; and a re- lief once paid by the husband, was an acquittal both to husband and wife, during their several lives, for any relief on account of the inheritance : so that neither the wife nor her second husband, if she had one, nor the first hus- band, should he survive her, could be called upon to pay any relief.* If the male heir was of age when his ancestor died, and was well known to be the heir, he might hold himself in > Glanv., lib. 9, c. 2. ' Ibid., c. 3. ^ Ibid., c. 3. 382 HENRY 11. [chap. III. the inheritance even against the will of the lord, as we before said ; provided he made a tender of his homage, and a reasonable relief, in the presence of credible persons. The relief of one knight's fee, according to the custom of the realm, was said to be reasonable at a hundred shil- lings. The relief in socage-tenure was one year's value of the land. As to baronies, nothing certain was fixed concerning their relief; but the relief they were to pay was measured by the pleasure and mercy of the king alone, to whom it was due (a). The law was the same in ser- jeanties.' When the lord and the heir had come to an agreement respecting what was to. be paid for relief, the heir might exact reasonable aids from his homagers; always proportioning this demand to their circumstances, and the size of their fees ; that it might not become such a grievous imposition as would entirely destroy their con- tenement, or, to use an English term which has been formed from it, their countenance, and appearance in the world : and no other measure was settled for ascertaining these aids but this regard to facts and circumstances. With the above precautions, a lord, in other cases, might exact similar aids of his tenants ; as when he made his son and heir a knight, or when he married his eldest daughter. Glanville made a question, whether lords could demand these aids of their tenants to enable them to carry on their wars ? The practice, at least, was for them never to attempt to distrain for aids on this occasion, but to leave them to the voluntary generosity of their tenants. For the other aids, so long as they were reasonable, lords might, by judg- ment of their courts, without the precept or command of the king or his chief justice, distrain their tenants by the chattels that were to be found on their fees, or, if need (a) So far from this being the law, though it is ao laid down by Glanville, that Henry I. in his charter describes it as one of the malas consuetudines, by which, under the Conqueror and his successors, the country had been op- pressed, " quibus regnum opprimebantur " " Si quis baronuni meorum com- itium sive aliornm qui de ' me tenent,' mortuus fuerit, hseres suus non redimet terram suam sicut faciebat tempore patris mei sed legitime eljusta relevacione relevabit eum," (Leg. Hen. PH., II.) The law, therefore, was, that the re- lief must be reasonable, and the chief justiciary goes on to say so, in a passage omitted by the author, to the effect that if the lord would not accept reason- able relief, he had a remedy by a certain proceeding he describes. The law was reasserted in Magna Charta, c. ii. ' Glanv., lib. 9, c. 4. CHAP. III.] OF RELIEFS AND AIDS. 383 were, by the fees themselves ; so, however, that the pro- ceeding was had regularly by the judgment of the court, and consistent with the reasonable custom thereof. If a lord could distrain his tenants for payment of these reason- able aids, much more, says Glanville, might he make dis- tress for payment of hisTelief, and for such service as was due to him on account of the fee.* Thus we see the remedy by distress had, in Glanville's time, become a process first against the chattels ; and only si opusfuerif, was there re- course to the fee itself; though it is probable, that in the origin of this summary method of compelling tenants to do their services, it was usual to take the whole fee into the'lord's hands as a forfeiture, to enable him to do that justice to himself which his tenant refused ; but this rigorous proceeding was by degrees softened down to one against the movables ; and only in default of them, against the land. Having taken this view of the nature of tenures and estates, it seems necessary to consider the order AdminiBiration of administering justice, with the process and »'Jn8««e. modes of proceeding in obtaining redress for any injury to property or to the person ; an inquiry not less interest- ing than the former, as it contains in it the first outline of that course of judicature which prevails, with consider- able alterations indeed, at this day. In pursuing this, there will be occasion to notice such parts of the law con- cerning private rights as have not already been mentioned. Pleas were divided into civil and criminal. Criminal pleas were again divided into such as belonged ad coronam domini regis, and such as were within the jurisdiction of the sheriff (a). The pleas belonging to the king's crown were, the crimen Icesce majestatis, as the death of the king, or any sedition touching his person or the realm ; pleas concerning the fraudulent concealment of treasure trove ; pleas depace domini regis ivfractd; pleas of homicide, burn- ing, robbery, rape, and the crimm falsi; all which offences were punished with death, or the loss of limbs. Only the (o) This is a mistake. Those within the jurisdiction of the sheriff were equally pleas of the crown, and originally all were within his jurisdiction. The Leges Henriei Primi define some as in mwericordia Regis. The laws of Canute had specified some which were not to be confounded for those above enunciated. But theft remained a plea of the crown, and is so called by Glanville. ' Glanv., Ub. 9, c. 8. 384 HBNRT II. [chap. III. crime of theft was excepted, whicli was within the cog- nizance of sheriff, and determinable in the county court. The sheriff, in like manner, in cases where the lord of a franchise neglected to do justice, had cognizance oimedletce, as they were then called, verbera, and plagee; unless the party complaining added, as he might if he pleased, an allegation,, de pace domini regis infraetd, namely, that it was against the king's peace.^ Civil pleas were divided in the same way ; some being entertained in the king's court, and others in that of the sheriff. In the king's court were determined pleas con- cerning baronies ; that is, manors held of the king in capite ; pleas concerning advowsons, villenage, dower unde nihil; complaints for breach of iinal concords made in the king's court'; questions of homage, reliefs, and purprest' ures ; pleas of debt owing by lay persons, or, as they were called, placita de dehitis laicorum.^ The following civil pleas belonged to the sheriff's court : pleas of right to freehold, when the court of the lord of whom the land was held, had made default in determin- ing the right ; and questions upon villenage ; and these pleas were always commenced by the king'& writ. Besides these, which were all de proprietate, there were other pleas super possessione, which were decided by recog- nition of jurors. Of all these we shall speak in their order. First, of pleas in the king's court, or miria regis, as it was then called. When any one, says Glanville, com- plained to the king or his justices concerning his fee or freehold, if " the matter was such as was proper for that tribunal, or such as the king pleased should be examined there,' the party had a writ of summons to the sheriff, di- recting him to command the wrong-doer to restore the land of which he had deforced the complainant; and un- less he did, to summon him by good summoners to appear ' In this distinction between the sheriff's jurisdiction and that of the king, we see the reason of the allegation in modern indictments and writs, vi el armis of "the king's crown and dignity," "the king's peace," and "the Eeace ; " this last expression being sufficient, after " the peace of the sheriff" ad ceased to be distinptuished as a separate jurisdiction. Glanville, lib. 1, c. I, 2. [This is a mistake. The criminal pleas before the sheriff were equally pleas of the crown, and Glanville so treats them. The sheriff, in criminal cases, was the king's justice.] ' GlauT., lib. 1, c. 3. CHAP. HI.] OF CIVIL PLEAS. ' 385 before the king or his justices, at such a day, to show wherefore he refused so to do." The following was the form of the writ : Rex vicecomiti salutem : Praecipe A. quod sine dilaiione reddat B. unam hidam terroe in villa (naming it) unde ^''"'°'"«'"- idem B. queritur, qubd prcedictus A. ei deforceat: et nisifecerii, summone eum per bonos summonitores, qubd sit ibi coram me vel justitiariis meis in crastino post oetabas clausi Paschce q,pvd (naming the place where the court sat) ostensurus quare nan fecerit, et habeas ibi summonitores, et hoc breve. Teste Ranul- ■pho de Glanvilla apud Clarendon.^ At the appointed day the party summoned either came or not, or sent a messenger to essoin^ him, that is, to make an excuse for his not coming. If he neither came, nor sent an essoin, the demandant was to appear in court, and wait his adversary for three days. If he did not appear at the fourth day, and the summoners offered to prove they had duly summoned him, another writ of summons issued, appointing his appearance in fifteen days at least ; and this writ required him, as well to answer upon the merits of the complaint, as for his contempt in disobeying the first summons. When three writs in this form had is- sued, and he neither appeared nor sent any one to essoin him, his land was taken into the king's hands, and so it remained for fifteen days ; and if he did not appear within that time, the seisin of it was adjudged to the complain- ant, nor could the owner have any remedy to recover it, but by writ of right : yet if he appeared within those fif- teen days, and was willing to replevy the land, he was com- manded to come again on the fourth day, and right should be done; when, if he appeared, the seisin was restored. Indeed, if he had appeared at the third summons, and acknowledged all the former summonses, he would lose the seisin of his land, unless he could produce a writ from the king to the justices, declaring that he had been in the king's service at the time appointed by the court, and commanding that he should not be held as a defaulter, nor suffer as such.* > Glanv., lib. 1, c. 6. ' Essonium, or Exonium, says Spelman : ex privativum, et soing, cura ; ab angustia, cura, vel labore liberare ; whicb is a more probable derivation than £fo(xi/TO9oi ; though it should signify to excuse by means of an oath ; which, to be sure, is the precise nature of an Essoin. Vide Spelm., voce Essoniare. ' Glanv., lib. 1, c. 7, 8. 33 Z 386 HENRY II. [chap. III. If the party denied that he was summoned he was to swear it duodeeimd manu; and at the appointed day, should any of the jurors who were to swear it fail, or any be lawfully excepted to, and no other put in his place, that very instant the defendant lost the seisin of his land as a defaulter. If he disproved the summons in the above way he was the same day to answer to the action. Thus far of appearance and non-appearance ; next as to essoins. If the party did not appear at the first summons, but sent a reasonable essoin, it would be received, and he might, in like manner, essoin himself three times successively. The causes of excuse, called es- soins, allowed in the king's court, were many. The prin- cipal essoin was that de infirmitate. This was of two kinds: one was de infirmitate veniendi; the other de infirmi- tate reseantiscE, of which the- first was called afterwards de malo veniendi; the latter de malo lecti. If at the first summons the essoin de infirmitate veniendi was cast, it was in the election of the complainant, upon his appearing in court to demand from the essoniator, or person who made it a lawful proof of the essoin, on the very day ; or that he should find pledges,' or make a sol- emn engagement to bring a warrant or proof of the essoin, that is, the principal summoned at a day appointed. And in this manner might the tenant be essoined three times successively. If he did not come at the third day, nor send an essoin, the court awarded that he should appear on another day in person, or by a sufficient attorney (or responsalis, as he was then called), who would be received ad lucrandum velperdendum in his place. If the party sum- moned appeared on the fourth day, after three essoins, and avowed them all, he was required to prove the truth of them by his own oath and that of another, and on the same day was to answer to the action ; and if he did not appear at the fourth day, nor send his attorney, his land was taken into the king's hands, as before mentioned. There issued also an attachment against the essoniators tanquam falsarios for not performing the engagement they had made for their principal ; and in the meantime the principal was summoned to show cause why he did not avow and make good what his essoniator had engaged for ' Glanville's words are : vd plegium inveniet, velfidem dahU. CHAP, III,] WRIT OP RIGHT, 387 in his name ; a summons went also against the pledge put in, as above mentioned, by the essoniator, to show cause why he did not produce the principal to make good the essoin.^ If the principal appeared within fifteen days, and was willing to replevy the land, a day was given him ; and if he then gave his sureties, he recovered his seisin. If he denied all the summonses, and disproved them duodecimd manu ; or, if he admitted the first, avowed his three es- soins, and on the fourth day produced the above-men- tioned writ, testifying that he was in the king's service ; he could in that case recover seisin of the land, but if he did not appear within the fifteen days, the seisin was ad- judged to the complainant, as before mentioned. The direction in the writ to the sheriff for taking the land in the case of the king was capias in manum meam ; and of that for giving possession of it to the complainant was seisias M. de tanta terrd, etc. In the same manner a man might essoin himself three times de infirmitate reseantisce, or de malo lecti; and if the party appeared not at the third summons the judgment of the court was that it be seen whether the infirmity be a languor or not. For this purpose a writ issued, com- manding the sheriff to send four lawful men of his county to view the party, and if they saw that it was lan- guor they were to appoint him to appear, or send his at- torney, in a year and a day ; but if they thought it not to be a languor they were to appoint a certain day of ap- pearance for him or his attorney, at which time the four viewers were likewise to appear and testify their view. Two essoniators were necessary to make this essoin,^ Perhaps the first two essoins might be veniendi and the third de reseantisd ; in which case persons were to be sent to view whether languor or not ; but if the first two were de reseantisd, and the third veniendi, they were adjudged as if all were veniendi, for it was a rule always to judge ac- cording to the nature of the last essoin,' We have seen that the land of a person who did not appear was taken into the king's hands. It was also the practice, if a person had appeared and answered, and a future day was given, and at that day he neither came ' Glanv., lib. 1, c. 12-15. ' Ibid., c. 18, 19. » Ibid., c. 20. 388 HENRY II. [OHAP. Ill, nor sent his attorney, that his land should be taken into the king's hands ; but Glanville states this material dif- ference, that he could not in this case replevy it ; he was also summoned to hear the judgment of the court upon his default ; however, whether he appeared or not, he lost his seisin, for the first default, unless he could avoid the summons by the before-mentioned writ de servitio regis. A person who had answered in court and departed in a lawful way might recur to the three essoins, unless there was any agreement to waive them. If a person had essoined himself once, and at the second day he neither came nor essoined himself, we have seen that' a writ issued to the sheriff to attach the essoniator tanqiiamfalsarium, as before mentioned.^ That the essoni- ator might be treated with a reasonable fairness, he also was allowed to essoin himself. Thus, if any obstacle happened to retard him in going to essoin his principal, so that he could not get to the court at the appointed day, he had till the fourth day, as his principal had ; and if any one came within that time to essoin him, he was received in like manner as the essoniator of the princi- pal.^ The principal might also, if he pleased, send a second essoniator, who was to state to the court the excuse of the principal, that he sent that excuse by an essoniator who was detained by accidents on the road, and that he would prove this as the court should award.' In all cases of essoins, if the adverse party had departed, upon a day having been given by the essoniator, the appearance of the principal within the fourth day signi- fied nothing : for the day given by the essoniator must still be observed,'' Thus far of the essoins de infirmitate veniendi, and de infirmitate reseantisce ; or, as they have since been called, de malo veniendi, and de malo lecti. Glanville mentions sev- eral others ; as that de ultra mare ; upon which the party had at least forty days. Another was, suMta aquarum inundatio, or the like unexpected accident, which waa allowed to save the four days.^ Another was called per servitium regis ; and in that case the plea was put without a day, till the party returned from the service he was on : wherefore this was never allowed to those who were ' Glanv., lib. 1, c. 20, 21. ' Ibid., c. 23. ' Ibid., c. 25, 26. » Ibid., c. 21, 22. * Ibid., c. 24. CHAP. III.] WRIT OF EIGHT : SUMMONS. constantly in the service of the king, such persons being left to the ordinary course of the court. This essoin de servitio regis lay only for persons in the king's service before the plea was commenced. If any went into the king's service after the plea commenced, and essoined himself, there was this difference, whether he was there per rmrtdatam regis ex necessitate, or ex voluntate, without any mandate. In the former case, the above-mentioned order was observed, and the plea was put sine die: in the latter, it was not. Another distinction was made, whether the service was ultra mare, or dtra mare ; if the former, he had the usual forty days, and was expected at the expiration of them to appear and show the king's writ, as we have before seen : in the latter, it was at the discretion of the justices to give a less or a greater time, as they thought it best suited the king's service.' There was an essoin per infirmitatem, which infirmity must be such as had happened since the party arrived in the town where the court was. In this case the court ordered that he should appear the next day, and so on for three days successively; and if he made the same excuse the third day, then four knights were directed by the court to attend and see whether he was able to make his appearance or not : if not, and they testified the same in court, he had a respite for, at least, fifteen days.'' Another essoin was de esse in peregrinaUone. There was a distinction in this case, as in that of the king's service, whether the party had commenced his journey before the suit, or since. If he had been summoned first, the pro- ceeding took its course, as before stated: if not, then there was a difference, whether his journey was towards Jerusalem or otherways. In the former case, he had a respite of a year and a day, at least ; in other cases, the respite lay in the discretion of the justices.' Having considered the circumstances relating to the tenant's appearance in court, let us pause a while, and look back to the nature of the writ ™°™™=- which was to compel this appearance, and the method taken for its execution. The writ of summons had in it this clause addressed to the sheriff, "e^ habeas ibi summoni- fores, et hoc breve : " in consequence of which the first inquiry, • Glanv., lib. 1, c. 27. ' Ibid., c. 28. = Ibid., c. 29. 33* 390 HENRY II. [chap. III. when the demandant offered himself at the appointed day in court, was whether the sheriff had there the writ and the summoners. If he had, and the summons was proved, they proceeded as before mentioned ; but if the sheriff did not appear within the fourth day (which was allowed also to the tenant), then there issued a writ de secundd summonitione, directing him to summon the tenant, and to appear himself and show cause why he did not summon him upon the first writ. This contained the first writ of summons, with the addition of this clause : et tu ipse sisibi ostensurus quare illam summoniUonem ei non feceris, sicut abi prceceptumfuit per aliud breve meum, et habeas ibi hoe breve, et illud aliud breve. If the sheriff came at the day, and confessed that he had not executed the writ, he was then, as they termed it, in misericordid regis, that is, he was amerced ; the demandant lost a day without effect, and the tenant was to be summoned again : but if the sheriff averred that he commanded lawful summoners to make the first summons, and they, being present, admitted it, they as well as the sheriff were amerced, if they had not obeyed it. But if they denied that the sheriff gave them charge of the summons, then there was a distinction, whether the sheriff gave it in the county court or not. Such matters ought, properly, to be transacted in that court ; and if the plea was commenced some time before the county court, Grianville says, attaehiabitur usque ad corrv- itatum, and then a complete summons was to be made. If, then, the summoners had been enjoined in the county, and, it was so proved, the summoners were amerced ; for this was a solemn act, which they would not be allowed to deny : if out of the county, and they denied the com- mand, then the sheriff alone was amerced, for executing the writ in a private and improper manner: for all public acts, such as enjoining summons to be made, taking pledges of prosecuting, and pledges de sta.ndo ad rectum, ought to be transacted in a public manner, that there might be no debate concerning such prefatory process ; a circumstance which would lead to great impediments in suits. If the summoners were not present at the ap- pointed day, but sent their essoniators, who essoined them ; and added, that they had properly summoned the party ; in that case, the first day was considered as not lost to the demandant, and the summoners were amerced CHAP. III.] WRIT OF RIGHT : SUMMONS. 391 for not appearing and proving the summons, as was enjoined them, unless they could excuse themselves by the king's writ de servitio. It should be remembered, that one or other of the summoners might excuse himself at the first day ; and in that case the first day was not considered as lost to the demandant.' Such was the proceeding where the tenant was simply summoned, without any pledges being given, ofattach- It may be proper to mention in this place, what '"^'"■ the process would be, when an attachment was necessary. If the suit was of a kind to make it necessary for the tenant to find pledges de stando ad rectum for his appear- ance (as was the case in pleas for breach of a final concord made before the king or his justices, and for novel dis- seisin), and these pledges had been recorded in the county court, or before the justices ; then if the tenant did not appear, nor essoin himself, the pledges were adjudged to be amerced, and further pledges were required, to engage for his answering to the suit. This was to be done three times ; and if he did not come at the third summons, his land was taken into the king's hands, in like manner as before mentioned ; and the pledges likewise were amerced, and summoned to appear in court at a certain day, in order to hear the judgment. This was the course of attachment in civil causes : but in criminal ones, as in those de pace domini regis infractd, if the party did not appear at the third summons, there issued a capias to take the body, the pledges being amerced as in the former cases.^ Thus far of the default of the tenant. If the demand- ant did not appear at the first day, he might essoin him- self in like manner as the tenant. If he neglected both, the tenant was dismissed sine die; so, however, as that the demandant might institute another suit for the same cause of action. But as to this, and the consequence of the tenant's default, there was a diversity of opinions in Glanville's time. Some held, that he only lost his first writ, with his costs and expenses, but not his action ; so that he was at liberty to commence another: others thought he lost his action totally, without any right of recovery ; and that he should be amerced for his contempt of court. Others were of opinion, that he lay at the ' Glanv., lib. 1, c. 30, 31. ^ Ibid., c. 31. 392 HENRY ir. [chap. III. king's mercy, whether he should be admitted to bring his action again. In either case, if the demandant had found pledges de clamors suo prosequendo, as was the case in some suits, his pledges were likewise to be amerced. Glanville further adds, that in criminal matters and those relating to the peace, where the king had an interest, as he was bound to prosecute, his body was to be taken and kept in custody until he prosecuted his appeal : besides, which, his pledges were still to be amerced.' If both de- mandant and tenant were absent at the day, it was in the discretion of the king or his justices to proceed against both ; against the tenant for contempt of court, and the demandant for false claim.^ When obedience had been paid to the writs of summons, and both parties were in court, the demandant made his demand of the land in question: and then the tenant might, if he pleased, pray a view of the land. If the tenant had no other land in the same vill, the view was made without delay ; but if he had, the tenant was res- pited, and another day given in court. When he de- parted in this manner from court, he might claim three essoins ; and a writ was directed to the sheriff to send liberos et legales homines (not specifying, any number) of the vicinage of the vill to view the land in question, and to have four of them to certify their view to the court.* After the three essoins accompanying the view, and after both parties had appeared in court, then the de- mandant was to set forth his claim in the following man- ner ; Peto, etc., " I demand against B. one hide of land in such a vill (naming it) as my right and inheritance, of which my father (or grandfather, as it might be) was seized in his demesne as of fee, in the time of Henry I. (or after the first coronation of the king, as it might be), and from which he received- produce to the value of fifty shillings at least (as in corn, hay, and other produce) ; and this I am ready to prove by this my free counting upon man John : and if anything should happen to '■'" ""' him ; by him, or him " (for ne could name several, though only one could wage battle) " who saw and heard this." Or he might conclude in this form : " and this I am ready to prove by this my free man John, whom his father, on ' Glanv., lib. 1, c, 32. » jbid., c. 33. ' Ibid., lib. % c. 1, 2. CHAP. III.] WRIT OF aiSHT : TRIAL BY BATTLE. 393 his death-bed, enjoined, by the faith a son owes a father, that if he ever heard of any plea being moved concerning this land, he would deraign (or prove) this,^ as what his father had seen and heard." ^ This was the manner in which the demandant spread out the substance of his writ; and his reliance was always upon the testimony de vim et auditu. After the demandant had thus made his claim, it was in the election of the tenant, whether he would defend by duel, or avail himself of the privilege ^''° *"°'" granted by the king's late statute, and demand that a rec- ognition should be made, which of the two had the greatest right to the land. If he chose the duel, he was to defend his rights verba in vzrbum-, as the demandant had set it forth ; either in person, or by some fit champion. It was a rule, that when the duel was once waged, the tenant could not claim the benefit of the new law. After the duel was waged, the tenant might essoin him- self three times, as for himself ; and in addition to these, three times in respect of his champion. When all these essoins were elapsed, the demandant was to bring his champion into court, ready for the engagement ; the champion was to be the same person upon whom he put the proof in his claim : nor could he put any one in his place after the duel was once waged. If he who waged the duel happened to die, and that was declared by the voice of the vicinage, he might recur to one of the others named in the claim ; or even a stranger, if that stranger was qualified to be a proper witness ; for that qualification was always required in the champion of the demandant. But this was only where the champion died by a natural death; for if it happened by any fault or neglect of his own, no other could be substituted in his place, and the demandant lost his suit. G-lanville states it as a question, whether the demandant's champion himself could nomi- nate any one in his place; and he thought, that by the old and established custom of the realm, he could not appoint any one, except his son born in lawful wedlock. As we before said, the champion of the demandant must be a person who could be a proper witness of the matter ^ Glanville's words are : Hoc diraiionaret, mut id quod paler mv^ mdit, et audivU. » Glanv., lib. 2, c. 3. 394 HENRY II. [chap. III. in question per visum et auditum ; the demandant of conse- quence could not be his own champion; but the tenant might defend himself either in person, or by another fit champion. If the champion of the tenant died, it was a question what was to be done; whether the tenant might defend himself by some other, or was to lose his suit, or only seisin of the land. Glanville thought it was to be ordered exactly as in case of the demandant's champion dying. It sometimes happened, that the champion was a person hired for a reward. This was a good cause of exception ; and if the adverse party offered to prove it by one who saw the reward given, he was to be heard to this point ; and the duel in the meantime was deferred. If the cham- pion of the demandant was convicted of this charge, or was vanquished in the duel upon the point of right, the demandant lost his suit, and the champion lost his legem terrce ; that is, he was never after to be received as a wit- ness to wage duel for any one ; though he might in a cause of his own, either as defendant or appellant, in mat- ters of the peace and of personal injury ; he might also defend by duel his own right to a fee and inheritance. In addition to the loss of his law, he was to be fined in the penalty of sixty shillings, nomine recreandsoB, on account of his cowardice. If the champion of the tenant was con- quered, his principal lost the land in question, with all the fruits and produce found on it .at the time of the seisin, and was never to be heard in a court of justice con- cerning the same; for it was a rule, that whatever was once determined in court by duel, remained ever after fixed and unalterable. There, accordingly, issued a writ to the sheriff", qvi)d, sine dilatione seisias M. de und hidd terrce, etc. — quia ea hida terrce adjudicata est ei in curid med perjinem duelli. When the champion of the demandant was con- quered, as before mentioned, the tenant was quit-claimed^ from any right of the demandant to recover against him. This was the course of proceeding, when the tenant, in a writ of right, chose to defend his right by duel.* But the tenant might avail himself of the provision lately made by Henry II., and put himself upon the assize; to which the demandant might consent, and put himself also upon the assize.. ^ Quietus clamabaiur de ejus clameo. ' Glanv., lib. 2 c. 4 5. CHAP. III.] OF THE ASSIZE. 395 If the demandant had expressed before the justices in open court 1 his consent to put himself on the 9,ssize, he was not allowed to retract, but must °'"""^''™- stand or fall by the assize, unless he could show some good cause why the assize should not pass between them. One cause which might be shown, was, that they were of the same blood, and descended from the same stock whence the inheritance came. If this was admitted by the other party, the assize was waived, and the question was argued and determined by the court; it being a point of law, which was the nearest to the first stock, and the heir with the better title. In this manner the nearest heir obtained the land, unless it could be shown that he or his ancestor had any way lost it, sold it, made a gift of it, changed it, or by any other means had parted with it ; and if the cause was rested upon any of these points of fact, it might be determined, says Glanville, by the duel. Suppose the_ person who had put himself on the assize, had denied this impediment of relationship ; such a ques- tion was tried by calling into court the common relations of both parties. If these agreed unanimously that they were related, it was usual to abide by this declaration ; but if one of the litigants still continued to deny it to be so, the last resort was to the vicinage ; and if they agreed with the relations, this complete testimony was acquiesced in. Should the relations differ in their testimony, the vicinage was in like manner called in, and their verdict was decisive. If, upon this inquisition being made, it appeared to the court and justices that the parties were not descended from the same stock, the person who made the exception was to lose his suit. If there was no exception taken, then the assize proceeded, and its determination was as final as that by duel.^ Before we enter on the proceeding of the assize, let us reflect with Glanville upon the nature and design of this innovation upon the old method of trial. " The assize," says that author,^ " is a royal benefit conferred on the ' So I construe coram juslilius in banco sedentibus, though this phrase has been ciuoted by some persons to show that, in the time of Glanville, there were justices de banco, in the modern sense of those words; a construction which this passage will certainly not warrant. " Glanv., lib. 2, c. 6. ' The words of Glanville are: Est autem assisa regale quoddam benefidvm dementid principis, de concUio proeerum populU induUum, I quote this from 396 HENRY II. [chap. III. nation by the prince in his clemency, by the advice of his nobles, as an expedient {a) whereby the lives and interests of his subjects might be preserved, and their property and rights enjoyed, without being any longer obliged to submit (a) Nevertheless (whatever may be the true reading, as to which the Mirror, Bracton, and Fleta, all contemporary authorities, support the reading con- tested by the author), it can be clearly shown from history that the constitu- tion was not established either by Henry II. or Glanville ; nor does Glan- ville say so, nor say (as the author evidently supposes him to mean) that there was any formal ordinance or constitution establishing it, in this reign or in any other. What he says is merely that it was " a constitution which the subject owes to the administration of justice, under the royal authority, with the advice of his council," that is, the chancellors and chief justiciaries for the time being. There is nothing to denote or indicate that Henry II. was particularly referred to, and Glanville himself was chief justiciary, and would well know if there was any new ordinance or constitution establishing the trial, and would state it if there had been ; but he does not state anything of the kind. And he speaks of the assize, all through his work, as a trial by twelve jurors, who are called "recognitors," because they found their verdict upon their own knowledge ; and the trial is called an assize merely because it decided the right to real property, whereas trial by jury was a general term applicable to all matters. The assize, then, was simply trial by jury, regulated and adapted to the trial of real actions in the kin^s court. At the Conquest the jurisdiction in real actions was in the county courts, and then, as we have seen, the great case of the Archbishop of Canterbury, a writ of right was tried in the county court of Kent, and tried by a jury. And in the laws of Henry I., the county court is described as the "curia regis," and no allusion is made to any othei', unless it be the exchequer, as a fiscal tribunal. And in the earlier and older part of the Mirror, in like manner, the only kind of court described directs the sheriff to try the case. It had, however, by slow degrees, been contrived to bring the jurisdiction into the king's court, which, be it observed, at this time followed the king's household, wherever he was. And a new procedure was required to provide for trial by jury in the king's court of assizes of land in another country. That this was all, is clear from the fact that in the reign of the Conqueror cases of writs of right were tried by juries in the county court. Lord Coke gives the record in the Kent case, and it appears that it was a writ of right. That, therefore, in reality was just the same proceeding as under the assize, and except that the assize was in the kin^s court, and not in the county, for which reason Magna Charta provided that the assizes should be taken in the counties. the last edition of Glanville, adhering to the reading which is warranted by the consent of the Harleian, Cottonian, and Bodleian manuscripts, in oppo- sition to the old printed text, which reads magna assisa, etc., an epithet which, I am clear, has been interpolated in this and other passages of Glanville by a later hand, at a period when the distinction between the great assize and other assizes had grown familiar among lawyers. This corruption of the text in so remarkable a passage as the present, has had the effect of establish- ing a vulgar opinion, that the alteration made by Henry II. related only to the trial.in the writof right; an opinion which is not warranted by the his- tory of this revolution, and which is left without any support, as "it should seem, when the concurring testimony of these three MS8. is against the in- sertion of this epithet in most of the places where it is used. CHAP. III.] OF THE ASSIZE. 397 to the doubtful chance of the duel. After this "(continues he) " the calamity of a violent death, which sometimes happened to champions, might be avoided, as well as that perpetual infamy and disgrace attendant upon the van- quished, when he had once pronounced the infestum et in- verecundum verbum." The horrible word here alluded to was craven; by which the champion signified that he yielded, and submitted himself to all the consequences attending such a defeat. "This legal institution," says Glanville, "is founded in the greatest equity, and the fullest desire of doing justice. For a question of right, which, after many and long delays, can hardly ever be made out by duel, is investigated with despatch and ease by the benefit of this constitution. The assize itself is not clogged with so many essoins as the duel. By this the expenses of the poor are spared, and the labor of all is shortened. In fine, as the credit of many fit witnesses has a greater influence in judicial inquiries than that of one only; so this constitution contains in it more justice than the duel. The duel proceeds upon the testimony of one witness only (a); this constitution requires the oaths of at least twelve lawful men." ' Such is the manner in which Glanville speaks of the institution of the assize. The proceeding by assize was thus : The party who had put himself upon the assize, sued out a writ depace habendd. This was to prohibit the lord (if the suit was in the lord's court) from entertaining any suit, in which the duel had not been already waged, between the same parties for the same land, because one of the parties had put himself upon the king's assize and had prayed a recognition to be made, who had the most right.^ Upon this, the demandant came (o) Here the author has misunderstood Glanville, who says that the trial by duel proceeds upon the oath of one juror only, each of the parties being sworn to the truth of his case, and hence the very title of the mode of trial in the Mirror is "Jwamentum Dudli" (c. iii., s. 24). And, as our author else- where says, though he constantly forgets, the jurors were witnesses. Hence, when Glanville goes on to say that in the assize there must be the oaths of twelve men, he means that they are jurors, for what were jurors but men sworn ? And hence in other passages, wherever he speaks of the assize, he speaks of it as tried by twelve jurors (vide lib. ?iii., c. vii., lib. c. 11). Therefore the assize was simply trial by jury instead of trial by battle. The trial was called the recognition, for the very reason that as jurors found their verdict at that time upon their own knowledge, they were said to recognize ; and so were recognitors; but they were for that very reason jurors. 1 Glanv., lib. 2, o. 7. '' Ibid., o. 8, 9. 34 898 HENRY II. [chap. III. to the court, and prayed another writ, whereby four lawful knights of the county might be directed to choose twelve lawful knights of the vicinage, who should say upon their oaths, which party had most right to the land in ques- tion. As this is the first process for the return of jurors of which we have any mention, it may be proper to insert it at length. It ran in these words : liex vicecomiti salutem. Summone per bonos summonitores quatuor legales milites de vidneto de Stoke, qubd sint ad claiisum. Paschce coram me vel justiMis meis apud Westmonasterium ad eligendum super sacra- mentum suum duodeeim legales militesde eodem vidneto, qui meliiis veritatem sciant, ad recognoseendum super sacramentum suum utrum, M. aut B. majus jus habeat in unci hidd terrae in Stoke quam M. clamat versus R. per breve meum, et unde R. qui tenens est, posuit se in assisam meam, et petit reeognitionem fieri, quis eorum majvsjus habeat in terrd Uld, et nomina eofum inbreviari facias. Et summone per bonos summonitores R. qui terram illam tenet, qubd tunc sit ibi audvturus illam electionem,, et habeas ibi summonitores, etc. At the day appointed the tenant might essoin himself three times ; for it was a rule, that as often as either party appeared in court, and did what he was commanded by the law to do, he might again recur to his three essoins. But if this was allowed, tne consequence would be, that as many or more essoins would intervene in the proceed- ing by the assize than by duel, which would ill agree with what we have just said about the conciseness of this new method. For suppose the tenant essoined himself three times, on the election of the twelve knights by the four ; afterwards when he appeared in court, some or other of the four knights might essoin himself ; and then, after these essoins, the tenant might again essoin himself afresh ; so that the assize would hardly ever be brought to any effect ; it was therefore necessary to defeat the operation of the above rule, in this instance. A constitu- tion was accordingly passed, enabling the court to make order for removing these obstacles, and expediting the proceeding ; in pursuance of which, when the four knights appeared at the appointed day in court, ready to choose the twelve knights, they were authorized, whether the tenant appeared or not, to proceed to the election. If he had been present, he might make a lawful exception to any of the twelve ; and therefore the court would, in his CHAP. III.] OF THE ASSIZE. 399 absence, direct more than twelve to be elected, that when he appeared, he might have a greater chance to find twelve unexceptionable jurors. Jurors, says Glanville, might be excepted against in the same manner as witnesses were rejected in the court Christian ; jurors being in fact only witnesses, and the testimony of witnesses being always considered as a matter of canonical regulation. So desirous were they of avoiding delay, that upon the tenant appearing, if all the four knights did not appear, yet by the advice of the court, and assent of parties, one of the knights, taking two or three others of the county then in court, though not summoned, might proceed to elect the twelve ; though, to avoid all cavil, and in order to have enough to make the election, they usually had ' the caution to call six or more knights to court. In all such points, the discretion of the court was suffered to govern the established course of proceeding ; which, says Glanville, the king or his justices might temper and ac- commodate to the equity of the case then before them.^ When the twelve knights were elected, they were sum- moned by the following writ : Rex vicecomiti salutem. Sum- mone per bonos summonitares illos duodecim milites, scilicet, A. B. etc., qubd sint die, etc., coram me vel justiUis meis ad, etc., parati sacramento recognoscere utrum It. vel N. majus jus hor- beat in una hidd ten or, quam prcedictus i?. qui clamat versus prmdietum N. et unde prcedictus iV. qui rem illam tenet, posuit se in assisam nostram, et petiit inde recognitionem, quis eorum majus jus habeat in re petitd ; et interim terram illam, unde ez- igitur servitium, videant; et summone per bonos summonitores N. qui rem ipsam tenet, qubd tunc sit ibi audituru^ illam recog- nitionem. At the day appointed for the knights to make their recognition, no essoin could be cast by the tenant, nor was his presence necessary ; as he had once put him- self upon the assize, he had now nothing to say why the recognition should not proceed. It was different with regard to the demandant ; for if he essoined himself, which he might do, the assize remained for that day, and an- other day was given ; for it was a rule, that though any one might lose by his default of appearance, yet no one should gain anything if not present in court. Perdere po- test quis propter defaltum, lucrari verb nemo potest omninb absens." ' Glanv., lib. 2, c. 12. ' Ibid., c. 15, 16. 400 HENRY II. [chap. III. The assize being about to make their recognition, it is next to be considered how they were enabled to do it. Now, some, or all, might know the truth of the matter, or all might be ignorant of it. If none of them knew anything of the matter, and they testified the same in court, upon their oaths, the court resorted to others, till they found those who did know the truth. If some were acquainted with the fact, and some not, the latter were rejected, and others called in, till twelve at least were found who could agree. Again, if some were for one of the parties, and some for the other, fresh jurors were to be added till twelve were found who agreed in opinion for one of the parties. It is to be observed, that all who were called in, were to swear that they would not speak what was false, nor knowingly be silent as to what was true ; and the knowledge they were expected to have of the matter must have been from what they themselves had seen or heard, or from declarations of their fathers, and such evidence as claimed equal credit with that of their own ears or eyes. Per proprium visum mum, et audi- tum, vel per verba patrum suorum, etper talia quibus fjdem tene- antwr habere ut propriis} When the twelve knights were agreed in the truth, they then proceeded formally to recognize, whether the demandant had most right in the thing in question. If they said the tenant had most right, or said that which satisfied the king or his justices that he had most right, then the judgment of the court was, that he should go quit of the demandant forever, so as the demandant should never be heard again in court with effect ; for a suit once lawfully determined by the king's great assize, could never be stirred again on any occasion whatever. If the assize were of opinion for the demandant, and the court gave judgment accordingly, then the adversary lost the land in question, with all its fruits and profits found there at the time of the seisin." Upon this there issued a writ of execution, qubd seisias N. de und hidd, etc., quia idem iV. dirationavit terram illam in curia medper recognitionem, etc.,^ reciting the mode of trial, as the before-mentioned writ of seisin did the duel. We may here notice, that the duel and assize had become so 1 Glanv., lib. 2, c. 17. ' Ibid., c. 18. = Ibid., c. 20. CHAP. III.] OF THE ASSIZE. 401 coextensive in their consequences, as for it to grow into a rule, that the duel should not be where the assize was ^ot allowed, nor the .assize where there was no duel.' Assizes lay concerning services, land, demands of service, rights of advowson, and that not only against a stranger, but even against a lord.^ The regal constitution by which the assize was appointed (a), had also ordained a punishment for jurors temere ju- rantum, or who swore falsely. If any were proved, or confessed themselves, guilty of perjury, they were to be spoiled of all their chattels and movables, which were forfeited to the crown ; but they were permitted by the clemency of the king to retain their freeholds.; they were to be thrown into prison, and be there detained for a year at least ; they were to lose the kgem terrce, or, in other words, incur the brand of perpetual infamy.* It was a question in Glanville's time, what was to be done, if no knights could be found, of the vicinage or of the county, who knew the truth of the matter, whether the tenant was therefore to prevail, as the person in pos- session ; or the demandant to lose his right, if he had any. Suppose, says he, two or three lawful men, or any other number less than twelve, who were witnesses of the fact, offered themselves in court ad dirationandum, and said and did everything in court proper for the occasion, could they or could they not be heard.^ This was the order of proceeding, when the presence of the tenant only was necessary, and no one else vouching to was brought in to answer. There were many wamnty. cases where it was requisite to call in a third person ; as (a) There was no such constitution ; it is a complete mistake of the author's. What Glanville alludes to is the common law punishment of false jurors, which is mentioned in the Mirror. All this he calls the twelve triers jurors, or recognitors, because bemg jurors, they recognized the truth of their own knowledge. What Glanville says is, that a punishment is ordained for those who falsely swear in such a proceeding (i. e., a trial by jury), and is, there- fore, introduced into this institution. And then he simply states the common law as to attaint. Hence Lord Coke refers to this chapter, to prove that an attaint lay at common law (2 Just., 236). And the Mirror states it as appli- cable to trial by jury (o. 5). Glanville, being chief justiciary, simply made some regulations for the conduct of the proceeding, and then for the sake of flattery calls it a royal institution. In the Mirror are several instances of ordinances, by chief justiciaries, relating to the administration of justice, and more than one of them by Glanville himself, vide anie. » Glanv., lib. 2, c. 19. « Ibid., c. 13. » Ibid., c. 19. « Ibid., c. 21. 34* 2A 402 HENRY II. [chap. III. when the tenant declared in court that the thing in ques- tion was not his own, but that he held it ex commodato, or ex locato, or in vadium, that is, in gage or pledge, or com- mitted to his custody, or in some other way entrusted to him by the real owner ; or if he should declare the thing was his own, but that he had some one to warrant it, as the person who made a gift of it, or sold it, or gave it in ex- change : or should he declare in court, that the thing was not his, but belonging to another person, that person was to be summoned by some other similar writ ; and so the suit was to be carried on afresh against him. When he appeared in court, he, in like manner, might admit the thing to be his, or not. If he said it was not his, the tenant who had said it was, ipso facto lost the land without recovery, and was summoned in order to hear the judgment of the court to that effect ; and whether he came or not, the adversary recovered seisin. When the tenant called a person for any of the above rea- sons to warrant the land, a day was given him to have in court his warrantor; and upon this he was entitled to three essoins respecting himself, and three others respect- ing the person of his warrantor. At length the warrantor appearing in court, he either warranted the land or not. If he would enter into the warranty, the suit was from thence carried on with him, and everything went under his name, in lieu of the tenant ; not but that the tenant, if he had essoined himself, would be considered as a defaulter, if absent. If the warrantor, being present in court, de- clined entering into the warrant, the suit was to be carried on between the tenant and him ; and after allegations on both sides, they might come to the duel, although, per- haps, the tenant might not be able to show a charter of warranty, but could only produce a fit witness to deraign it. The object of all this was, to prove the warrantor to be bound to the warranty, which would make the tenant entirely safe ; for should the land be recovered from him, the warrantor, if able, was bound by law to give him an excamUum, as they called it, or an equivalent in recompense. As this was the effect of a warranty when proved, it often happened that a person called to warranty was shy of coming to court : at the prayer of the tenant, therefore, the court would think it advisable to compel him, by a writ of summons ad warraniizandum} » Glanv., lib. 3, c. 1-3. CHAP. III.] WRIT OF EIGHT. 403 At the day appointed, this person, like all others who were summoned to appear in court, might essoin himself three times. At the third essoin the court would award, that at the fourth appointed day he, or some attorney for him, should appear ; but if he did not, there seems to have been a doubt what should be done to punish the contempt : for if the land in question was taken into the king's hands, this would seem unjust to the tenant, who had not been ad- judged in default ; and yet if it was "Hot done, there seemed to be a want of justice to the demandant, whose suit was delayed. Indeed Grlanville thought that, notwithstanding these reasons, the law and custom of the realm required the land to be taken ; for no hardship would fall on the tenant, it being a rule, that wheresoever a person lost his land through the default of his warrantor, the warrantor should make him a recompense in value.^ It sometimes happened that a tenant neglected to call in the person on whom he had a claim of warranty, and defended the right himself. In this case, if he lost it, he could have no recovery against his warrantor. It was by some made a question whether, upon the same principle as the tenant might defend his right by duel without the assent and presence of his warrantor, he might put him- self upon the king's great assize without his assent and presence, but Glanville thought that the same reason should prevail in both cases.^ A suit was sometimes impeded by the absence of lords, as when the demandant claimed the land as belonging to the fee of one and the tenant as belonging to the fee of another lord. In this case each lord used to be sum- moned to appear in court, that the plea might be heard and determined in their presence, lest any injury might otherwise be done to their rights. The lords, when sum- moned, might essoin themselves three times, as was usual in other cases. If the lord of the tenant had had his three essoins, and the court had directed him to appear •or send his attorney, and he made default, the judgment then was for the tenant to answer and take upon him the defence ; and if he prevailed he retained the land, and for the future did his suit and service to the king, the lord having lost it by his default till he appeared and did as > Glanv., lib. 3, c. 4. » Ibid., c. 5. 404 HENRY II, [chap. III. the law required. In the same manner the lord of the demandant might essoin himself three times ; and if, after that he absented himself, it was Glanville's opinion that his essoniators and the person of the demandant should be attached for contempt of court, and in that manner be compelled to appear.^ "When the two lords had appeared, and the lord of the tenant said that the land was in his fee, he might take upon him the defence of the suit, or intrust it to the ten- ant ; and in either case, should they prevail, their several rights were secured ; but if they lost the suit the lord lost his service, as well as the tenant his land, without any recovery. If the tenant's lord, being present in court, failed of the warranty, and the tenant maintained that he was bound to the warranty because he or his ancestors had done such and such service to him or his ancestors as lords of that fee, and he could produce those who had heard and seen this, or a proper witness to deraign it, or other fit and sufficient proof, as the court should award ; if the tenant could say this, then he and the lord might interplead with each other.^ If the demandant's lord en- tered into the warranty, and they failed in the suit, the lord in like manner lost his service. But the fate of the demandant was different from that of the tenant if his lord would not enter into the warranty, for he was amerced for his false claim.* Thus has the reader been conducted through the pro- ceeding in a writ of right, with all its incidents and ap- pendagesj when prosecuted for the recovery of land. This relation has been somewhat long and minute, but as it contains in it, with some small alteration, the scheme of process and proceeding in most other actions, it was in- dispensably necessary to trace it with some exactness. After this the remainder of our inquiry into the course of judicial remedies will be more easy, and the matter will be more various and entertaining. We shall now proceed to speak of other methods of recovering property ;- and first of advowsons. An action for the advowson of a church might be Writ of right of brought either while the church was full, or advowson. -^ixeu. it was vacant. If the church was var » Glanv., lib. 3, c. 6. « Ibid., c. 7. ' Ibid., c. 8. CHAP. III.] WRIT OF RIGHT OF ADVOWSON. 405 cant, and any one obstructed the person who thought himself the patron, in presenting a clerk, and claimed the presentation to himself, there was a difference to be made, whether the contest was for the advowson ; that is, upon the right of presenting, or upon the last presentation — that is, the seisin of the right of presenting. If it was upon the last presentation, and the person claiming it said that he or some ancestor of his made the last donation or pre- sentation, then, says Glanville, the plea is to be conducted according to the late ordinance ' about the advowsons of churches, and an assize was summoned to make recogni- tion what patron, in time of peace, presented the last deceased person to the church, of which assize more will be said when ■ we come to speak of other recognitions. For the present it will be enough to remark that he who recovered by such an assize recovered seisin of the presentation so as to present a proper person, with a saving of the demand- ant's claim as to the right of the advowson. If the right of advowson only was demanded, the de- mandant must add something as to the last presentation, either that " he or one of his ancestors had it," or that the tenant or one of his ancestors had it, or that some stranger had it, or that he was ignorant who had it. Whichsoever of these allegations it might be, if the other party claimed the last presentation as his own or his an- cestor's, the recognition was, notwithstanding, to proceed upon the right of presenting, except only in one of the above-mentioned cases ; that was, where the demandant admitted that the tenant, or one of his ancestors, had the last presentation, for then, without going to the recogni- tion, he was to present at least one person. When, how- ever, the last presentation had been decided ^ by the as- size, as before mentioned, or in any other lawful way, and a person was presented accordingly by the successful party, then the party who was resolved to try the right of advowson might go on with the suit and have the fol- lowing writ :' nex vicecomiti salutem. Froecipe N. qubd juste ' Perhaps Glanville here alludes to the famous statute about assizes ; or, from the expression, it seems more probable, a statute had been ordained since that, which directed recognitions to be made in case of last presenta- tions. It is not unlikely that the many assizes which grew into use in the time of Henry II. were introdnced at different times, according as this mode of proceeding was recommended by experience of its benefits. » DirationcUa. ' Qlanv., lib. 4, o. 1. 406 HENET 11. [CHAP. III. et sine dilatione dimittat E. advocationem ecclesioe in viM, etc., quam clamat ad se pertinere, et unde queritur qubd ipse injiLste ei deforceat : et nisi fecerit, summone per bonos summonitores eum qubd sit die, etc., ibi coram nobis veljustitiis nostris, osten- surus quare non fecerit, etc} The person summoned had the same essoins as were be- fore mentioned in the plea of land ; and if, after these, he did not appear at the fourth appointed day in person, or by attorney, Glanville thought the next process was for taking into the king's hands seisin of the presentation. The sheriif was to execute his writ of capias in manu in the following way : he was to go to the church, and there declare publicly, in the presence of some honest men, that he seized the presentation into the king's hands : the seisin remained in the king's hands fifteen days, with a liberty to the tenant to replevy it within the fifteen days, as was before stated.'' In short, after all the essoins were run out, if one or both the parties absented themselves, the course was ordered as in a plea of land. When both parties appeared in court, the demandant propounded his right in these words : — Peto, etc. " I de- mand the advowson of this church as my right, and ap- pertaining to my inheritance, of which I (or one of my ancestors) was seized (in the time of Henry I. or) since the coronation of the king ; and being so seized, I pre- sented a person to that church (at one of the before-men- tioned times) ; and so presented him, that he was insti- tuted parson according to my presentation : and if any one will deny this, I have here some honest men* who saw and heard it, and are ready to prove it,* as the court shall award ; and particularly this A. and this B." * When the claim of the demandant was thus set forth, the tenant might defend himself by the duel, or put him- self upon the assize ; and in both cases it would be ordered as before-mentioned.* This was the manner of contesting a right of advowson when the church was vacant. It might also be contested when the church was full ; as if the parson, or he who called himself parson, in the church, claimed his title by one patron, and another claimed the advowson, the latter ' Glanv., lib. 4, c. 2. • Diratwnare. « Ibid., c. 3, 4, 5. » Glanv., lib. 4» c. 6. ' Proboa homines. • Ibid., c. 7. CHAP. III.] WRIT OF RIGHT OP ADVOWSON. 407 might then have the following writ against the parson : Rex vwecomiti salutem. Summone per Bonos summonitores clerieum iUum M. personam eedesioe, etc., qubd sit coram me vel jusUis meis apud Westmonasterium ad diem, etc., ostensuncs quo advoaato se tenet in ecclesid Hid, cujus advocationem miles ille M. ad se clamat pertinere. Summone etiam per bonos summonitores ipsum N. qui advocationem illi deforceat, qubd tunc sit ibi, osten- surus quare advocationem ipsam ei deforceat, etc.^ If the clerk did not appear according to the summons, nor send any to essoin him, or if, after the three essoins, he did not come, or send his attorney, Glanville thought, that having no lay fee by which he might be distrained, the bishop (or his official, in case the see was vacant) should be commanded to distrain him, or punish his default by taking the church into his hands, or using some other lawful means of compulsion.^ When the clerk appeared in court, he would, perhaps, admit the demandant to be the patron, and would say, that he was instituted upon his presentation, or that of some of his ancestors ; if so, the plea went on no further in the king's court; for if the demandant denied the presentation, he was to maintain his controversy with the clerk before the ecclesiastical judge. Perhaps the clerk said the advowson belonged to the party summoned: now such party was dealt with in this manner : If he came at none of the three summonses, nor sent any essoin; or having essoined himself, neither came nor sent his attorney at the fourth day ; the advowson of the church in question was seized into the king's hand, and so it re- mained for fifteen days ; and if he did not appear in those fifteen days, then seisin thereof was given to the demandant. In the meantime, it was a question, what was to be done with the clerk, whether he was ipso facto to lose his church or not. But supposing the party sum- moned appeared, and disclaimed all right in the church, the suit in the king's court ceased, and the patron and clerk contested their claims in the court Christian. Should the church happen to become vacant pendente lite, Glanville thought, if there was no question but that, the person against whom the right of advowson was de- manded had the last presentation, either in himself or 1 Glanv., Ub. 4, c. 8. » Ibid., c. 9. 408 HENRY II. [chap. III. his ancestors, that he should he allowed to present a clerk, at least till he had lost the seisin : consistently with which he thought, that should a vacancy happen while the advowson was in the king's hands for fifteen days, the patron did not lose that presentation. If the party sunamoned should say the right of advowson was his, it was tried, as we before said of land. If he pre- vailed, he and his clerk were freed from the claim of the demandant ; if he failed, he and his heirs lost the advow- son forever.^ When the right of advowson was in this manner de- termined, it became a question what was to be done with the clerk, who admitted in court that he had the incum- bency of the church by presentation of the unsuccessful party. As the king's court could proceed no further than the right of advowson between the two patrons, the party who had now recovered the advowson was to proceed against the clerk before the bishop, or his official: yet after all, if at the time of the presentation the person presenting was believed to have been the patron, he was left in possession of the church during his life ; for in the reign of this king, at the council at Clarendon, a statute had been made concerning clerks who had enjoyed churches by the presentation of patrons fro tempore, which ordained that clerks who had violently intruded themselves into churches during time of war, should not lose such livings during their lives.^ This provision salved the titles of many beneficed clerks at that time. Ifevertheless, in such case, after the incumbent's death, the presentation returned to the lawful patron.* The following points might arise upon what has been said concerning the right of advowson and the last pre- sentation. When a patron had recovered an advowson by deraignment in court, and afterwards, in process of time, the parson died, it might be asked, whether the patron against whom the advowson had been recovered, could maintain an assize de ultima prcesentatione ; and what answer could, in that case, be given to it by the adverse party. For suppose the person bringing the assize had not, but some of his ancestors had had the last presenta- tion ; and it was objected to him, that he ought hot to ' Glanv., lib. 4, c. 9. ' Vide ante, pp. 325, 326. ' Glanv., lib. 4, o. 10. CHAP. III.] WRIT OF EIGHT OP ADVOWSON. 409 have a recognition, because he had lost the advowson to the tenant in the assize, by a solemn judgment of the court, whether this would be a bar to the assize. It should seem, says Glanville, that it would ; because, as he had not the last presentation, he never had seisin of the advowson ; but, it should seem, says he, that he might well go upon the seisin of his father, notwithstanding what had been determined respecting the right of advow- son. And yet if a question could be thus started upon the last presentation, it looks like invalidating the judg- ment of the king's court, before given, upon the right of advowson ; for when that had been solemnly adjudged, it should hardly seem that he ought by law to recover any seisin, particularly as against him who had before recov- ered the advowson, unless some new cause had arisen which would entitle him to be heard again. Indeed, if an assize was summoned for that purpose, it would be barred by this answer to it: that the complainant or his ancestors had, it was true, the last presentation ; but if he or his ancestors had any right, they lost it by a solemn judgment in court: and this being proved by the record of the court, the suit would be lost, and the complainant amerced.^ We have just seen that questions about presentations belonged to the bishop's court, though the right of ad- vowson was cognizable only in the king's court. It sometimes happened, that when one clerk sued another clerk in the court Christian they claimed a church by two different patrons. One of these patrons, not choosing to have a question upon his right agitated before that tri- bunal, might pray a writ to -prohwit the court from pro- ceeding, till the right of advowson was decided in the king's court. As this is the first mention we . have of a prohibition to the ecclesiastical to tiie ecoiesi- . r . -.i astical court. court, it may be proper to give this writ at length. It was as follows : Bex judieibus, etc., ecclesiastids salutem. Indioavit nobis R. quhd cum J. clericus suus teneat ecdesiam, etc., in villa, etc., per suam prcesentationem, quae de sud advocatione est, ut dielt, N. clericus eandem petens ex advo- caMone M. milites, ipsum J. coram vobis in curid christianita- tis inde trahit in placitum. Si verb prcefatus N. ecdesiam illam 1 Glany., Ub. 4, c. 11. 35 410 HENRY II. [chap. III. diraiionaret ex advocatione prcedicti M. 'palhm est qubdjam die- tus E. jactwram inde incurreret de advocatione su&. M quo- niam lites de advoeationibus ecdesiarum ad coronam et dignitor tern meam pertinent, vobis prohibeo, ne in causd illd procedatis, donee dirationatum juerit in curid meet, ad quern illorum advo- caUo illius eeelesice perfineat, etc. If they proceeded in the cause after this prohibition, then the judges were sum- moned to appear in the king's court by the following writ:^ Bex mcecomiti salutem. Prohihe judMbus, etc., ne teneant plaeitum in curid christianitatis de advocatione eeelesice, etc., unde H. advocatus illius eeelesice queritur qubd N. inde eum traxerit in plaeitum in curid christianitatis ; quia placita de ad- voeationibus ecdesiarum ad coronam et dignitatem meam perti- nent. Et summone per bonos summonitores ipsos judices, qubd sint coram me veljustiis meis die, etc., ostensuri quare plaeitum illud tenuerunt contra dignitatem meam in curid christianitaMs. Summone etiam per bonos summonitores prcefatum iV". qubd tunc sit ibi ostensurus quare prcefatum R. inde traxerit in pladtum in curid christianitatis, etc. The next action that demands our attention is that in which questions concerning a man's condition or state were agitated ; as when one claimed a person to be his Tillein ; or when one in a state of villenage claimed to be a free man. When one claimed a man who was before The writ* ill villenage, as his villein nativus, he had a muvn. yfrit de nativis directed to the sheriif ; and so contested before the sherifl' the matter with the other who was then in possession of the villein. If the ques- tion of villenage or not villenage was not moved before the sheriff, then the plea de nativis went on, as will be more fully shown presently. But if the villein said he was a free man, and he gave pledges to the sheriff that he would demonstrate it, then the suit in the county court ceased, because the sheriff was not allowed to determine that point ; and if the sheriff persisted in going on to hear the cause, the villein was to make his claim to the justices, and would then obtain the king's writ, as fol- lows : Bex vie, etc. Questus est mihi R. quM N. trahit eum ad villenagium de skht ipse est liber homo, ut dicei. Et ideo prcedpid tibi, qubd si idem B. fecerit de securum de clamore sua prosequendo, tunc ponas hquelam ilhrn coram me vel justitiis * » Glanv., lib. 2, c. 13. CHAP. III.J WRIT DE NATIVIS. 411 meis die, etc., et interem eum pacem inde habere facias : et sum- mone per bonos summonitores prcedictum N. qvM tunc sit ibi os- tensurus quare trahit eum ad vUlenagium injuste, etc. It may be remarked, that this 18 the first writ of pone we have yet met with.' The person who claimed the party as his villein, was also summoned by the same writ, and a day was fixed for him to prosecute his claim. At the day appointed, if the villein did not come nor send a messenger or essoin, they then proceeded, as we before mentioned, in pleas ^ where attachment lay. If he who claimed the party to be his villein neither came nor sent, the other was dis- missed the- court sine die. In the meanwhile, he who was claimed by both parties as his villein, was put, as Glan- ville expresses it, into seisin of his freedom;^ that is, as in pleas of land, a seisin of the land in question was given as a process of contempt : so in this instance, an inchoate temporary possession of his freedom was given to the vil- lein, till the parties could appear in court, and the ques- tion of right was fairly heard and determined. If both parties appeared in court, the freedom was to be made out in the following way : The person who claimed to be free, was to bring into court his nearest relations, descended from the same stock with himself; and if their freedom was recognized and proved in court, this was con- strued in his favor, so as to free him from the yoke of servitude. But if the free state of those who were pro- duced was denied, or there was any doubt concerning it, recourse was had to the vicinage, and according to their verdict it was adjudged by the court. In short, if there arose any doubt concerning the declarations of the rela- tions, every doubt or difficulty of this kind was to be solved by the vicinage.* When the freedom of tiie party was, by one or other of these ways, fairly maSe out, he was immediately re- leased from the claim, and was adjudged free forever. But if he failed in his proof, or if he was proved by the adversary to be a villein natiims, he was accordingly ad- judged to belong to his lord, together with all his goods and chattels. There was the same form and course of proceeding in c ase of a supposed villein claiming his free- 1 Glanv., lib. 5, o. 1, 2. • ' Glanv., lib. 5, c. 3. ' Perple^s altachiaiia. * Ibid., c. 4. 412 HENRY II. [chap. III. dom, and a freeman being claimed as a villein. The per- son whose freedom was in question applied for a writ, to bring the suit into the king's court, and then it went on as has just been stated. It must be remarked, that the duel was not allowed in a suit to prove a man free d, no- Uvitate} The next action that comes under our consideration is Writ of right the remedy a woman had to recover her dower. of dower. On the death of the husband, the dower, if it was a parcel of land named and specified, was either va- cant or not. If it was vacant, the widow, with the as- sent of the heir, might take possession thereof, and hold herself in seisin. If part of it only was vacant, she might take possession of that, and for the remainder she might have her writ of right directed to her warrantor — tnat is, the heir of the husband. The writ was as follows : Rex M. salutem. Prcecipio tibi quhd sine dilatione plenum rec- tum teneas A. quce fuit uxor E. de und hidS, terrce in villd, etc., quam clamat jpertinere ad rationabilem dotem suam, quam tenet de te in eddem villd per liberum servitium decern solidorum perannum pro omni servitio, quam N. ei deforeeat. Et nisife- ceris, vicecomes faciat, ne dporteat earn ampliiis inde eonqueripro defectu recti, etc.^ In pursuance of this writ, the plea went on in the lord's court, till proof was made of that court's failure in doing justice ; upon which it was removed to the county court, and so to the king's court, if it seemed proper to him or his chief justice. The writ to remove it into the king's court was a pone, and was as follows : Sex vicecomiti salutem. Pone coram me vel justitiis Tneis die, etc., loquelam qucB est in comitatu tuo inter A. et N. de und hidd terrce in villd, etc., quam ipsa A. clamat versus prcedictum N. ad rationabilem dotem, suam. Et swnmone per bonos summonitores prcedictum iV. qui terram illam tenet, quod tunc sit ibi cum loqueld, etc.^ This plea, as well as some others, might be removed from' the county court to the curia regis, for many causes ; as well on account of doubts which might have arisen in the county, and which they did not know how to decide upon (and on such cause of removal both parties were to be summoned) as at the prayer of one of the parties ; and then it was sufficient, if only the party not removing it » Glanv., lib. 5, c. 4. ' Glanv., lib. 6, c. 4, 5. = Ibid., c. 6, 7. CHAP. Ill,] WRIT OF EIGHT OF DOWER. 413 was summoned. If the suit was removed by the assent and prayer of both parties, being present in court, then there needed no summons, for both of them must know the day appointed. If either or both parties were absent at the day ap- pointed, they proceeded as before mentioned. When both parties appeared, the widow set forth her claim in the fol- lowing words : Peto, etc. " I demand that land, as apper- taining to such land which was named for me in dower, of which my husband endowed me ad ostium ecelesioe, on the day he espoused me, as that of which he was invested and seized at the time when he endowed me." To this claim the adverse party might make various answers: he might deny or admit that she was endowed of the land. But whatever was the answer given, the suit ought not to proceed without the widow's warrantor, that is, the heir of the husband ; he was therefore summoned by the fol- lowing writ : Bex viceeomiti salutem. Summone per bonos summonitores iV. filium et hceredem E. quhd sit coram me vel . justitiis meis ed die, etc., ad warrantizandum A. quce fait uxor ipsius K patris sui unam hidam terrce in villd, etc., quam chmat pertinere ad rationahilem dotem suam de dono ipsius E. viti sui versus N. et unde placitum est inter eos in curia med si terram illam ei warraniizare voluerit, vel ad osten- dendum ei quare idfacere non debet, etc. If the heir did not appear nor essoin himself, and was in contempt, there was a doubt what was the precise way for compelling him. Some thought he was to be distrained by his fee ; others thought he was to, be attached by pledges.' If the heir, when he appeared, admitted what the widow alleged, he was bound to recover the land against the ten- ant in possession, and deliver it to the widow; and for this purpose the suit was continued between him and the tenant. If he declined prosecuting the suit, he was bound to give her an equivalent in recompense ; for in all events the widow was to be no loser. If he denied what was alleged by the widow, the suit went on between him and her ; and if she could produce those who heard and saw the endowment at the church-door, and was ready to de- raign it against the heir, the matter might be decided by the duel : and if she prevailed, he must in that case also 1 Glanv., lib. 6, c. 8-10. 35* 414 HENRT II. [chap. HI. deliver to her the land in question, or a Bufficient equiv- alent. It was a rule, that no woman could maintain any suit concerning her dower without her warrantor.* This was the course for a widow to take, when she was vower wide ohUgcd to suc for part of her dower : but when naa. g]jg could get possession of no part of it, and was put to sue for the whole, the suit was commenced originally in the curia regis, and the person who withheld her dower was summoned by the following writ, called a writ of dower unde nihil habet: Hex vicecomiti salutem. Proecipe N. qubd juste et sine dilatione faciat habere A. qixcefuit uxor E. rationabUem dotem suum in vUla, etc., quam clamat ha- bere de dono ipsius E. mi sui, unde nihil habbt, ut dicit; et unde queritur qvbd ipse ei ir^uste deforceat: et nisi fecerit, sum^ moae eum per bonos summonitores qvbd sit die, etc., coram nobis veljusUtiis nostris, ostensurus quare non fecerit, etc. "Whoever was in possession of the land, whether the heir, or any other person, the presence of the heir, as was above laid down, was always necessary. If a stranger was in pos- session, he was summoned by this writ, and the heir by the above writ of summons ad warrantizandum.^ The suit between the heir and widow might be varied, according as the heir pleased. If she claimed a certain assigned dower, he might deny any assignment, or deny that to be the land assigned. In both cases the proceeding was as above described. If only a reasonable dower was de- manded, a third part was tabe allotted her by the heir.' If more was assigned to her than a third part, a writ might be had directed to the sheriff, commanding him to admeasure it.* » Glanv., Ub. 6, c. 11. ' Ibid., c. 14-16. » Ibid., c. 17. « Ibid., c. 17, 18. CHAPTEE IV. HENBY II. TO JOHN, (a) Op Fines— Of Eeoords — Wbit de Homagio becipiendo — Ptjbpbbst- TTEE — De Debitis Laicoeum — Of Sureties — Mortgages — Debts EX EMPTO ET VENDITO — OP ATTORNEYS — WrIT OF KiGHT IN THE Lord's Coubt — Op Wbits op Justices — Writs of Eeplevin — AND of Prohibition — Of Eecognitions — Assisa Mortis Anteces- soRis — Exceptions to the Assize — Assisa Ultimo PBiESENTATioNis — Assisa Nov^ Disseisinje — Or Terms and Vacations — The Criminal Law — Of Abjubation — Mode op Prosecution — Fob- peiture — Homicide — Eape — Proceeding before Justices Itiner- ant — The King and Govebnment — The Charters — The Char- acters op these Kings as Legislators — Laws of William the Conqueror — Op the Statutes — Domesday-Book — Glanville — Miscellaneous Facts. WE have hitherto been speaking of compulsory methods of recovering and confirming rights ; but it often happened, as Glanville expresses it, that pleas moved in the king's court were determined by an amicable composition and final concord : this was always by the consent and license of the king or his justices ; and was done as well in pleas of land as other pleas. Such a concord used sometimes, by the assent of parties, to be- reduced into a writing of several parts ; from one of these was the agreement rehearsed before the justices in open court ; and, in the presence of the justices, there was given to each party his part, exactly agreeing with, the other's {b). The following is a specimen of such an instrument, literally translated from one in the reign of Henry II. " This is a final concord made in the court of our lord the king, at Westminster, on the vigil of the Vide ante, p. 347. As to fines or final concords, mde ante, p. 340. They were originally, no doubt, aa Mr. Hargreaves says, real concords of existing suits, and in that sense they are alluded to in the Mirror, c. iii., a. 167, "Of final accord" — "No law prohibits pleas nor accords, wherefore it is lawful for every one to release and quit-claim his right and his action." At what period fines or recoveries were fictitious, and used only as modes of assurance, is uncertain : but no doubt soon after the use of records, as to which vide p. 345. 415 i?i 416 HENRY II. TO JOHN. [OHAP. IV. blessed Peter the apostle, in the thirty-third year of the reign of Henry II. before Ranulph de GlanvillS, justiciary of our lord the king, and before H. E.. "W". and T. and other faithful and trusty persons of our lord the king, then there present ; between the prior and brethren of the hospital of St. Jerusalem, and "W. T. the son of Norman, and Alan his son, whom he appointed- as attorney in his stead in the court of our lord the king, ad lucrandum et perdendum respecting all the land which the said W. held, with its appurtenances, except one oxland and three tofts. Of all which land (except the said oxland and three tofts), there was a plea between them in the court of our lord the king ; to wit, that the said W. and Alan concede and attest and quit-claim all that land from them and their heirs to the hospital and aforesaid prior and brethren for ever, except the said oxland and three tofts, which remain to the said W. and Alan, and their heirs, to be held of the said hospital, and the aforesaid prior and brethren, forever, by the free service of fourpence per ann. for all service ; and for this concession and attestation and quit- claim, the aforesaid prior and brethren of the hospital have given to the said W. and Alan an hundred shillings sterling."' A concord or agreement of this kind was called final^ because ^Jiem imponit negotio; so that neither of the parties could recede from it. If one of the parties did .not per- form what he was thereby bound to do, and the other party complained of it ; the sheriff would be commanded to put him by safe pledges, so as that he appeared before the king's, justices, to answer why he did not keep the fine ; that is, if the complainant had previously given security to the sheriff for prosecuting his claim. The writ was as follows : Prmdpe N. qubd juste et sine dUatione teneat finem factum in eurid med inter ipsum et R. de und hidd terrce in vUld, etc., unde placiium fait inter illos in curid med : et nisi fecerit, et prcedietus H, fecerit te securum de elamore suo presequendo, tunc pone eum per vadium et salvos plegios, qubd sit coram me vel justitiis meis, ostmsurus die, etc., quare non fecerit, ete.^ If he did not appear, nor essoin himself ; or after the three essoins, if he did not appear, nor send his attorney, ' Glanv., Ub. 8, c. 1, 2. '■ Vide ante, 341. " Glanv., lib. 8, c. 3, 4. CHAP. IV.] OF FINES. 417 they were to proceed as was before shown in ease of suits prosecuted by attachments. When they both appeared in court, if both parties acknowledged the writing con- taining the concord ; or if the concord was stated to be such by the justices before whom it was taken, and this was teptified by their record; then the party who had broke it was to be in the king's mercy, and to be safely attached till he gave good security to perform the con- cord in future ; that is, either the specific thing agreed on, if it was possible ; or otherwise, in some instances, what was equivalent : for if was invariably expected of every one who had acknowledged or undertaken anything in the king's court, in presence of him or his justices, ever after to observe such acknowledgment and under- taking. Moreover, had the final concord been made in a plea of land, then he who was convicted of breach of the fine, if tenant of the land, was ipso facto to lose the land. If one or both the parties denied the chirographum, then the justices were to be summoned to appear and record, says Glanville, in court the reasons why such a plea, between such parties of such land, ceased ; and, if the parties came to a concord and agreement by their assent, what the form of that concord was. As to the method of making this record, there was this difference observed between a concord made in the king's chief court and that before the justices itinerant: if in the latter, then the justices were summoned, that they, with certain dis- creet knights of the county where the concord was made, who were present at making the concord, and knew the truth of the matter, should appear in court, there to make a record of the plea. Accordingly a writ to that effect was directed to the sheriff to summon the justices and knights.^ Besides this, the sheriff of the county where the plea had been, was commanded to have the record of the plea then before the king or his justices by four discreet knights of the county. This is the first mention we have of the writ of recordari, so named from the words of it : Prosdpio tibi qvM facias recordari in comitatu tuo loqudam, etc? "When the justices appeared, and had agreed upon the record, that record was to be abided by, neither party being allowed to make any exception to it ; only, ' Glanv., lib. 8, c. 5, 6. ' Ibid., c. 6, 7. 2B 418 HENRY II. TO JOHN. [CHAP. IV. if such doubts should arise, which there was no possibility of removing, then the plea might be recommenced, and proceeded in afresh.* Having said thus much of records of courts, it may be proper on this occasion to inquire a little further concerning these muniments or judicial pro- ceedings (a). No court had, generally and regularly, such remembrances of its proceedings as were called and es- teemed records, except the king's court, that is, as it should seem, the court where the king's justices sat; though, by what we have just related, it should seem that the justices itinerant had not regvlarly a court of record. In other courts, if any one had said that which he would not wil- lingly own, he might be permitted to deny it, in opposi- tion to the whole court, by the oaths of three persons, affirming that he never said it; or by more or less, accord- ing to the custom of different courts. In some special instances, however, county and other inferior courts had records ; and that, as we are informed by our great authority, Glanville, by virtue of a law made by the council of the realm.^ Thus, if in any inferior court duel was waged, and afterwards the plea was re- moved into the king's court, then the claim of the demand- ant, the defense of the tenant, the form of words in which the duel was awarded and waged ; of all these the court had a record, which was acknowledged as such by the king's court. But it had a record of nothing else, except only of the change of a champion : for if, after the removal of the plea into the king's court, another champion than he who had waged duel in the inferior court was produced, and a question arose upon it ; in this case also it was de- (a) Vide anie, p. 346. " Qui placetat in curia cujuscunque curia sit, ex- cepto ubi persona regis est, et quis eum sistat super eo quod dixerit, rem quam nolit empteri si non potest disrationari per intelligentes homines qui interfuerunt placito,^ et videntes quod non dixerit, recuperet juxta -verbum Buum" (Legex Will, i., c. 28). "Et omnem recordationem domini regis curiae non potest homo contradicere '' (Leges Hen. Primi, c. xlix., s. 4). "Si plures alicujus homines simul implacitentur secundum quod causae fuerint vel pac- tum inter eos, de omnibus cura die simul vel de singulis sigillatum, rectum faciat: pactum eum legem vincit et amor judicium" (Ibid., i., 5). "Recor- dationem curiae regis nuUi negare licet : alias licebit per inteUigibiles homines placeti " (Ibid., cxxxi., s. 4). 1 Glanv., lib. 8, c. 8. ' When this law was made, we do not know ; nor is it mentioned any- where, that I know of, but in this passage of Glanville. CHAP. IV,] OF RECORDS. '419 cided by the record of the inferior court, according to the direction of the statute before alluded to. Besides, any one might object to the record of an inferior court, declaring that he had said more than was now to be found in the record ; and that what he had so said he would prove against the whole court by the oaths of two or more lawful men, according as the usage of the court required ; for no court was bound either to maintain or defend its record by duel ; this, therefore, was the only proof that could be had. "We are informed by Glanville, that a particular law ' had been made, ordaining that no one should except to a record in part, and admit the remainder ; though he might deny the whole by oath, as just stated.^ The king might occasionally confer on any court the privilege to have a record. Thus, upon some reasonable cause being shown, he might, as has just been observed, direct a court to be summoned to make a record of a matter for the inspection of his own court ; so that, if the king pleased, there could be no contradiction admitted to such record. It often happened that a court was summoned to have the record of some plea before the king or his justices, although it had, in truth, no such record. In this case, the parties, by admission and consent, might settle a record of the matter between them. The writ on this occasion used to be of the following kind : Sex viceeomiti saluiem. Pros- dpio tibi qubd facias ebookdari in comitatu tuo hqudam qvM est inter A. et B. de terrd, etc., in villa, etc., et habeas record/am illius loqiielce coram me veljustitiis mds ad terminum, etc., per quataor legales milites, qui interjuerunt, ad recordum id facien- dum. M summone per bonos summonitores A. qui terram illam clamat, qubd tunc sit ibi cum loqiield sud, et B. qui terram illam tenet, qubd tune sit ibi ad audiendum illud, etc.^ Again, inferior courts had occasionally records of what was done there, which were transmitted to the king's court; as when a lord had a plea in his court of some doubt and difficulty, which could not be well determined there, then he might curiam suam ponere in curiam domini regis, as they called it, or adjourn the matter into the king's court, to have the advice of that tribunal what was proper to be done — an assistance which the king owed to all his ' Of this law also, and the time when it was made, there is no remembrance but this slight intimation. » Glany., lib. 8, c. 9. " Ibid., c. 9, 10. 420 HENKY II. TO JOHN. [CHAP. IV. barons. When a lord was in this manner certified what was advisable to be done, he returned with the plea, and proceeded to determine upon it in his own court. County courts had a record of pledges, or sureties taken there, and of some few other matters.' We before said that courts were not bound to defend their records by duel ; but they were obliged to defend their judgments in that manner : as if any one should de- clare against a court for passing a false judgment against him, and should state it to be therefore false, because when one party said thus, and the other answered thus, the court gave a false judgment thereon in such and such words, and passed that judgment by the mouth of N., and should con- clude, that if it was denied, he was ready to prove it by a lawftil witness there ready to deraign it ; in this case, the question might be decided by the duel. But there were some doubts whether the court was to defend its judgment by one of its own members, or by some stranger. Glan- ville seems to have been of the former opinion; for he says, the defence was to be by the person who passed the judgment. If the court was convicted in this manner, the lord of the court was in the king's mercy, and lost his court forever ; and besides this, the whole court was in the king's mercy.^ We shall now speak of the remedy the law allowed to Writ de harm- compcl & lord to rcceive the homage of this ffioreciiriendo. tenant, and so enable him to claim the protec- tion consequent thereon.' If a lord would not receive the homage of the heir, nor a reasonable relief, then the relief was to be kept ready, and to be repeatedly tendered to the lord by good men : and if he would not at any rate accept it, the heir might complain of him to the king or his jus- tices, upon which he would have this writ: PrcBcipe N. qvJbd juste et sine dilatione recipiat homagium et raUonabile rek- vium K. de libera tenemento quod tenet in villd, etc., et qvM de eo tenere clamat. Et nisi fecetit, summone, etc. The process against the defendant was the same as has often been mentioned before in cases of summons. If he appeared and acknowledged the complainant to be the heir, and confessed he had tendered his homage and relief, 1 Glanv., lib. 8, c. 11. « Ibid., c. 9. ' We have before seen how important it was for the heir that the lord should receive his homage. Vide ante, 381. CHAP. IV.] HOMAGE AND RELIEF. 421 he was to receive it instantly, or appoint a day for doing it. The same was to be done, if he denied the tender, but ad- mitted the complainant to be the heir ; but if he denied he was the heir, then the heir, if he was out of seisin, might have an assize against the lord de morte anteeessoris ; if he was in seisin, he might hold himself in, till it pleased the lord to accept his homage ; for the lord was not to have the relief till he had accepted homage. But if the lord doubted whether he was the lawful heir or not, and it had appeared to the vicinage that he was not, the lord might then take the land into his own hands, till it was made ap- pear whether be was the heir. And this was the way in which the king always dealt with his barons : for the king, upon the death of a baron holding of him in chief, imme- diately retained the barony in his own hands, till the heir gave security for the relief; and this, notwithstanding the heir was of full age.^ Lords might defer receiving homage and relief, upon reasonable cause shown; as suppose some other person than the heir pretended a right to the inheritance, or any part of it; for while that suit depended, he could not re- ceive homage or relief. Another cause was, when the lord thought he had a right to hold the inheritance in de- mesne, in such case, if he commenced a suit by the king's writ, or that of his justices, against the person in seisin of the land, the tenant might put himself upon the king's great assize, which proceeded much in the way we before stated, as ■will appear by the following writ: Rex vice- comiti salutem. Summone per honos summonitores quatuor le- gates milites de vidneto viRce, etc., qvJbd sint coram me veljusU- tiis meis die, etc., ibi, ad eligendum super sacramentum suum duodecim, etc., qui melius rei veritatem sciant, et dicere velint, adfaciendam recognitionem, utrum JV. ttmjus jus Iwhet tenendi unam hidam terrce in viUd, etc., de I. vel ipse H. tenendi earn in dominico suo, quam ipse H. petit per breve meum versus prcedictum N. et unde N. qui terrq,m illam tenet, posuit se in assisam meam, et petit recognitionem fieri, utrum lUe mujusjus habeat tenendi terram illam in dominico, vel prcedictus N. te- nendi de eo. Et summone per bonos summonitores prcedictum N. qui terram iUam tenet, quM tunc ibi sit auditurus illam elec- iionem, etc.^ 1 Glanv., Ub. 9, c. 4-6. ' Ibid., o. 6, 7. 36 422 HENRY II. TO JOHN. [CHAP. IV. If a lord could not, by distress or otherwise, compel his tenant to render his services and customs legally due, re- course was then had to the king or his chief justice, from whom he might obtain the following writ to the sheriff, directing that he himself should see justice done to the complainant ; which is the first instance we have yet men- tioned of the form of a writ of justides : Proecipio tihi qvM JUSTiciES N. qubd juste et sine dilatione fadat H. consue- tudines et recta serviUa quce eifacere debet de tenemento sua quad de eo tenet in villd, etc., sicut rationahiliter monslrare poterit eum sibi deberi, ne oporteat eum amplius inde conqueripro defectu recti, etc. In pursuance of this writ, the sheriff, in his county court, held a plea of the matter in question, and the party complaining might therein recover his services and dues, according to the custom of the county. If he made out his right, the other party, besides rendering what was due, was in the mercy of the sheriff; for the misericordia or amercement which arose out of any suit in the county court always went to the sheriff. The quantum of this was ascertained by no general law, but depended on the custom of different counties, and the opinion of the per- sons who assessed it (a).^ Ifext, as to the remedy to be pursued in case of pur- prestures. Purpresture, or, according to Glan- Yule, ■ porpresture, was when any unlawiul en- croachment was made upon the king, as intruding on his demesnes, obstructing the public ways, turning public waters from their course, or building upon the king's highway ; ^ in short, whenever a nuisance was committed upon the king's freehold, or the king's highway, a suit (a) But it ought to be reasonable. Thus, Henry I., in his charter, admitted that amercements had been grievous, and promised that they should be hence- forth reasonable : " Si quis baronum vel hominum meorum forisfecerit, non dabit vadium in misericordia totius pecunise suae, sicut faciebat tempore pa- tris mei et fratris mei, sed secundum modum forisfacti, ita emendabit sicut emendasset retro a tempore patris mei et fratris mei, in tempore aliornm antecessorum meorum" (Leges Hen. Pri., c. 1 ; A.-S. L., v. i., p. 500). How utterly, therefore, Henry II. violated adl law in the case of Archbishop A'Becket, when, upon a supposed contempt in non-appearance in court — though he sent four knights to represent him and excuse his absence — he was declared to have forfeited the whole of his goods and chattels, may easily be judged (Hum^s Hist. Eng., vol. i., c. 8). And so outrageous were the ex- actions of the Norman sovereigns under the pretence of amercements, that a special clause was introduced into Magna Charta to repress them { Vide post, et mde 2 Inst., 27). ' Glanv., lib. 9, c. 8-10. » Begiam plateam. CHAP. IV.] OF DEBTS. 423 concerning such nuisance belonged to the king's crown and dignity (a). These purprestures were inquired of either in the chief court of the king or before the king's justices, who were sent into different parts of the king- dom for the purpose of making such inquisitions by a jury of the country or of the vicinage.' Whosoever was con- victed by a jury of having committed such purprestures was in the king's mercy for the whole fee he held of the king, and was obliged to restore what he had encroached upon. If the purpresture consisted in building in some city upon the king's street, the edifice, says Glanville, so built, was forfeited to the king, and the party remained in the king's mercy. The misericordia domini regis, which has been so often mentioned, is explained in this passage by Glanville to be, when any one is to be amerced by the oaths of twelve lawful men of the vicinage ; so, however, ne aliquid de suo honorabili contenemento amitat, as not to lose his countenance or appearance in the world. When any purpresture was committed against a private person, it was considered in a different way. If it was against the lord of the fee, and not within the provisions of the stat- ute about assizes, then the transgressor was made to ap- pear in the lord's court, provided he held any tenement of him. This was by the following writ : Hex vicecomiti scdutem. D'cecipio tibi qubd jasticies N. qubd sine dilatione veniat in curid I. domini sui, et ibi stet ei ad rectum de libera tenemento suo quod super eum occupavit, ut dicit, ne oporteat, etc.^ If, upon this writ, he was convicted of the purprest- ure in the lord's court, he lost, without recovery, the freehold he held of the lord. If he held no freehold of the lord, then the lord might implead him by a writ of right in the court of the chief lord. In like manner, if any one committed a purprest- ure upon a person not his lord, and the fact did not come (a) " It is properly when there is a house built or an enclosure made of any part of the king's demesnes, or of a highway, or a common street, or public water, or such like public thing. It is derived of the French powrpris, which signifleth an enclosure" [^Co. Lilt., 277 b.)- It might be committed, as understood by our legal authorities, (1) against the king by a subject, (2) fcy a tenant against his lord, (3) by one subject against another (Splem. Oloss., and in Ocmell's Interpret. Manwood's Forest Laws, p. 119). The word used by Glanville is "occupation," and Lord Coke says "occupationea" are taken for usurpations upon the king, and, in a large sense, includes purprestures as well as intrusions and usurpations (2 Inst., 272). * Per juralam patrice dve mcineti. ^ Glanv., lib. 9, o. 11, 12. 424 HBNET II. TO JOHN. [CHAP. IV. within the provision about assizes, he might be impleaded in a writ of right. But if it was within that law, then there should be a recognition upon the novel disseisin to recover seisin ; of which proceeding we shall have occa- sion to speak more hereafter. In these purprestures it usually happened that the boundaries of lands were broke in upon and confounded ; upon which, at the prayer of any of the neighbors, the following writ might be issued : Hex vicecomiti salutem. Proecipio tibi qwbd juste et sine di- latione facias esse rationabiles divisas inter ierram R. in villd, etc., et terram Ade de Byri sicut esse debent, et esse solent, et sicut fuerunt tempore regis Henrici avi mei, unde R. queritur qubd Adam injuste, et sine judicio, occupavit plus inde quMm pertinet ad liberum tenementam suum de Byri; ne amplius inde clamorem audiampro defectujustitice, etc} We have hitherto treated of the remedies in use for vindicating a right to land, and its appendant services and profits. We shall now take leave of this subject for awhile, and consider the nature of personal contracts, such as buying, selling, giving, lending, and the like, upon which there arose dmis and obligations to pay. This sub- DedeMisUi- j^ct is entitled, in the language of this period, amim. ^g deUtis kdcorum, to distinguish it from those debts and dues that were recoverable in the ecclesiastical courts, as being things of a supposed spiritual nature, such as money due by legacy, or upon promise of marriage.' Pleas, therefore, de debitis laicorum belonged to the king's crown and dignity. If any one complained to the curia regis of a debt owing to him, which he was desirous should be inquired of in that court, he had the following writ of summons: Rex vicecomiti salutem. Praecipe N. qubd juste et sine dilatione reddat R. centum marcas quas ei debet, ui dicit, ^t unde queritur qubd ei deforceat. Et nisifecerit, summone eum per bonos summonitores, qvJbd sit corum me vel jusliUis meis apud Westmonasterium, d, clauso Paschoe in quindecim dies, ostensurus quare non fecerit, etc. This was the form of the writ of debt. The manner of enforcing an appearance to this writ was as in other cases of summons. It should be observed here, that it was not usual for the curia regis in any case to compel obedience to a writ by distraining the chattels ; » Glanv., Ub. 9, c. 13, 14. * For this vide Fleta, p. 131. CHAP. IV.] OF DEBTS. 425 therefore, even in a plea like this, the defendant might be distrained by his fee and freehold, or, as in some other suits, by attachment of pledges.' Wlien they were both in court, then it was to be con- sidered how the demand arose. This might be of various kinds, as ex causa mutui, upon a borrowing ; ex causd vendi- tionis, upon a sale ; ex commodato, upon a lending ; ex locato, upon a hiring; ex deposito,^ upon a deposit; or by some other cause by which a debt arose; for, at this time, all matters of personal contract were considered as binding only in the light of debts; and the only means of recovery, in a court, was by this action of debt. A debt arose ex mutuo, when one lent another anything which consisted in number, weight or measure. If a person upon such a lending, received back again more than he lent, it was usury ; and if he died under the repu- tation of an usurer, we have seen the infamy with which his memory was stained. A thing was sometimes lent sub plegiorum datione ; that is, some one was surety for the restoration of it ; sometimes, sw6 vadii positione, that is, a pledge 'was given ; sometimes, sub fdei interpositione, when a bare promise was made for the return ; sometimes, svb ehartce expositione, when a charter was made acknowledging such lending ; and sometimes with all these securities to- gether. When anything was owing sub plegiorum datione only, if the principal debtor had not wherewithal to pay, recourse was had to the sureties by the following writ : Rex vicecomiti salutem. Praecipe N. qubd juste et sine dilatione acquietet R. de centum marcis versus N. unde eum applegiavit, ut dicit, et unde queritur qubd eum non acquietavit inde. Et nisifecerit, summone eum per bonos sum^ monitores, etc.^ If the sureties appeared in court, and con- 1 Glanv., lib. 10, c. 1-3. ' It is almost unnecessary to remark, that these expressions are all bor- rowed from the civil law ; the same may be said of the definitions hereafter given of these different obligations ; but, notwithstanding this, the matter of Glanville's discourse upon the subject of debts and obligations bears no resemblance to the imperial jurisprudence. This is one strong and very remarkable circumstance to show, that the use made of the Eoman law by our old writers was not to corrupt, but to adorn and elucidate our municipal customs. Vide Inst., lib. iii., tit. 15. ' This writ was, in after times, called de plegiis acquietandis, and used to be brought by the sureties against the principal debtor ; though in the time of Glanville we find it lay for the creditor against the surety, F. N. B. It must 36* 426 HENRY II. TO JOHN. [CHAP. IV. fessed the suretyship, they were then obliged to pay the debt at certain times affixed in court, unless they could show that they were released from their engagement, or had in some way satisfied the demand. Sureties, if more than one, were held to be severally bound for the whole (unless there had been some special agreement to the con- trary), and they were both to be proceeded against for satisfaction ; therefore, should any of them be insufficient, the remainder were to be answerable for the deficiency. If the sureties, however, had specially engaged for par- ticular parts of the payment, it was otherwise. There might arise a dispute between the creditor and the sureties, or between the sureties, upon this point. In like manner, if some of the sureties engaged for the whole, and some for parts only, then the former would have a question to debate with the latter. In what manner all these points were to be proved, will be seen presently. When the sureties had paid what was due, they might resort to the principal by a new action of deljt, as will be shown here- after. HO|Wever, it should be remarked, if any one had become surety for a person's appearance in a suit, and he had fallen into the king's mercy for the default of the principal, he could not recover by action of debt against the principal what he had so paid ; for it was a rule, that should any one become surety for a person's answering in the king's court, in any suit belonging to the king's crown and dignity, as for breach of the peace, or the like, he fell into the king's mercy, if he did not produce the principal ; but he was thereby, notwithstanding, released from the engagement as a surety, and therefore there could be no further proceeding instituted thereon.' If some of the sureties denied they were sureties, and some confessed it, then the question would be as well be- tween the creditor and the sureties as between the sureties themselves. There was a doubt what should, in this case, be the mode of proof; whether by duel, or whether the sureties were to deny their engagement by the oaths of such number of persons as the court should require. Some thought that the creditor himself, by his own oath, and that of lawful witnesses, might make proof of it against be confessed, the wording of it in Glanville seems more adapted to the mod- ern than the ancient application of the writ. 1 Glanv., lib. 10, c. 3-5. CHAP. IV.] OP CONTRACTS, MORTGAGE. 427 the sureties, unless the sureties could avoid his oath by any lawful objection ; and if so, says Glanville, they must resort to the duel.* Things were lent sometimes sv,b vadii positione ; and then either movables, as chattels, or immovables, as land, tene- ments, and rents, were given in pledge. A pledge was either given at the time of lending, or not. It was given sometimes for a certain term, sometimes without any fixed term ; sometimes in mortuo vadio, sometimes not. Mortuum vadium, or mortgage, was when the fruits, or rent arising therefrom, did not go towards paying off the demand for which it was pledged (^a). When movables were pledged, and seisin thereof, as it is callegL, given to the creditor for a certain term, the law required that he should safely keep it, without using it so as to cause any detriment thereto ; and if any detriment happened to it within the term ap- pointed, it was to be set off against the debt, according to the damage sustained. If the thing pledged was such as necessarily required some expense and cost, as to be fed or repaired, perhaps there would be some agreement between the parties about it, and that agreement was to be the rule of such contingent expenses. It was sometimes agreed, that if the pledge was not redeemed at the term fixed, it (a) The Mirror affords a much better explanation by analogy to distresses, which are a kind of pledge, and which it divides into dead distresses, as armor, or robes, or jewels, and live distresses, as cattle or sheep (c. 2, ». 26). It is singular that so easy an explanation has not occurred to any writer since the time of the Mirror. A mortgage is always a dead pledge ; that is liter- ally the meaning of the phrase, for "gage" or "vadium" is synonymous with pledge, and a distress is only a pledge compulsorily taken, and so it is said in the chapter of the Mirror that a man unlawfully takes away a live distress against gages and pledges, as a live distress is not to be taken away, etc. It is not easy to understand the explanation above given, which is copied from Glanville, and of which the author offers no explanation. In our day, rents received, of course, do, pro tanto, go in satisfaction of the debt. Littleton's explanation is, " If a feofiment be made upon condition, that if the feoffor pay to the feoffee at a certain day a certain sum, then tjie feoffor may enter : in this case, the feoffee is called tenant in mortgage, i. e., it is mmiuum vadium, because it is doubtftil whether the feoffor will pay at the day limited or not, and if he doth not pay, then the land which is put in pledge Ls taken from him forever, and so dead to him, and if he doth pay, then tlie pledge is dead to the tenant" (IdU., b. 2, c. 5; Co. lAlt., 205, o). The ex- planation probably is this — that in ancient times the mortgages were actually forfeited at the day, and the intermediate rents and profits were looked upon in the light of a fine or penalty, or as interest for the delay, which was not very long. This appears by a subsequent passage to be the explana- tion. 1 Glanv., Ub. 10, c. 6. 428 HBNET II. TO JOHN. [CHAP. IV. Bhould remain to the creditor, and become his property. If there was no such agreement, the creditor might quicken the redemption by the following writ : Rex vicecomiti salu- tem. Pr(Bcipe N. quod juste et sine dilatione acquietet, etc., quam invadiavit B. pro centum marcis usque ad temdnum qui prceteriit, ut dicit, et unde queritur quod earn nondum acquieta- vit: et nisi fecerit, etc} It was doubted by Glanville in what manner the defend- ant was to be compelled to appear to this writ ; whether he was to be distrained by the pledge itself, or in what other way. This, it seems, was left to the discretion of the court, and might be effected either by that or some other method. He ought, however, to be present in court before the pledge was quit-claimed to the creditor ; for he might be able, perhaps, to show some reason why it should not. If he then confessed his having pledged the thing, as he thereby in effect confessed the debt, he was commanded to redeem it in some reasonable time ; and if he did not, the creditor had license to treat the pledge as his own property. If he denied the pledging, he must either say the thing was his own, and account for its being transferred out of his possession, as lent or entrusted to him, or deny it to be his; and then the creditor had license to consider it as his own property. If he acknowledged it was his, but denied the pledge and debt both, then the creditor was bound to prove both ; and the manner of proof, where pledges denied their suretyship, we have before mentioned. But the debt could not be demanded before the expiration of the term agreed upon.^ If the pledge was made vnthoiit mention of any par- ticular term, the creditor might demand his debt at any time. When the debt was paid, the creditor was bound to restore the pledge in the condition he received it, or make satisfaction for any injury that it had received ; for it was a rule that a creditor was to restore the pledge, or make sat- isfaction for it; if not, he was to lose his debt.^ When it happened that a debtor did not made delivery of the pledge at the time of receiving the thing lent, Glan- ville doubts what remedy there was for the creditor, as the same thing might be pledged, both before and after, to several persons ; for it must be observed, says our author, » Glanv., lib. 10, c. 8. » Ibid. " Ibid. CHAP. IV.J MORTGAGES. 429 that it was not usual for the court of our lord the king to give protection to, or warrant private agreements about giving or receiving things in pledge, or about other matters, if made out of court, or if made in other courts than that of our lord the Jang: and therefore, when such conventions were not observed, the cwm regis would not entertain any suit for the establishment of them. The debtor, therefore, could not be put to answer about the' priority of pledging, and ' the person who was the loser by it must content himself with the consequence of his own negligence. When a thing immovable was put in pledge, and seisin thereof given to the creditor for a certain term, (a) it was generally agreed between them '""'^s'"- wnether the rents and profits should, in the meantime, go towards the discharge of the debt, or not. An agreement of the first kind was considered as just and binding, the latter as unjust and dishonest, and was the mortuum vadium, or mortgage before mentioned. Though this was not wholly prohibited by the king's court, yet it was reputed as a species of usury, and punishable in the way before men- tioned. In other respects, the rules of law respecting this pledge were the same as those before stated in the case of a movable, when pledged. It must be added, that should the debtor pay the debt, and the creditor still detain the pledge, the debtor might have the following writ to the sheriff: Prcecipe N. qubd justi et sine dilatione reddat R, totam ierram illam in villa, etc., quam d invadiavit pro centum marcis ad terminum qui prceteriit, ut dicit, et denarios suos inde redpiat ; ok, quam d acquietavit, ut dicit : et nisi fecerit, summone eum per bonos, etc.^ The creditor, upon his appear- ance in court, would either acknowledge the land to be given in pledge, or would claim to hold it in fee. In the first instance, he ought to restore it, or show a reasonable cause why he should not. In the second, it was put either at (o) It is to be observed, that in Glanville's time (says Sir W. Blaekstone), when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or a pledge of lands was good unless possession was also delivered to the creditor, and having referred to this passage, which is copied from Glanville, he adds, "And the frauds which have arisen since the exchange of these public and notorious conveyances for more private and secret bargains have well evinced the wisdom of our ancient laws" (2 Black. Comm., 159). Quia sine traditione non transferentur rerum dominia (BrcuAon, 61, 6). » Glanv., lib. 10, c. 8. » Ibid., c. 8, 9. 430 HENRY n. TO JOHN. [CHAP. IV. the prayer of the creditor or debtor, upon the recognition of the country, whether the creditor had the land in fee or in pledge, or whether his father or aiiy of his ancestors was seized thereof, as in fee or in pledge, on the day he died ; • and so the recognition might be varied many ways, accord- ing as the demandant claimed, or the tenant answered to that claim. But if a recognition was prayed by neither party, the plea went on updn the right only.' If the creditor by any means lost his seisin, whether through the debtor or through any one else, he could not recover seisin by any judgment of the court, nor by a rec- ognition of novel disseisin ; but if he was disseized of his pledge unlawfully, and without judgment of any court, the debtor himself might have an assize of novel disseisin ; and should he have been d^isseized by the debtor himself, he had no way of getting possession again but through the debtor ; for he must resort to the principal plea of debt, to compel the debtor to make him satisfaction.^ Thus far of proving a debt by sureties and by pledge ; but where the creditor had neither of these to prove his demand, nor any other proof, but only the faith or promise of the debtor, this was held no sufficient proof in the king's court ; but he was left, says Glanville, to his suit in the court Christian de fidei Icesione vel transgressione, for breach of promise. Though the ecclesiastical judge might take cognizance of this as a criminal matter, and inflict a pen- ance upon the party, or enjoin him to make satisfaction ; yet we have seen that he was prohibited by one of the constitutions of Clarendon, to draw into that jurisdiction, and determine questions concerning lay-debts or tene- ments, upon pretence of any promise having been made respecting them.* If then the creditor had neither sureties nor pledge, he was driven to find some other proof. He might make out the matter either per testem idoneum, per duellum, or per cartam, i. e. by a fit witness, or by the duel, or by a charter. If the debtor's charter or that of his ancestor was pro- duced, and he did not acknowledge it, he might contro- vert it several ways. Perhaps he might admit it to be his seal, but deny that the charter was made by him or with his assent ; or he might deny the charter and seal both. ' Glanv., Ub. 10, c. 10. » Ibid., c. 11. » Ibid., c. 12. VUeante. CHAP. IV.] MORTSAaES. 431 In the first case, if he acknowledged publicly in court the seal to be his, so great regard was had to a seal, that he was thereby considered as having acknowledged the charter itself, and was bound to observe the covenants therein contained ; it being his own fault, if he suffered any injury for want of taking care of his own seal. In the latter case, the charter might be proved in the duel by a fit witness, particularly by one whose name was inserted as a witness in the charter. There were other ways of es- tablishing the credit of a charter; as by showing other charters signed with the same seal, which were known to be the deeds of the person who denied this ; and if the seals, upon comparison, appeared exactly the same, it was held as a clear proof ; and the party against whom it was to operate lost his suit, whether it related to debts, land, or any other matter : and he was moreover to be in miseri- cordid to the king ; for it was a general rule, that when a person had said anything in court or in a plea which he again denied, or which he could not warrant, or bring proof of, or which he was compelled to gainsay by con- trary proof, he always remained in misericoraid. If a person had given more securities than one for a debt, they might all be resorted to at once ; otherwise many securities would not be of more benefit than one.' "We have hitherto been speaking of lending and borrow- ing ; we come now to a debt arising ex commodato : as if one lent another a thing without any gratuity, to use and derive a benefit from it ; when that use and benefit was attained, the thing was to be restored without detriment ; but if the thing perished, or was damaged in his keeping, a recompense was to be made for the damage sustained : but how this damage was to be valued, and if the thing, was lent for a certain term, or to be used in a certain place, how a recompense was to be made, should he exceed that term and deviate from that place ; or how that excess was to be proved, or whose property the thing was to be con- sidered, Glanville signifies his doubts ; only as to the ■property, he thought that retaining the thing beyond the stated time and place could not well be called fiirtum, or stealing; because he had possession of it originally through the right owner. Glanville also doubted whether the iGlanv., lib. 10, C.12. 432 HENRY II, TO JOHN. [CHAP. IV. owner, if he had any use for it himself, might demand his thing so lent before the time was expired, or before any breach of the agreement as to the place.' Next as to debts arising ex empto et vendito. A sale was considered as effectually completed when the price was agreed upon, so as there was a delivery of the thing sold, or the price paid, in part or in the whole, or that at least earnest was given and received (a). In the first two cases, neither of the contracting parties could recede from the bargain, unless on a just and reasonable cause ; as if there had been an agreement at first that either might declare off within a certain time ; for in this case, the rule of law operated, that conventio vincit legem. Again, if the thing was sold as sound and without fault, and afterwards the buyer could prove the contrary, the seller was bound to take it back; however, it would be sufficient if it was sound at the time of the contract, whatever might after- wards happen : but Glanville had a doubt within what time complaint was to be made of this, particularly where there was no special agreement about it. Where earnest was given, the purchaser might be off his bargain, upon forfeiting his earnest ; but if the seller, in this case, wanted to' be off, Glanville doubted whether he might, without paying some penalty, for otherwise he would be in a better condition than the purchaser, though it was not easy to say what penalty he was to pay. In general, all hazard respecting the thing sold was to rest with him who was in possession of it at the time, unless there was some special agreement to the contrary.'' In all sales of immovables, the seller and his heirs were bound to warrant the thing sold to the purchaser and his. heirs, and upon that warranty he or his heirs were to be impleaded, in manner as we before stated. And if any movable was demanded by action against the purchaser, (a) When there is neither writing, earnests, nor delivery, says Bracton, the parties may retract property, not having passed quia sine traditione non transferentur rerum dominia {Bradan, 61, 6). The earnest was given by the civil law as symbol of the contract or part of the price, as Vinnjus says. In the former case, the purchaser could not avoid the rule by forfeiture ; in the latter, he could (Beg., 18, 1-35, 19, 1-11, 1). It is curious that, after the lapse of centuries, during which the common law as it had thus existed had become obsolete, it was virtually restored by the statute of Frauds in the reign of Charles II., by which either delivery, writing, or part payment is required to bind a contract of sale of goods above the value of £10. ' Glanv.i lib. 10, c. 13. 2 Ibid., c 14 CHAP. IV.] CONTRACTS OF SALE. 433 as being before sold or given, or by some otter mode of transfer conveyed to another (so as no felony was charged to have been committed of it), the same course was ob- served, says Glanville, as in case of immovables ; but if it was demanded of the purchaser ex causS. fartivd, he was obliged to clear himself of all charge of felony, or call a per- son to warrant the things bought. If he vouched a certain warrantor to appear within a reasonable time, a day was to be fixed in court. If the warrantor appeared, but denied his warranty, then the plea went on between him and the purchaser, and they might come to the decision of the duel. Glanville made a question whether such a warrantor might call another warrantor ; and if so, what limit was to be set to this vouching to warranty. In this case of calling a certain warrantor, when a thing was de- manded ex causd furtivd,, the warrantor used not to be sum- moned, as in other cases of warranty ; but on account of the particular nature of this charge, he was attached by the following writ to the sheriff: Proedpio tibi, quod sine dilatione attaehiari facias per salvos et securos plegios N. quhd. sit coram me vel justitiis meis die, etc., ad warrantizandum R. illam rem quam JS. clamat adversus R. ut furtivam, et unde prcBdictus R. eum traxit ad warrantum in curid med, vel ad ostendendum quare ei warrantizare non debeat, etc} This was the proceeding if he called a certain warrantor whom he could name. But if, in the phrase of that time, he called an uncertain warrantor — that is, if he merely declared that he bought the thing de legiiimo mercatu mo, fairly and honestly, and could produce sufficient proof thereof, he was cleared of the charge of felony, as far aa he might be affected criminally ; not so, however, but that he might lose the thing in question, if it was really stolen, > though not by the defendant. This was the method of proceeding, if any of these special circumstances arose ; but if it rested upon the mere debt, that is, whe^er ex empto or ex commodato, it was made out by the general mode of proof used in court, namely, says Glanville, that by writing or by duel.'' A debt ex locato and ex conducto accrued, when one let out a thing to another for a certain time, at a certain reward ; here the person letting was bound to impart the ' Glanv., lib. 10, c. 15, 16, ' Ibid., .;. 17. 37 2C 434 HENRY II. TO JOHN. [CHAP. IV. use of the thing letten, and the hirer to pay the price. In this case, the former might, at the expiration of the time, take possession of the thing letten by his own authority solely ; but Glanville made it a question whether, if the price was not paid according to the agreement, he might deprive the hirer of possession by his own authority. But all these being what were then called private contracts, lying in the knowledge of the parties only, without any evidence to testify their existence, were such, as was before observed,* of which the king's court did not usually • take cognizance ; others, which were quasi privatce, hardly met with more consideration from the king's court.'' This seems to have been a remarkable part of the jurisprudence of these times ; and to have stood in need of the improve- ment afterwards, though very slowly, adopted in actions upon promises. Thus have we gone through those actions which were commenced originally in the curia regis, all which were called actions ae proprietate. As these might be attended by the parties themselves, or by their attorneys, it seems proper in this place to say something upon the attorneyB. j^^ pcspecting attomoys (a). These pleas, as (o) The word used by Glanville, from whom all this is copied, is respon- salis, and from some expressions in Bracton and Fleta, it has been conjec- tured that an attorney, an essoiner, and a responsalis differed in some respects (Bracton, 212, 6; Fkta, lib. vi., c. 11, 6. 7). And of this opinion was Lord Coke (Cb. IM., 128, a). But these changes of expression, or even of mean- ing, may merely mark the gradual course of a usage. The terms used in the civil law for attorney would probably be procurator, but that is a mere gen- eral phrase, and the term " responsalis " is used in Justinian's NomUce in the sense of an officer sent with a special commission, and Glanville is speaking of the special function of representation in a court, and in a particular suit. Appearance used to be personal, and it is curious that among the "abuses" specified in the Mirror, it is that appearance by attorney was allowed [Mirror, c. 5, s. i.). " It is an abuse to answer or appear by attorney " (Ibid., art. 138), but it ia also said, " It is an abuse to receive an attorney where the plea is not to be judged in the presence of the parties" (art. 103) ; and agam, "It is an abuse that no one can make an attorney in personal actions, where cor- poral punishment is to be awarded" (art. 104); and again, "It is an abuse to receive an attorney where no power to do so is given by writ out of the Chancery" (art. 102). It is not easy to understand the precise meaning and force of these objections, but it is manifest that attorneys.did appear in court, and it is plain, from other passages, that they were quite different from es- Boiners. "It is an abuse that an essoiner is admitted in a personal action" (art. 100). There is a distinct chapter, however, upon " attorneys," following that upon essoiners, wliich shows that they were closely connected. " Before a plea put into court by essoins, attachment, or by appearance — essoins being » Vide ante. » Glanv., lib. 10, c. 13. CHAP. ly.] OF ATTORNEYS. 435 well as some other civil pleas, might be prosecuted by an attorney ; or, as he was called in those times, respon- salis ad lucrandum vel perdendum. A person, when he ap- pointed such responsalis, or attorney, ought to be present, and make the appointment in open court before the jus- tices sitting the^e upon the bench ; and no attorney ought to be received otherwise than from the principal then in court, though it was not necessary that the adverse party should be present at the time, nor even the attorney, pro- vided he was known to the court. One person might be appointed attorney, or two, jointly or severally ; so as, if one was not present to act, another might ; and by such an attorney a plea might be commenced and determined, whether by judgment or by final concord, as effectually as by the principal himself. It was not enough that any one was appointed bailiff or steward for the management of another's estate and affairs, to entitle him to be received as his attorney in court; but he must have a special au- thority for that particular purpose, to act in that par- ticular cause, ad lucrandum vel perdendum, for him in his stead. It was the practice to .appoint in the curia reps an attorney to act in a cause depending in some other court; and there then issued a writ of the following kind, commanding the person appointed to be received as such : Hex vicecomiti (or whoever presided in the court) salutem : Scias qubd, N. posuit coruw. me (or, justiUis meis) JR. loco suo ad lucrandum vel perdendum. pro eo in placito, etc., quod est inter eum et R. de und carucatd terrm in vilM, etc.; et ideb tibi prcecipio qubd prasdictum R. loco ipsius N. in placito iUo recipias ad luerandum vel perdendum pro 80, efc.* When a person was appointed attorney, he might cast essoins for the principal (and for him only, not for him- excuses for non-appearance — none is to be received by attorney, nor is any to be received by attorney in a suit not pending, but only in a suit pending in the county court or elsewhere. All may be attorneys which the law will permit: women may not be, nor infants, nor villeins. Plaintiffs, notwith- standing they have attorneys in personal actions, are not to appear or answer in judgment by attorney (Ibid., c. ii., s. 31). Elsewhere, it is said that attor- neys who yield up the inheritance or freehold of their clients in judgment fall into the offence of wrongful disseisin, for it behoveth not attorneys to lose their clients' righta, but to defend them, until a rightful judgment ia given (Ibid., c. ii., s. 26). It appears that accountants in the exchequer were usually obliged to come in person (MadM^s Exeh., c. xxvii., a. 5). »Glanv.,lib. ll,c. 1, 2. 436 HKNKT II. TO JOHN. [CHAP. IV. 6elf ) till his appointment was vacated. When an attorney was appointed, and had acted in a cause, Glanville puts a question, whether his principal could remove him at his pleasure and appoint another, particularly if there had arisen any great disagreement between them. And he thought that the principal had that power ; an attorney being put in the place of another only in his absence; and the practice was to remove an attorney at any part of a cause, and appoint another in court, in the form above mentioned.* A father might appoint his son his attorney, an instance of which we saw in the fine above stated, and so vice versd; and a wife might appoint a husband. When a husband acted as attorney to his wife, and lost anything in a plea of maritagium or dower, or gave up any right of the wife's, whether by judgment or final concord, it was made a que_s- tion by Glanville, whether the wife could afterwards insti- tute any suit for it, or was bound, after her husband's death, to abide by what he had done. And it should seem, says he, that she ought not in such case to lose any- thing by the act of her hijsband ; because, while she was in potestate viri, she could not contradict him, or contravene his acts ; and therefore could not, unless he pleased, attend to her own property and concerns ; and yet, adds our author, it might be said on the other side, that what- ever is transacted in the king's court ought to be held firm and inviolable.^ Abbots and priors of canons regular used to be received as attorneys for their societies, of course, without letters from their convent ; other priors, whether of canons or monks, if they were cloistered, even though they were aliens, were never received in court without letters from their abbot or chief prior. The master of the Temple, and the chief prior of the hospital of St. John of Jerusalem were received of themselves, but no inferior persons of their order. When one or more were appointed attorneys in the above manner, it was made a question by Glanville, whether one might appoint his colleague to act for him, or some third person, ad lu- crandum vd perdendum.^ The principal might be compelled to fulfil everything that was done by his attorney, whether by judgment or ' Glanv., lib. 11, c. 3. ' Ibid. ' Ibid., c. 5. CHAP. IV.] VEIT OP RIGHT IN THE LOED'S COURT. 437 final concord : though it was settled beyond a question or doubt, that upon the default or inability of the princi- pal, the attorney was not liable.^ When it is said that the principal must be present in court to appoint his at- torney, it must be remembered what was before laid down — namely, that if a tenant did not appear after the third essoin, but sent an attorney, such attorney should be_ received ; but this was allowed for the necessity of the thing, as he was compelled by the judgment of the court, or by process of distress, to put some one in his place, ad Iwrandum vd perdendum. The foregoing writs of right were commenced directly and originally in the curia regis, and were there deter- mined. There were some writs of right which were not brought there originally, but were removed thither, when it had been proved that the court of the lord where they were brought had de recto defecisse, as it was called, or failed in doing justice between the parties ; and, in that case, such causes might be removed into the county court, and from thence into the curia regis, for the above reason.^ When, therefore, any one claimed freehold land, or ser- vice, held of some other person than the king, wnt of right m he had a writ of right directed to his lord, of tbeiot&amait. whom he claimed to hold the land, to the following ef- fect : Hex comiti W. salutem. ProBcipio tibi, qubd sine dila- tions teneas plenum rectum iV. de decern hidis terrm in MidlSle- ton, quam clamat tenere de te per liheram servitium fcedi unius militis pro omni servitio. Et nisi feceris, vicecomes de North- amptone facial, ne amplius inde clamor em avdiam pro defectu jusUtim, etc. The form of these writs was capable of infi- nite variety, according to the subject and circumstances of the demand.' Glanville says nothing upon the order and course of conducting these pleas in the lord's court, except intimating that they depended on the custom of the particular court* where they were brought. The way of proving a court de recto defecisse, to have failed in doing justice was this : The demandant made his complaint to the sheriff in his county court, and there showed the king's writ ; upon this, the sheriff sent some officer of his to the lord's court, on the day appointed by the lord for the parties to appear, that he, in the presence • Glanv., lib. 11, c. 4. ^ Ibid., lib. 12, c. 1. ' Ibid., c. 3-5. * Ibid., c. 6. 37* 438 HENRY II. TO JOHN. [CHAP. IV. of four or more lawful knights, wlio were to be present by the sheriff's command, might hear and see the de- mandant make proof that the court de recto defedsse ; this proof was to be by his own oath, and the oaths of two others swearing with him to the fact. By this solemnity were causes removed out of many courts into the county court, and were there heard over again, and finally deter- mined, without the lord or his heirs being allowed to make any claim for recovery of their judicature, as far as concerned that cause. Should a cause be removed before it had been proved in the above manner that there was a failure of justice, the lord might, on the day appointed for hearing the cause, make claim of cognizance, and for restoration of his court ; but this was never done in the curia regis, unless he had claimed it three days before, in the presence of lawful men, it not being suitable to the dignity of that court to be ousted, upon slight grounds, of the cognizance of a cause once entertained there. If no day was appointed in the lord's court, and therefore proof of failure of justice could not be made in the above way, the complainant might falsare curiam, falsify the court, or deprive it of its cognizance, by making that proof any- where within the lord's fee, if the lord did not reside usually there ; for though a lord could not hold his court without his fee, he might by law have it anywhere within it ;• if he did reside there, it was probably to be made a,t his mansion-house.' The writ of right, of which we have just spoken, was to be directed to the lord, of whom the demandant claimed to hold immediately, not to the chief lord. But it might sometimes happen that the demandant claimed to hold the thing in question of one lord, and the tenant claim to hold of another ; in this case, because one lord should not be enabled to dispossess another of his court and fran- chise, the suit of necessity belonged to the county court ; and from thence it might be removed to the curia regis, where both lords might be summoned, and their several rights discussed in their presence, as we before mentioned in cases of warranty.* We have said that the above-mentioned writs of right ofwfltaof belonged to the sheriff, upon failure of th« jusU6eB. lord's court. To the sheriff also belonged 1 Glanv., lib. 12, c. 7. ', ^ Ibid., c. 8. CHAP. IV.] OP WRITS OF JUSTICES. 439 several other suits, one of which, namely, that-de nativis,^ we have already mentioned. In short, all causes where the writ of the king or his justices directed him to do right between the parties (called since writs oi justicies), and such as contained the provisional clause qtibd si nm rectum fecerit, tunc ipse facias, etc., all these gave the sheriff a judicial authority to hear and determine.^ These writs were very numerous; some of them are mentioned by Glanville, from whom may be extracted a short account, that will give an idea of this provincial judicature. There was a writ directed to a lord, commanding him, ne injuste vexes, by demanding more services than were due ; and unless he desisted, the sjieriff was commanded to see right done.^ This is the only provisional writ ; the rest are all peremptory, directed to the sheriff solely. One was to give possession of a fugitive villein and his chattels ;* for admeasurement of pasture which was superouerated;* qvhd permittat habere certain easements ;^ to make rational biles divisas ;'' to observe a, rationabikm divisam of chattels that had before been made ;^ to respite a recognition di- rected to be taken by the justices ;' a facias habere rationa- bilem dotem ; to take care of a deceased man's chattels for payment of his debts ;" and to give possession of chattels that had been taken at a disseisin of the land, after the land had been recovered in an assize of novel disseisin.^' To these we must add writs of replevin, and two of prohibition to the ecclesiastical court, which deserve to be mentioned more at length. In the former part of this inquiry into judicial proceed- ings, we have seen that when land was seized into the king's hand for default or contempt of the tenant, he might within a certain time replevy his land, upon performing- what was required of him by the court. The power of distraining, which lords exercised over their tenants, re- quired a similar qualification — either that the tenant should perform what was due, or at least till it was ascer- tained by judgment whether anything or what was due, he should replevy ; that is, have a return of his goods upon pledges given as a security to stand to the award of justice in the matter. In order to effect this, several writs of re- 1 Vide ante, 410. < Ibid., c. 11. » Ibid., c. 16. '» Ibid., c. 20. 2 Glanv., Kb. 12, o. 9. * Ibid., c. 13. » Ibid., c. 17. " Ibid., c. 18. » Ibid., c, 10. « Ibid., c. 14. » Ibid., c. 19. 440 HENRY II. TO JOHN. [CHAP. IV. plegiare or replevin were devised. One was in this form, and seems to approach nearest to the modern writ of replevin : Hex vicecomiti salutem. Prceeipio tibi, qvM juste et sine dilcu- tione FACIAS HABERE G. AVERIA SUA PER VADIUM ET PLEGIUM ; unde queritur, qubd H. EA cepit bt detinet injuste pro con- suetudinibm quas ab eo exigit, quas ipse non cognoscit se debere; et ipsum prceterea indejust^ dedud facias, ne oporteat eum, etc} The next is in the nature of a prohibition, as well as a writ of replevin, though it is not properly a prohibition, which was always to prohibit a judicial proceeding. It is as fol- lows : Bex vicecomiti salutem. Frohibeo 'Ubi ne permittas qubd R. injuste exigat ab S. de libero tenemento suo quod tenet de N. defoedo ipsius R. in villa, etc.,^lus servitii quampertin^t ad illud liberum tenementum quod tenet ; et averia sua quae CAPTA SUNT pro ilia demandd, quam ille non cognoscit ad libe- rum tenementum suum, quod tenet, pertinere, d replegiari FACIAS donee loquela ilia coram nobis audiatur, et sdatur utrum iUud servitium debeat vel non, etc? To these may be added the two writs of prohibition to sndofprohiw- the ccclesiastical court just alluded to: Rex, "°''- etc., judidbus ecclesiastids salutem. Frohibeo vobis ne teneatis pladtum in curid ehristianitatis quod est inter N. et R. de laieofoed.o prcedicti R. unde ipse queritur qubd N. eum trahit in pladtum in curid ehristianitatis coram vobis, quia pladtum illud spectat ad coronam et dignitatem meam, etc? Besides this writ to the judges there went also an attach- ment against the party suing in the court Christian, to the following effect: Rex vicecomiti salutem. Prohibb .iB. ne sequatur fiadtum in curid ehristianitatis quod est inter N. et ipsum de laico foedo ipsius prcedicti N. in villd, etc., unde ipse queritur qubd prcefatus R, inde eum traxit in pladtum in curid ehristianitatis coram judidbus illis. Et si prcefatus N. feeerit te seeurum de clamore suo prosequendo, tunc pone per vadium ET SALVOS PLEGios prcedictum R. qubd sit coram me veljustitiis meis die, etc., ostensurus quare traxit eum in pladtum in curid ehristianitatis de laico faed,o suo, in villd, etc., de sicut illud pladtum spectat ad coronam et dignitatem meam, etc.* The man- ner of ordering the before-mentioned suits in the county court, depended on the customs of different counties ; for which reasons, as well as because it was not strictly within the design of his work, theue is no notice in Glanville.* 1 Glanv., lib. 12, c. 12. » Ibid., c. 15. ' Ibid., c. 21. ♦ Ibid., c. 22. 6 Ibid., c. 23. CHAP. IV.] OF PROHIBITION. 441 Before we leave the subject of writs of right, it will be proper to add some observatioa respecting the form of writs and of the proceedings thereon. The form of words in which a title to land was stated by the demandant, was called his •petition^ or demand, from the word jpeio, with which it begun. It sometimes happened that the writ con- tained more or less in it than the petitio stated to the court, as to the appurtenances of the land, or particular circum- stances of the case. Sometimes there was an error in the writ as to the name of the party, or the quantum of service, or the like. When the writ contained less than the peti- tion, no more could be recovered than was stated in the writ ; but when the writ contained more than the petition went for, the surplus might be remitted, and the remainder might well be recovered by the authority of that writ. If, however, there was any error in the name, then by the strictness of law another writ should be prayed: again, when there was an error in stating the quantum of service, the writ was lost. Suppose a writ of right, directed to the lord, stated the land tq be held by less services than were really due, Glanville thought that, in such case, the lord could not refuse to receive the writ, and proceed upon it, under pretence of his being concluded thereby, and suffer- ing a detriment to his service ; but he was left to make good his claim of service against the demandant, should he recover against the tenant." This is all that is to be collected from Glanville on the formal part of Pleading; a branch of our law which grew, in after times, to such a size, and was considered with so much nicety and refinement. It had become the law and custom of the realm, says Glanville, that no one should be bound to answer in his lord's coiirt concerning his freehold, without the precept or writ of our lord the king, or his chief justice, if the question was about a lay fee ; but if there was a suit be- tween two clerks concerning a freehold held in frankal- moigne, or if a clerk should be tenant of ecclesiastical land held in frankalmoigne, whoever might chance to be demandant against him, the plea concerning the right, ought, in such case, to be in foro eccksiastico ; unless it should be prayed to have a recognition utriim foedum eccle- ' This term is borrowed from the civil and canon law, where it is used in a similar sense. The ■petUio is called cownl in our law French. « Glanv., lib. 12, c. 22. 442 HENRY II. TO JOHN. [CHAP. IV, siasiicum sit vel laicum, whether it was an ecclesiastical or lay fee, of which we shall say more hereafter; for then that rec- ognition, as well as all others, was had in the king's court.^ "We have now dismissed the proceedings for the recovery of rights, with all their incidents and append- of remgniuons. g^ggg^ g^g f^j. g^g g^jjy intimatlon upoH tfals subjcct has come down to us. The next thing that presents itself to our consideration, is the method of recovering seisin, or mere possession The remedies for recovery of seisin seem to b,e founded on the policy of preserving peace and quiet in matters of property. As seisin was the' piimd facie evidence of right, the law would not allow it to be violated on pretence of any better right : and had pro- vided many ways of proceeding to vindicate the seisin, sometimes in opposition to the mere right. As questions concerning seisin came within the benefit of the late stat- ute of Henry II., to which we have so often before alluded, and were accordingly in general decided by recognitixm, we shall therefore speak of the different kinds of recog- nitions.^ One of those recognitions was called de morte antecessoris ; another, de ultimd prceseniatione ; another, utrhm tenementam sit fosdum ecclesiasiicum vel laicum; another, whether a person was seized at the day of his death ut de fosdo, or ut de vadio; another, whether a person was within, or of full age ; another, whether a person died seized ut de foedo, or ut de wardd ; another, whether a person made the last presentation to a church by reason of being seized in fee or in ward ; and the like questions, which often arose in court between parties ; and which, as well by the consent of parties as by the advice of the court, were directed to be inquired of in this way, to decide the fact in dispute. There was one recognition which stood distinguished among the rest, and was called de novd desseisind, of novel disseisin.' We shall speak of all these in their order. First of the recognition de morte antecessoris, which Astisa mortis sccms to bc a proceeding particularly calculated anucetsmis. ^qj. ^}jg protcctlon of hcirs against the intrusion made by their lords, upon the death of the ancestor last seized (a). If any one died seized of land, and was seized (a) Before Magna Charta, says Lord Coke; the writs of assize, of novel disseisin, or mort d'ancestor, were returnable either coram rege, or into the 1 Glanr., lib. 12, c. 25. « Ibid., lib. 13, c. 1. « Ibid., c 2. CHAP. IV.] ASSIZE MORT d'aNCESTOR. 443 in dominico suo sicut de foedo suo,\ that is, had the inheri- tance and enjoyment thereof to him and his heirs ; the heir might demand the seisin of his ancestor by the following writ : Bex vicecomiti salutem. Si G. filius T. fecerit te seeurum de clamore suo prosequendo, tunc summone per honos summonitores duodedm liberos et legales homines de vicineio de villd, etc., qubd sint coram me vel jusUtiis meis die, etc., parati sacramento recognoscere, si T. pater proedicti O. fait seisitus in dominico suo sicut de foedo suo, de und virgdto terr(B in villd, etc., die qua obiit; si obiit post primam corona- tionem meam, et si ille G. propinquior hceres ejus est. Et interim terram illam videant, et no'inina eorum imbreviari facias. Et summone per bonos summonitores B. qui terram illam tenet, qubd tunc sit ibi auditurus illam recognitionem. Et habeas ibi summonitores, etc. This writ was varied in some parts of it, according to the circumstances under which the person died seized ; as, whether he was seized the day he undertook a peregrination to Jerusalem, or St. Jago, in which journey he died ; or the day he took upon him the habit of religion, the latter being a civil death, which entitled the heir to succeed immediately.' If the heir was within age, the clause "si G. filius T. fecerit te seeurum de clamore suo prosequendo " was left out, the infant not being able, by law, to bind himself in any security ; as was also the clause, " si T. pater prcedicti G. obiit post primam coronationern meam."^ When the sheriff had received this writ, and the demandant had given security in the county court for prosecuting his claim,' they proceeded to make an assize in this way : Twelve free and lawful men of the vicinage were chosen, according to the direction of the writ. This was in the presence, perhaps, of the parties ; though it might be in the absence of the tenant, provided he had been properly summoned to attend : for he should always be once summoned, to hear who were chosen to make the recognition ; and if he pleased, he might except to some upon any reasonable cause. If he did not come at the court of common pleas, and this appeareth by Glanville, " coram me vei coram justitiariis meis," But after Magna Cliarta, the writs were returnable, " coram justitiariis nostris ad assissas cum in partes fllas venerint" (2 Inst., 24). The " ancestor " meant not merely a parent, but brother, sister, uncle, aunt, nephew, or niece of the claimant (Eraeton, 254, 261 ; 3 Inst., 399). " Glanv., lib. 13, c. 2, 3, 4, 6. » Ibid., c. 5. ' De clamore suo prosequendo. 444 HENRY II. TO JOHN. [CHAP. IV. first summons, they did not wait for him ; but the twelve jurors were elected in his absence, and sent by the sheriff to view the land or tenement whose seisin was in dispute: and Glanville says, that the tenant was to have one sum- mons more. The sheriff caused the names of the twelve to be inserted in a writ;' then summoned the tenant to be present at the day appointed by the writ, before the king or his justices, to hear the recognition. The tenant might essoin himself at the first and second day (provided the demandant was not an infant), but there was no essoin allowed him at the third day ; for then .the recognition was taken, whether he came or not ; it being a rule, that no more than two essoins should be allowed in any recog- nition upon a seisin only ; and in a recognition upon a novel disseisin, there was no essoin at all. At the third day, then, the assize was taken, whether the tenant came or not. If the jurors declared for the demandant, the seisin was adjudged to him, and a writ of the following kind went to the sheriff to give execution thereof: Scias qubd N. dimtionavit in curid med seisinam tantce terrcB in viUd, etc., per recogniUonem de morte antecessons sui versus JR. et idea tibi prcedpio qubd seisinam iUam ei sine dilations habere FACIAS, etc.^ By force of this writ he recovered not only seisin of the land, but seisin of all the chattels and everything else which was found upon the fee at the time of seisin being made by the sheriff. When the seisin was in this manner recovered, the person who lost might afterwards, notwith- standing, contest the right, in a writ of right ; liut Glan- ville doubted how long after the seisin so delivered, he might pursue his remedy for the right.* If the ostth of the jurors was in favor of the tenant, and he was absent, the seisin remained to him, without the adverse party having any power to recover it : though this did not take away his cause of action for the right, as in the former case ; nor, on the other hand, did a suit depending upon the right to a tenement, extinguish a recognition upon the seisin of one's ancestor, unless the duel was waged upon the right ; though the pursuing such a recognition was a sort of contempt of court ; the punishment, however, of which Glanville seems to think was not ascertained.* ' Imbremari. » Glanv., lib. 13, c. 7, 8. » Ibid., c. 9. * Ibid., c. 7. CHAP. IV.] ASSIZE MORT d'aNCESTOR : EXCEPTIONS. 445 When both parties appeared in court, it used to be asked of the tenant if he could say anything why the E.oaption» to the assize should remanere, as they called it ; that '^''''■ is, should be barred, or not proceed. Many good causes might be shown why the assize should remain. If the ten- ant confessed in court that his ancestor, whose seisin was in question, was seized in his demesne as of fee, the day he died, with all the circumstances expressed in the writ, there wag no need to proceed in the assize ; but if he con- fessed the seisin only, and denied all, or some circum- stances, the assize proceeded upon those circumstances which were not admitted. There were many other causes upon which the assize mortis antecessoris used to remain. The tenant might ad- mit, that the demandant was seized after the death of his father, or some other ancestor (whether such ancestor was seized the day of his death or not) ; and that being in such seisin, he did such or such an act which deprived him of the benefit of the assize ; as, for instance, that he sold the land to him, or made a gift of it, or quit-claimed it, or made some other lawful alienation thereof: and upon these points, says Glanville, they might go to the trial by duel, or any other kind of proof which was usually allowed by the court in questions of right. In like manner, the ten- ant might say, that the demandant had heretofore com- menced a suit against him concerning the same land, and th^t there was then a fine made between them in the king's court ; or that the land fell to him upon a final decision by duel, whether the duel was in the king's court or any other ; or that it was his by the judgment of some court, or by quit-claim solemnly made. Villenage might be ob- jected against the demandant ; and, if proved, it took away the assize ; as also did the exception of bastardy, and the king's charter confirming to the tenant the land in ques- tion ; the conjunction of more heirs than "one, as of women in a military fee, and of men and women together in free socage. Again, if it were admitted, that the ancestor whose seisin was in question had a seisin of some sort or other, namely, that he had it from the tenant or his ancestor, either in pledge, or ex commodato, or by any similar means, in these cases the assize was to remain, and the plea to proceed in some other way. Consanguinity was an ex- ception which took away the assize. 38 446 HENRY II. TO JOHN. [OHAP. IV. Where it happened, as we before mentioned in speaking of frank-marriage, that the eldest brother gave part of hia land to his younger brother, who died without heirs of his body ; in. such case, the assize would remain, on ac- count of the rule before stated, that nemo potest hceres simul esse qusdem tenementi et dominus. In like manner, if the demandant either confessed, or was proved to have been in arms against the king, any assize which he might bring against another would, ipso facto, remain. We are told also by Glanville, that by force of a particular law,^ bur- gage-tenure was a good exception to cause the assize to remain. When none of these, nor any other cause was stated why the assize should remain, the recognition proceeded in form, and both parties being there present, the seisin was tried by the oaths of the twelve jurors, and, according to their verdict, was adjudged to one party or the other.^ When the demandant in this assize was an infant, and the tenant was of full age, the tenant was not allowed an essoin, and the recognition proceeded the first day, whether the tenant appeared or not. It was so ordered for this never-faili ng reason , that wheresoever th e tenant, if present in court, could say nothing why the assize should remain, the recognition ought, by law, to proceed, without wait- ing for the appearance of the adverse party. Now, in this case, if the tenant were present, the allegation of the de- mandant's infancy would be no cause for the assize to re- main, and therefore the recognition was to proceed of course ; but if restitution was made to the infant by the recognition, the minor's coming of age was to be expected, before he could be made to answer upon the question of right,.6hould any be moved against him. The course was the same where both parties were minors.* But where the demandant was of full age, and the ten- ant a minor, it was different, for there the minor might essoin himself in the usual way : and when he appeared, he might pray that the recognition might not be taken till he was of full age ; and thus the recognition de morte antecessoris often remained, on account of the age of one of the parties. To procure, however, this delay, the minor ' This is another law alluded to by Glanville, of which we find no other mention. * Glan v., Ub. 13, ell. • Ibid., c. 1 2. CHAP. IV.] ASSIZE MORT d'aNCESTOE : EXCEPTIONS. 447 must say that he was in seisin of the tenement in ques- tion, and also, that his father or some other ancestor died seized : for neither a recognition, nor a suit upon the right, would remain as against a minor, if he himself had ac- quired seisin of the tenement, and he held it by no other right than what he had so made to himself. But should it be replied to what the minor had said, that true it was his ancestor died seized of the tenement in question, yet it was not ut de foedo, but only utde wardd; then, though the principal recognition would remain on account of the age of the minor, yet a recognition would proceed on that point, and a writ of summons would accordingly issue for twelve jurors to the following effect: Bex vicecomiU, etc., Swnmone per bonos summonitores duodedm liberos et legales homines de vicineto de villd, etc., quhd sint coram me veljusti- tiis meis ad terminum, etc., parati Sacramento recognoscere si B. pater N. qui infra oetatem est, seisitusfuit in dominico suo de unS, carucatd terrce in villd, etc., unde M.filius et hceres T. petit recognitionem de morte ipsius T. patris sui versus ipsum JV. ut de foedo suo die qud obiit, vel ut de wardd. M interim terram illam videant, et nomina eorum. imbreviari facias. Et summone per bonos summonitores prcedictum N. qui terram il- lam tenet,qubd sit ibi auditurus illam recognitionem, etc} In this case the proceeding somewhat differed from other instances of recognitions, for if a day had been given to both parties, there was then no summons to the tenant to hear the recognition ; but it proceeded without delay, and according to the verdict of those twelve jurors, delivered upon their oaths, it was declared what sort of seisin the ancestor had; and if it was only ut de wardd, the demandant recovered against the minor. But Glan- ville doubts whether this was enough to entitle the de-- mandaht to recover ; for, as yet, it did not appear that his ancestor died seized in his demesne as of fee, nor that he was the next heir ; and he puts it as a question whether recourse was to be had to the principal recognition upon that point. However that might be, yet in case it had been proved by the oaths of the twelve jurors, that the ancestor of the minor died seized as of fee, then the seisin was to remain to the minor till he attained his full age ; but after he was come of age, the other party might bring • Glanv., lib. 13, c. 13, 14. 448 HENBT II. TO JOHN. [CHAP. IV. in question the right, either against him or his heirs. It should be remembered that it was only in the above case that a recognition was allowed to proceed against a minor, for it was a general rule that a minor was not bound to answer in any suit by which he might be disinherited, or lose his life or member, except that he was obliged to an- swer to suits for his debts and also for a novel disseisin. If, in the above case, the seisin had been adjudged to the demandant, restitution was to be made in the form before mentioned ; and he, in like manner, could not be com- pelled to answer the minor upon the right till he was of full age. Such mutual permission to stir questions, after a determination, was grounded upon this prevailing rea- son, that whatever was transacted with persons under age, in pleas of this sort, ought not to remain fixed and unalterable."- If a person claimed the privilege of a minor, and it was objected to him that he was of full age, this was to be decided by the oaths, not of twelve, but of eight free and lawful men, who were summoned by a similar writ with those we have so often mentioned for summoning jurors : Octo liberos, et legates homines de vicineto de viM, etc., etc., re- cognoscere, utrum N. qui clamat unam hidam, etc., sit talis cetatis, quJbd inde placitare possit et debeat. Et interim terram Uhm wideant, et nomina eorum, etc., etc.^. If he was proved by this recognition to be of full age, they proceeded to the principal recognition, as in other cases. Here Glanville makes a question, whether he was thenceforward to be esteemed of full age, so as to lose his privilege of age as against all other persons ; and again, suppose he had been found a minor, whether that was sufficient, without more, to entitle him to the privilege in all other suits.* The next recognition is that de vltimd prcBsentaUffne. Amsauiuwa When a church was void, and a dispute arose vrmmtatimis. a^jo^t the presentation, the controversy might be determined hy this recognition at the prayer of either party. The writ in such case was of the following kind : Summone, etc., duodedm liberos et legates homines de vicineto^ etc., etc., parati Sacramento recognoscere, quis advocatus prce- sentavit vMmum personam, quce obiit ad ecclesiam de villd, etc., quce vacans est, ut dicitur, et unde N. clamat advoeationem. ' Glanv., lib. 13, c. 15. « Ibid., c. 15, 16. ' Ibid., c. 17. CHAP. IV.] ASSIZE DE ULTIMA PR^SENTATIONB. 449 Et nomina eorum imh-eviari facias. M summone per bonos summonitores H. qui prcesentationem ipsam deforceat, quod tunc sit ibi auditwrus iUam recognitionem, etc} What the essoins ' were in this recognition may be collected from what has gone before. The person to whom or to whose ancestors the last presentation was adjudged by the recognition, was considered as having thereby obtained seisin of the advowson, so that he was to present to the first vacancy, and his parson was to hold the presentation during his life, whatever was the fact about the right of advowson, for the person who lost the last presentation by a recogni- tion might yet move a question upon the right of advow- son.^ The tenant might, in this as well as the foregoing writ, state some reason why the assize should not proceed. He might say that he admitted the ancestor of the demand- ant made the last presentation, as the real lord and heir, but that afterwards he transferred the fee, to which the advowson was appendant, to the tenant or his ancestors, by a good and lawful title ; upon which allegation the assize would remain, and either party might pray a rec- ognition upon the truth of this exception. Again, either party might admit that he or his ancestors made the last presentation, but that it was ui de ibardd, not utdefoedo; upon which a recognition might be prayed, which would be summoned by a writ similar to the many we have mentioned: Duodedm liberos, etc., reeognoscere, si JR. qui prcesentavit, etc.,fecerit illam prcesentationem ut de fcedo, vel ut de wardd, etc. And if the recognition declared the last presentation was made ut de wardd, the advowson of the presentation was at an end, and henceforth belonged to the other party ; \i ut de foedo, the presentation remained to him.^ We come now to the recognition concerning a tene- ment, utrum sit laicum vel eeclesiasticum, which might be had upon the prayer of either party. For summoning such a recognition, there issued a writ like the former: Reeognos- cere, utrum una hida terrce, quam N. persona ecclesice de villa, etc., clamat ad liberam eleemosinam ipsius ecclesice sum versus R. in villd, etc., sit laicum foedum ipsius R. an foedum eecle- siasticum. Et interi m tm-am videant, etc.*' It was a rule in » Glanv., lib. 13, c. 18, 19. » Ibid., c. 20. ^Ibid., c. 20-22. * Ibid., c. 23, 24. 38* 2D 450 HENRY II. TO JOHN. [CHAP. IV. this, and indeed in all others, except the great assize, that no more than two essoins should be had, for the third was never admitted ; but where the court could be certified of the party's illness, whether he was languidus or not ; and as this, says Glanville, was not usually done in recogni- tions, they always were without a third essoin. This rec- ognition proceeded in the same way as the former, and if it was proved by the recogniition that the tenement was ecclesiastical, it could not afterwards be considered as a lay fee, though it might be claimed as holden by the church for a certain service.' The next was the recognition, whether a person died seized ut de fcedo, vel ut de radio. If a person claimed a tenement as having been pledged by him or his ancestors, and the other party claimed it not as a pledge, but in fee, then a recognition was resorted to, and was summoned, as in other cases : Recognoscere, utrkm N. teneat unum caru- catum, etc., infxdo, an in vadio, etc., or, it might be, utrum ilia carucata, etc., sit foedum vel hcereditas ipsius N. an inva- diata ei ab ipso H. vel ab ipso H. antecessore ejus. Et interim terrain videant, etc." Sometimes, when a person seized ut de vadio, the heir, upon such seisin, would bring a writ de morte antecesSoris against the true heir, who had by some means got seisin of the land ; and then, if the tenant ad- mitted the seisin of the demandant's ancestor, but said it was ut de vadio, and not ut de foedo, a recognition was summoned in the following form : Recognoscere, utrum N. pater R. fuerit seisitus in domnieo sua ut de fcedo, an ut de vadio, de uni carucat&, etc., die qud obiit, etc.^ If it was proved by the recognition to be a pledge only, and not an inheritance, theti the tenant who claimed it as his inheritance lost the tenement, so that he could not even make use of it in the manner we mentioned concerning actions of debt, for the recovery of the debt for which it was a pledge. If, on the other hand, it was recognized to be an inheritance in the tenant, the demandant could recover it no other way (if at all) than by a writ of right. Glanville makes a question, whether in this or any other recognition the warrantor was to be waited for, particu- larly if he was vouched after two essoins had been had.* The nature of the recognitions which remain to be men- » Glanv., lib. 13, c. 26. ^ Ibid., 26, 27. » Ibid., c. 28, 29, « Ibid., c. 30. ' Ibid., 20, • Ibid., c. 30. CHAP. IV.] ASSIZE DE ULTIMA PR^SENTATIONB. 451 tioned, may partly be collected from those of which we have already treated, and partly from the terms of the award made in court for their being taken, and the alle- gations of both parties, which were to be tried. Indeed, some of them have been already noticed ; as that for try- ing whether a person Was of age ;' that for trying whether a person died seized ut de foedo, or ut de wardd;° that for trying whether a presentation was made in right of the inheritance, or only in right of a wardship : « all these recognitions were conducted as the others, in respect of essoins, and they proceeded or remained for the same rea- sons as prevailed in the rest.* It must be observed of these assizes (for so they are sometimes called by Glanville, but more commonly recog- nitions), that they are not all of the same kind ; that de morte antecessoris being evidently an original proceeding, independent of any other ; the rest (not excepting that de uliimd prcesentatione,^ and that utricm hicum foedum vel ec- elesiasiicum) being merely for the decision of facts which arose in some original action or proceeding. Thus, the writs for summoning recognitions of the latter kind were simple writs of summons: they mentioned that a plea was depending in court by the king's writ ; and they were granted at the prayer of either party ; so that they seemed to be resorted to, by the assent of parties, for set- tling an incidental question, on which they put the dis- pute between them. On the other hand, the writ de morte antecessoris has all the appearance of an original commencement of a suit. It issued only upon condition that the demandant gave security to prosecute it — si G. JUius T. fecerit te securum de clamore suo prosequendo tunc summone — and made no mention of a plea depending. Of the same kind was the writ de novd dissdsind, which will be mentioned presently. Thus, theft, of all the assizes in use in Glanville's time, it was only that de morte antecesso- ris, and that de novd dissdsind, that were original writs. Whether there were any recognitions for trying collateral facts, besides those mentioned in Glanville, it is difficult 1 Glanv., lib. 13, c. 15-17. ' Ibid., c. 20-22. » Ibid., c. 13-15. * Ibid., c. 31. ' That the assize de ultima prcBserUatione was such, see what we have before said, p. 408, in the plea upon a right of advowson, where this writ is awarded to try a collateral matter, arising in a writ of right of advowson. 452 HENRY II. TO JOHN. [CHAP. IV. to determine ; this being one of the many circumstances of which we must remain ignorant, for want of knowing the terms of the famous law made by Henry II. about as- sizes. We shall, lastly, speak of that which was called the re- jtmadenom '^ognitio dk Tiova dissdsind (a). "When any one ditseiskm. disseized another of his freehold unjustly, and without any judgment of law to authorize him, and the fact was within the king's assize ; that is, if it was since the last voyage of the king to Normandy,* which was, it seems, the time limited for this purpose in the famous law so often alluded to ; he might then avail himself of the benefit of that law, and have the following writ to the sherift': QuESTUS est mihi N. qubd It. injuste et sine ju- (o) As to the word novel, it applied when the action was brought since the last eyre or circuit. The term disseisin is very ancient in our law, and is used in the sense of wrongful seizure by force. Thus the terms are ex- pounded in a chapter in the Mirror upon the subject (c. ii., 125) : Disseisin, it is said, is a personal trespass in a wrongful putting out of possession, "and if I take from you forcibly anything of which you have had the peaceable possession, I do disseize you ; and Ido wrong to the king when I use force where I ought to use judgment." The wrong is here taken as well for de- forcement or disturbance as for ejection. " Deforcement, as if one entereth into another's tenement when the rightful owner is elsewhere, and at his re- turn cannot enter therein, but is kept out, and hindered so to do. Disturb- ance is if one disturb me wrongfully to use my seisin which I have peaceably had, and the same may be in three ways — 1. As where one driveth away a distress, so that I cannot distrain in the tenement liable to my distress ; 2. Another is where one doth replevy his distress wrongfully ; 3. As if one dis- train me so outrageously that I cannot manure, plough, or use my land duly." It is further said, "All right is of two kinds — either a right of possession or of property ; and therefore the right of property is not determinable by this assize, as is the hwvm possession, or that which savoreth of a possessory right. The remedy of disseisin holds not of movables, nor of anything which falleth not into inheritance, as land, tenement, rent, advowson of a church, whether holden in fee or for term of life, or year, or mortgage, until so much be paid. X^eciion of a term of years falleth to the assize, which some- times Cometh by lease, etc. Into this offence fall farmers (lessees) who lease their land for a longer time than their term endureth in prejudice of the lord or the reversioner " (Ibid.). _ ' This was A. d. 1184, in the 30th year of Henry II. ; so that the time of limitation, during that reign, was never more than about four years. In the printed text of Glanville, there are these words between brackets : Quod qxumdoque majus quandoque minus censelur; which passage has been thought to import, that the time of limitation was often varied in this king's reign. Another meaning of this passage may be, that the period (the ter- minus a quo) being fixed, it must necessarily, by the lapse of time, be length- ening every day. After all, the passage lies under some suspicion of inter- polation, and was, perhaps, for that reason put between brackets by the editor. This voyage into Normandy is referred to by later writers, as tie limitation be&re the statute of Merton altered it. CHAP. IV.] ASSIZE OF NOVEL DISSEISIN. 453 dido dissdsivit eum de libero tenemento suo in viUd, etc., post ultimam transfretationem meam in Normanniam : et idea tibi pmdpio qubd si pr^fatus N. pecerit te sbcurum db cla- MORB suo prosequbndo, tunc focios tenementum ittud resdsiri de cataMis quce in eo capta fuerunt, et ipsum cum catallis esse facias in pace usque ad chusum Paschce. Et interim fadas duodedm liberos et legates homines de vidneto videre terram^ il- lam; et nomina eorum imbreviari fadas. Et summone ittos per bonos summonitores, qubd tunc sint coram me veljustiUis meis, parati indefacere recognitionem. Et pone pbr vadium ET salvos plegios pr^diotum R. vel ballivum suum, si ipse non fuerit inventus, qubd tunc sit ibi auditurus illam reeognitionem, etc} These writs of novel disseisin were of different forms, according to the nature of the freehold in whose prejudice the disseisin was made. There is one in Glanville for razing or prostrating a dyke ad nocumentum liberi tenemenii; another for razing a mill-pool ad nocumentum liberi tene- m^nti; another for a common of pasture appertaining ad liberum tenementum.^ These are all the writs of novel dis- seisin mentioned in Grianville. In this recognition no essoin was allowed, but the recog- nition proceeded at the first day, whether the disseizor appeared or not — for here no delay was suffered either on account of minority, or a vouching to warranty ; unless a person would in court first acknowledge the disseisin, and then he might vouch a warrantor, and the recognition would remain ; the disseizor would be in the king's mercy — the warrantor was summoned, and the proceeding went on between him and the disseizor who vouched him. It must be observed that in this recognition whoever lost his suit, whether the demandant or tenant, or, as Q-lanville terms them (with a view perhaps to there being a sort of criminality^ in a disseisin), the appellor and the appealed, he was in the king's mercy. If the appellor did not prosecute, by keeping the day appointed, his pledges also were in the king's mercy ; and the like happened to the other party if he made default. The penalty ordained by the constitution which established this proceeding was only the misericordid regis, so often mentioned. It often 1 Glanv., lib. 13, c. 32, 33. « Ibid., c. 34-37. ' In the canon law, a forcible intrusion into an ecclesiastical benefice is constraed ra/pina. Corv. Jus. Can., lib. 4, tit, 24. 454 HENRY II. TO JOHN. [OHAP. IV. happened in this recognition that the demandant, after he had proved the disseisin, wanted a writ to the sheriff to he put in possession of the produce and chattels upon the land, the form of which writ we have before shown.* It should he remarked that this wril; to recover the chattels pursued the original writ of novel disseisin, which di- rected the party to be reseized of the chattels ; in no other recognition was there any mention in the judgment de fnicUbus et eataUis? Having taken this view of the divers manners in which Of terms and justlce was Obtained, it seems to follow that vacations, something should be said of the times which were allotted, at this early period, for the regular adminis- tration of it. The division of the year into term and vacation has been the joint work of the church and ne- cessity. The cultivation of the earth, and the collection of its fruits, necessarily require a time of leisure from all attendance on civil affairs; and the laws of the church had, at various times, assigned certain seasons of the year to an observance of religious peace, during which all legal strife was strictly interdicted. What remained of the year not disposed of in this manner was allowed for the administration of justice. The Anglo-Saxons had been governed by these two reasons in distinguishing the peri- ods of vacation and term ; the latter they called dies pans regis, the former, dies pads Dei et sanetm ecclesice.^ The par- ticular portions of time which the Saxons had allowed to these two seasons were adhered to by the Iformans, to- gether with other Saxon usages, and their term and va- cation were as follows : It seems that IZ&n/term began OctaJbis Epiphanice — that is, the 13th of January, and ended on Saturday next be- fore Septuagesima ; which, being movable, made this term longer in some years than others. Easter term began Oc- tahis Paschce (nine days sooner than it now does), and ended before the vigil of Ascension (that is, six days sooner than it now does). Trinity term began OctaMs Pentecostes ; to which there does not seem to have been any precise con- clusion fixed by the canon which governed all the rest ; it was therefore called terminus sine termino; it seems to have been determined by nothing but the pressing calls 1 Glanv., lib. 13, c. 38, 39. ' Ibid., c. 38. » Leg, Confes., o. 9. CHAP, IV.] OF THE CRIMINAL LAW. 455 of haytime and harvest, and the declension of business very natural at that season. But the conclusion of it was fixed afterwards by parliament ; by stat. 51 Hen. III. it was to end within two or three days after quindena sancii Johannis — that is, about the 12th of July, In later times, by stat. 32 Hen, VIII., Trinity term was to begin Orastino sanctoe TrinitaUs. Mwhadmas term began on Tuesday next after St. Michael, and was closed hy Advent; but as Advent Sunday is movable, and may fall upon any day between the 26th of Ijfovember and 4th of December, therefore the 28th of November, as a middle period, by reason of the feast and eve of St. Andrew, was appointed for it. Thus were the terms in the latter part of the Saxon times, and during this period, almost in the same state we have them now ; and by them the return of writs and appearances were governed.^ I Having gone through the law of private rights, and the \ several remedies furnished for the recovery iha criminal ?,]}d protection of property, it remains to say ^^■ something of the criminal law as it stood at the latter end of the reign of Henry II. ; but, previous to this_^ it may be proper to take a view of some few regulations that bad been made on the subject of crimes and punishments antecedent to the time of which we are now writing. We have seen that a law was made by William the Con- queror, which took away all capital punishments, and, instead thereof, directed various kinds of mutilation. This law was repealed in one instance, a. d. 1108, in the 9th year of Henry I., when it was enacted, that any one taken in furto vet htrocinio should be hanged, with- out allowing any pecuniary were to be paid as a redemp- tion^ (a). The law of William, however, still operated in other cases ; the punishment of crimes consisted in mutilations of various kinds ; and it will presently be seen that this law of Henry I. was dispensed with or repealed. . . Some provisions respecting the administration of crimi- nal justice had been made by the statutes of Clarendon that (a) This is a mistake. The law was, that among the offences which put a man in miserieordid regis was theft, if worthy of death, " Furtum probatum et morte dignum " (Leges Henriti Primi, c. xiii.). But, in the same chapter, even homicide is allowed ita compensation. 1 Spelman, Orig. of Terms. " Wilk., Leg. Ang.-Sax., p. 304. 456 HENRY II. TO JOHN. [CHAP. IV. were published at N"ortliamptpn. It was thereby directed, that any one charged before the king's justices with the crime of murder, theft, robbery, or receipt of such offend- ers, of forgery, or of malicious burning, by the oaths of twelve knights of the hundred ; if there were no knights, by the oaths of twelve free and lawful men, and by the oaths of four out of every vill in the hundred ; that any one so charged should submit to the water ordeal, and if he failed in the experiment he should lose one foot ; and afterwards at Northampton it was added, in order to make the punishment more severe, that he should lose his right hand as well as one of his feet ; and also that he should . abjure the realm, and leave it within forly days; a. jura ion. ^^^ qyqh if j^e was acquitted by the water or- deal, that he should find pledges to answer for him, and then he might remain in the realm unless he was charged with a murder or some other heinous felony by the com- monalty and lawftil knights of the country. If he was charged with any of those crimes, notwithstanding his acquittal by the ordeal, he was to leave the kingdom within f)rty days, and carry aU his goods with him (with a saving of all claims his lord might have on them), and so abjure the realm and be at the king's mercy as to any permission to return. This regulation was to be in force 50 long as the king pleased, in all cases of murder, treason, and malicious burning; and in all the before-mentioned crimes, except in small thefts and robberies committed during the war (which was just concluded), in taking horses, oxen, and the like. Thus an offender was subjected to a trial, by which, if convicted, he was to lose a limb and be banished ; if ac- quitted, he was likewise to be banished. Such a method of proceeding can be imputed to nothing but some doubt entertained of the justness of this trial by ordeal. It is related that, before this, "William Rufus having caused fifty Englishmen of good quality and fortune to be tried by the hot iron, they escaped unhurt, and were of course acquitted; upon which tl^at monarch declared he would try them again by the judgment of his court, and would not abide by this pretended judgment of God, which was made favorable or un- favorable at any mmi's 'pleasure. The king looked upon this trial to be fraudulently managed, as no doubt it was ; and Henry II., convinced of the firaud, would not allow CHAP. IV,] CRIMINAL PROSECUTIONS. 457 such an acquittal to have its full effect ;» though it is a strong mark of the barbarism and prejudices of these times, that a practice liable to such suspicions was still suffered to continue, as a judicial proceeding, and that they would rather punish those who were lawfully ac- quitted by it than altogether abandon such an abominable proceeding. Another provision made by the statute of Northamp- ton related to the old law concerning decennaries. It declared that no one in a borough or vill should entertain any strange guest in his house more than one night unless he would engage to answer for his appearance ; or such guest had some reasonable excuse for staying, which his host was to make known to the vicinage ; and when he went away, it was to be by day and in the presence of the vicinage. Another ordinance was to secure the punishment of criminals who had been prosecuted and appealed before the inferior magistrates in order to a final trial before the king's justices ; it declares, that any one taken for murder, theft, robbery, or forgery, and con- fessing himself guilty before the chief officer- of the hundred or borough, or before certain lawful men, should not be permitted to deny the fact when brought before the justices.^ Such is the substance of certain statutes made for the improvement of criminal proceedings, in this and the preceding reigns. We shall now speak of the penal law in general, and the way of prosecuting offenders, as prac- tised towards the end of the reign of Henry II. But in this we shall confine our inquiries to such objects as re- late to the curia regis only ; contenting ourselves with subjoining a short account of the proceedings before justi- ces itinerant. ' When a person was infamatus, as Glanville terms it, or accused of the death of a man, or of any sedi- M„ 2 Inst., 42. CHAP. IV.] KAPE. 461 further than in cases of murder; though it was required of him in this case that he should have been an eye-wit- ness, which could not be in the former, from the very description of the evime, nullo vidente ; and therefore the zeal and piety of the relation who charged a man with crime, seems to have been taken instead of proof Again, in this suit a woman might be heard as accuser, if it was for the death of her husband, and she could speak of what she herself saw. It will be shown presently, that a woman might bring an appeal of an injury done to her own pei-- son,_and, according to Glanville, it was only upon the consideration of man and wife being one flesh, that she was allowed this appeal of the death of her husband. In these cases, the person accused might choose either to let it rest upon the proof made by the woman, or purge him- self from the imputed crime per Dei judicium. Sometimes a person charged • with simple homicide, if he had been taken in flight, with a crowd pursuing him, and this was legally proved in court by a jury of the country, was obliged to undergo the legal purgation, without any other evidence being brought against him.* The crimen ineendii, or burning, was prosecuted and tried in the same way, as was also the crimen roberice, or rob- bery.^ The crimen raptQs, says Glanville, was, when a woman declared herself to have suffered violence from a man in the king's peace, by which latter cir- ^^' cumstance nothing more was meant than that the offence was such as was cognizable in the king's court only. The law directed that when a woman had sustained an injury of this kind she should go, while the fact was recent, to the next village, and there injuriam sibi illatam probis ham- inibus ostendere, et sanguinem, si quis fuerit effusus, et vestium seissiones ; she was to do the same to the chief officer of the hundred, and, lastly, was to make a public declara- tion of it in the first county court, after which she was to institute her plaint, which was proceeded in as in other cases, a woman being suffered to prosecute her appeal in this, as in all other instances of an injury done to her per- son. It should be remembered, as we before said, that it was in the election of the person accused, either to sub- ' The expression of Grlanville which is here construed charged is resfatus. ' Glanv., lib. 14, c. 3. » Ibid., c. 4, 5. 39* 462 HENRY 11. TO JOHN. [CHAP. IV, mit to the burthen of making purgation, or leave it upon the evidencfe of the woman herself. The judgment, in this crime, was the same as in those before mentioned. It was not enough for the offender, after judgment passed, to offer marriage, for in that manner, says Glan- ville, men of a servile or inferior condition would be ena- bled to bring disgrace upon women of rank, not for once, but forever ; and, on the other hand, men of rank might bring scandal on their parents and relations by unworthy marriages. "We are informed, however, by the same au- thority, that it was customary, before judgment passed, for the woman and the man to compromise the appeal and marry, provided they had the countenance of the king's license, or that of his justices, atid the assent of parents.^ The crimen falsi, in a general and large sense, cohtained in it many species of that crime — the making of false charters, false measures, false money, and other falsifica- tions, the manner of prosecuting which appeals was the same as those we have just mentioned. A distinction, however, was observed between forging royal and private charters ; if the former, the party was sentenced as in case of Isese majesty ; if the latter, the offender was dealt more tenderly with, as in other cases of smaller forgeries, which were punished only by the loss of limbs.^ Of the crimen furU, or theft, and other pleas which be^- lohged to the sheriff's jurisdiction, Q-lanville gives no account, as they did not come within the design of his work, which was confined to the curia regis (a). The prosecution of them was ordered differently, according to the usage and practice of different counties.* Thus stood the laws of crimes, and the method of pro- proceedings ceeding, as far as related to the superior court. '"ttSeSf^' "What was the office of the justices itinerant (a) Yet he regatds it as a plea of the crown, for he hrings it under that head, and it clearly was so, being so declared in the laws of Henry I. (c. xiii._), "Quse placita mittunt homines in misericordia regis;" among which is "furtum probatum et morte dignum," etc., c. xlvii. : "De causes criminali- bus," which begins, " de ftirto." Our author imagined that because triable by the sheri^ it was not a plea of the crown ; but that was a mistake, for the sheriff was the king's judge, whilst by Magna Charta it was declared that pleas of the crown should not be tried before him, which of itself im- plied that theft was so, as it was the only felony he tried. 1 Glanv., Ub. 14, c. 6. = Ibid., c. 8. » Ibid. CHAP, rsr.] JUSTICES ITINERANT, 463 in the reign of Henry II., we have before stated from the statute of Northampton, when this establishment was revived. The jurisdiction of these justices was con- siderably increased soon after, as may be collected from certain capifula, or articles of inquiry, which were de- livered to the -justices itinerant in the year 1194, which was the fifth year of Richard I. According to those directions, they were to begin by causing four Knights to be chosen out of the whole county, who, upon their oaths, were to elect two lawful knights of every hundred oi wapentake ; and those two were to choose, upon their oaths, ten knights in every hundred or wapentake ; and if there were not knights enough, then free and lawful men. These twelve together were to answer to all the eapitula which concerned that hundred or wapentake. When that was done, the justices were to inquire of and determine both new and old pleas of the crown, and all such as were not determined before the king's justices ; ,also all recognitions, and all pleas which were summoned before the justices by the king's writ, or that of his chief justice, or such as were sent to them from the king's chief court. They were to inquire of escheats, presentations to churches, wardships, and marriages, belonging to the king. They were to inquire qf malefactors, and their re- ceivers and encouragers ; of forgers of charters and writ- ings ; of the goods of usurers ; of great assizes concern- ing land worth 100 shillings a year, and under ; and of defaults of appearance in court. They were to choose, or cause to be chosen, three knights and one clerk in every county, who were to be custodies placitorumcoronce; the ^ame, probably, who were afterwards called coronatores, but they are not mentioned by that name in this reign. They were to see that all cities, boroughs, and the king's demesnes, were taxed. They were to in- quire of certain rents in every manor of the king's de- mesnes, and the value of everything on those manors, and how many carucates or ploughlands they contained. They were also to swear good and lawful men, who were to choose others in different parts of the county, to be sworn to see the king's escheats and wardlands, as they fell in, well stocked with all necessaries. Besides these, there were several articles relating to the Jews, which were oc- casioned by the outrages that bad lately been committed 464 HENKT II. TO JOHN. [CHAP. IV. by the populace against that people ; as also concerning the lands and goods of John, Earl of Morton, who had incurred great forfeitures to the king.* In the year 1198, being the tenth year of this king, the justices itinerant had certain capitum delivered in charge to them, somewhat difterent from the preceding. As a view of such articles is the only means of gaining a true idea of the commission and office of these justices, it will be proper just to mention its contents. They were directed to hear and determine all pleas of the crown, both new and old, which had not been determined before the king's jus- tices ; and all assizes de morte antecessoris de novd disseisind, and de magnis assisis concerning lands of £10 by the year and under ; and of advowsons of churches. They were to inquire of vacant churches, wards, escheats, and marriages, as in the former capitula; of usury ; of those in misericordiS regis; of purprestures ; of treasure-trove; of malefactors and their receivers ; of fugitives ; of weights and measures, according to the late assize made thereon the preceding year ; of customs received by officers of seaports ; lastly, of those who ought to appear at the iter, but neglected their duty.^ This same year, and before the itinera of the justices were over, the king appointed his justices of the forest to hold an iter, which was as solemn a proceeding as the other, but carried with it more terror, and a degree of oppression, on account of the grievous nature of the insti- tution of forests in all its parts. These justices were commanded to summon, in every county through which they went, all archbishops, bishops, earls, barons, and all free tenants, with the chief officer and four men of every town, to appear before them ad plaeitaforestce, and hear the | king's commands.' —^ J It does not come within the scope of this history to The king and cnter miuutcly into a detail of the constitution government, j^jj^ political cvouts iu the govemmeut of this and the succeeding times. A history, however, of our jurisprudence would be imperfect without giving some ' Wilk., Leg. Ang.-Sax., p. 46, it seq. ' Ibid., p. 350. ' Ibid. For the assize of the forest, and the articles of inquiry before the justices, see Wilk., Leg. Ang.-Sax., p. 351. CHAP. IV.] THE KING AND GOVERNMENT. 465 small consideration to this subject, so far, at least, as it is connected with the formation and administration of our laws. In the first ages of civil society, while laws are few, and the execution of them feeble, much must be left to the authority of the sovereign power. As the experience of later times points out the deficiencies of former laws, and particular remedies are applied, the exercise of this sovereign power seems so far to be abridged. The pre- rogative of the prince, and the dominion of the laws, in this manner occasionally take the place of each other ; upon the increase of the latter, the former gives way and retires, collecting all its powers fof the sole purpose of aiding and enforcing a due observance of the established law. The just and requisite prerogative of the crown was perhaps very extensive in the Saxon times ; but after the Conquest there concurred a number of circumstances, all tending to increase the power of the sovereign beyond the mere exigencies of orderly government. The revolution effected by William did, in its conse- quences, render that prince powerful beyond all the sov-- ereigns of his time, and all that have reigned since in this kingdom; for it threw the greatest part of the nation into a state of dependence on him for their lives and es- tates. The novelty of his reign, and the peculiar situa- tion in which the prince stood, drove him upon every exertion of which his authority was capable ; and, not- withstanding he confirmed to the nation the enjoyment of all their customs and laws, he made those laws them- selves occasionally submit to the control of his power, whenever the necessities of his government demanded it. So much was the whole kingdom, awed by his greatness, that no infringement of their laws was resented by the people during his reign. What had been by force acquired to the Conqueror, continued in his successor through the same force, or the prevalence of -an established government ; and though some concessions were reluctantly made by subsequent monarchs, as will be seen hereafter, and the high claims of the crown were, in some degree, relaxed in favor of the people, they had no lasting effect : the exercise of an extensive prerogative continued in the crown through all 2JE 466 HENET II. TO JOHN. [CHAP. IV, these reigns, and rendered the condition of the subject extremely precarious and miserable. The crown was assisted in the exercise of this preroga- tive by the manner in which the Norman law was intro- duced. The English, who had seen the laws of their Anglo-Saxon ancestors confirmed, had the fullest confi- dence that thpy should be governed by them in all ques- tions concerning their persons and property. In the meantime, the Normans, who had taken sole possession of the king's court, had the debate and determination of all questions there agitated ; and, continua,lly recurring to the notions and principles of law in which they had been bred, determined conformably with that law most points of doubt and difficulty.. Thus the English, while they possessed the letter of their law inviolate, saw all their old customs explained away, or. so cramped and modified as to amount almost to an abrpgation of them. In this conflict betvyeen the Norman and English laws, the prerogative of the king must necessarily have found occasions of enlarging its pretensions. "While the rules of property and methods of proceeding were yet fluctu- ating and unsettled, every chasm was supplied, and every impediment removed, by the great power of the crown ; the only subsisting authority which could reconcile the two contending polities. While the rights of persons and of property were not precisely defined, and it was not unanimously agreed by what set of rules and principles they were to be judged, the crown took every advantage, and interfered and dictated absolutely in most judicial inquiries. It was during this precarious state of our laws that the people were constrained to purchase the favor of the crown, in order to obtain justice in the king's courts.' Fines were paid for the express pui^ose of having justice and right. Presents of a considerable value were made by suitors to obtain the opinion of the king's justices in a cause depend- ing ; for writs, pleas, trials, judgments. Sometimes part of the debt in contest was proffered to the crown for a favorable decision. Thus was the common course of jus- tice made liable to the interference and control of royal authority. * Madox, Ezchequer, 293. CHAP. IV.J NATURE OF THE GOVERNMENT. 467 This is only one instance, among many others, of the scope given to the exercise of supreme authority, vrhile the state of our law was so unsettled, and its efforts so feeble. Besides the uncertain condition of our legal polity, other causes, rooted in the constitution of the government, contributed to arm the king with extraordinary powers. The strict feudal submission of a vassal to his liege lord encouraged the notion of an entire obedience in all things to the king, who, being supreme over all the lords in his kingdom, was, of course, to surpass them in the petty pre- rogatives which they themselves claimed within their own demesnes. These various causes concurring with the im- mense authority possessed by the first Norman king, en- abled this race of monarchs to assume prerogatives, and exercise acts of sovereignty, to the last degree oppressive and tyrannical. Besides the exertions of prerogative, the law itself, which had been framed under so baneful an influence, was arbitrary and cruel. Tenures and t\ie forest laws were the source of endless jealousies and discontents, and occa- sioned most of the public disorders, which broke out with such violence in these times. The forest laws were first introduced by the Conqueror, to protect his favorite diver- sion of hunting. It was not sufficient that this mighty hunter assigned certain tracts of land, the property of his subjects, to be converted into forests ; that he dis- peopled and made desolate whole districts of cultivated country ; but, to secure the full enjoyment of it, he caused regulations to be framed, calculated to restrain and pun- ish with severity every minute invasion of this new insti- tution. The economy of the forest occasioned a number of grievous penalties; offences respecting vert and venison were punished with barbarous mutilations ; and other de- linquencies with fine and imprisonment. A regular series of courts was erected to be held at stated periods, in one of which the judges obtained the distinguished style of Justices in M/re. The fruits and consequences of the feudal constitution made another, and no small part of the grievances then complained of, and were borne with great impatience by both peoples. The English, who had voluntarily con- sented to the introduction of tenures, principally as a fiction affording a basis for a national militia, ill endured 468 HENRY II. TO JOHN. [CHAP. IV. the oppressive conclusions drawn from that establishment ; conclusions which, with respect to them, had no foundation in reason or truth. Possessed of their land long before "William entered the country, they revolted with indig- nation at the obligations by which they were now said to be bound to their lords. Feeling the burthens of this new state, they sighed after that freedom which they had enjoyed under their Saxon kings ; and, in their discourses with the Normans, instilled into them a persuasion, that other conditions of society, and other institutions than those which they labored under, would consist with a well-ordered government. Nov were the Normans them- selves satisfied with the increasing burthens of their own polity, which had accumulated much beyond their origi- nal design in establishing it. It was little recompense to a great lord, that he could exercise the like sovereignty over his tenants which he himself suffered from the king ; while the rear vassals, who were mostly English, without any power to compensate themselves, were in a state of society*truly deplorable. These considerations united the nation in a common cause. The cry was for a restoration of the laws of Edward the Confessor, as a concise way of repealing all the late innovations. But the abolition of a system to which the kingdom had conformed for some years could hardly be obtained ; to procure some alterations that would temper and abate the extreme evils complained of was as much as could be expected. This was done by charters granted by several of our kings. Henry I. being possessed of the throne by a precarious title, endeavored to conciliate the people by concessions of this kind. A formal charter was signed by the king. In this he abrogated, in general words, all abuses that had lately crept in; and declared that no reliefs should be taken but such as were just and lawful. He disclaimed any right to exact money from his barons for. license to marry their daughters, or other females ; and engaged to five all female wards in marriage by the advice of his arons. The dower of widows was secured ; and the king engaged not to give them in marriage without their con- sent. The widow or some other relation was to have the custody of the lands and persons of their children. All barons were enjoined to act in the like manner towards their vassals. CHAP. IV.J THE CHARTERS. 469 Having made these, with other ordinances relating to crimes and punishments, he expressly confirmed the laws of Edward the Confessor, cum illis emendaUonibus quibus pater mens eas emendavit condlio baronum suonm.^ Thus were sonie branches of _ the feudal law, in a degree, checked in their growth, while the body remained firmly rooted and flourishing. This charter was confirmed by Stephen,'' who granted another, merely to secure the liberties of churchmen ; to which order he had been mostly indebted for the posses- sion of the crown.* The charter of Henry I. was also confirmed by Henry II.* This charter, however, did not reach all the mischiefs that prevailed in the kingdom ; nor were the provisions which it did contain faithfully observed (a). They, with all the rights of the people, were trampled on by succeed- ing monarchs. The unstable nature of government in these times made the condition of the people depend very much on the character of their kings : a circumstance which was happily experienced in the reign of John. With all that' violence which hurried him on to sport with the liberties of a people, this prince wanted the firmness necessary to command respect and obedience ; and while he excited their resentment by a wantonness of tyranny, he encouraged their resistance by his pusilla- nimity. Exasperated at repeated insults, his barons as- sembled, and with arms in their hands demanded of him a charter which might secure their property and persons from future invasions of power. A convention was soon held between the king and his people in an open field, called Eunnymede, near Staines, in all the terrors of mar- (o) The language of the charter of Henry I. was general, and that of Henry II., confirming it, was still more so. And contemporary history amply attests what the statement of Sir J. Mackintosh hints, that John so abused the facili- ties of oppression which belonged to his paramount seignory, with reference especially to tbe female wards. It is stated by a contemporary chronicler, and there is no reason to doubt it, that the primate discovered a copy of the Charter of Henry I., and made it the basis of the new one extorted from John. The chief object of the barons, no doubt, was their own protection ; and Dr. Henry says, in his History of Oreat Britain, " though the great barons were very desirous to prevent the tyrannical exercise of the feudal authority towards themselves, many of them were much inclined to exercise it in the same manner towards their vassals, and continued to do so after the charter " (B. 3, c. 3). See Sir W. Blackstone's work on the Charters. » Blac. Tracts, vol. u., p. 8. "Ibid., p. 9. » Ibid., p. 10. ♦ Ibid., p. 11. 40 470 HENET II. TO JOHN, [CHAP. IT. tial preparation. The king encamped, with some few adherents, on one side ; the barons on the other. After some days of debate and consideration, the barons drew up a set of capitula, containing the heads of grievances, grounded upon the charter of Henry I. These, with some small qualifications to which they acceded, were there thrown into the form of a charter ; to which the king affixed his seal. This charter of King John, usually called Magna Charta, and the Charter of Liberties, is more full and explicit than that of Henry I. (a) In this, reliefs were fixed at a cer- (o) This charter forms an important step or stage in our legal history, and some account of it here will be convenient. As alrea(^ mentioned, the feudal system had been grossly abused by the king, as it had been by his predeces- sors. The charter of Henry I. had chiefly been directed against these abuses, and the first articles drawn up for the present charter were founded upon it, and had reference to these abuses. Thus came an article that the king nor his bailifls shall not seize upon any land for debt, while there are sufiSoient goods of his debtors ; nor shall the securities of a debtor be distressed so long as the principal debtor is solvent; but, if the principal debtor fail in payment, the securities, if they are willing, shall have the lands of the debtor until they shall be repaid, unless the principal debtor shall show himself to be acquitted thereof from the sureties. Then came the article that common pleas shall not follow the court of our lord the king, but shall be assigned to any certain place, and that recognition be taken in the several counties in this manner ; that the king shall send two justiciaries four times in the year; who, with four knights of the same county, elected by the people thereof shall hold assizes of novel disseisin, mort d'ancestor, and last presentation, nor shall any be summoned for this unless they be jurors, or of the two parties (9). That a freeman shall be amerced for a small fault, according to the degree of tKe fault, and for a greater crime, according to its magnitude, saving to him his contentment. A villein also shall be amerced in the same manner, saving his wainage, and a merchant in the same manner, saving his merchandise, by the oath of faithful men of the neighborhood (10). Tliat a clerk shall be fined according to his lay fee in the manner aforesaid, and not according to his ecclesiastical benefice (11). That no town shall be amerced for the making of bridges for rivers' banks, unless they shall of right have been anciently accustomed to do so (13). That the assizes of novel disseisin and mort d'ancestor be shortened, and made like to other assizes (14). That no sherifiT shall of himself enter into pleas belonging to the crown without the crown's authority ; and that counties and hundreds shall be at the ancient farm, without increase, unless they be of the manors of our lord the king (15). If any who hold of the king shall die, although a sheriff or other officer of the king shall seize and register his goods by the view of lawful men, yet nothing shall be removed until it be fully known if he owe anything, and his debts to our lord the king shall be paid ; then, when the whole of the king's debts are paid, the remainder shall be given up to the executors, to do according to the will of the deceased, and, if he should not owe anything to the king, all the goods of the deceased shall be restored. If any freeman die intestate, his goods shall be distributed by his nearest of kindred and his friends, and by the view of the church. No constable or other officer shall take corn or other goods, unless he shall CHAP. IV.] THE GREAT CHARTER OF JOHN. 471 tain sum ; many regulations were made concerning ward- ship and marriage, the righ ts of persons, and the adminis- presently render payment, or unless he shall have respite by the will of the seller. No constable shall distrain any knight to give money for castle guard, if he be willing to keep it in his own person, or by any other true man, if he shall not be able to do so by any reasonable cause. No sheriff or bailiff of the king, nor any other, shall take horses or carts of any freeman for coin- age, unless it be by his own free will. Neither the king nor his bailifls shall take another man's timber for castles or for any other uses, unless it be by the will of him to whom the timber was belonging. That all wears for the time to come shall be destroyed in the riversjof Thames and Medway, and throughout all England. Nothing shall be given for a writ of inquisition of life or limb, but it shall be granted freely without force and not denied. No freeman's body shall be taken or imprisoned, nor disseisined, nor out- lawed, nor banished, nor in any ways be damaged ; nor shall the king send him to prison by force, except by the judgment of his peers, and by the law of the land. Eight shall not be sold, delayed, nor denied. Merchants shall have safety to come and go, buy and sell, without any evil tolls, but by ancient and honest customs. No scutage or aid shall be imposed on the kingdom, except by the common council of the kingdom, unless it be to re- deem the king's body, to make his eldest son a knight, or to marry his eldest daughter, and that it be a reasonable aid ; and in like manner shall it be concerning the talliage and aids of the city of London and of other cities, which from this time shall have their liberties. That it shall be lawful for any one to go out of the kingdom and return again, saving his allegiance. That the king shall make justiciaries, sheriffs, and bailiffs, of such as know the law of the land, and are disposed duly to observe it. Such were the principal articles proposed, from which may be gathered what wej'C the principal grievances by which the country was oppressed. It may be ob- served, that as they were all as undoubtedly contrary to the law as it stood — but then it is to be added that much of it had not been declared. There was, however, another and a greater object to be attained even than the deqlaration of the law, and that was its sanction, protection, or execution. Charters had already been granted, which guaranteed many of the articles ; but the guarantees had been found nugatory. And here was th6 main diffi- culty. Hence there was a concluding article, providing that by way of security, a certain number of the barons should be appointed, who should see to the observance of the charter by the king, and, if he violated it, and he or his justiciary did not amend it, that they might make war upon him. It is manifest that as the barons were to judge of the breach of the charter, the effect of this article would be nothing leas than to transfer the supreme power to them. It would be a complete political revolution. As G-uizot observes, it simply authorized civil war. And this was the only result : the king was compelled, indeed, to accede to it, but then he took the first oppor- tunity to protect himself against the transfer of his power to the barons ; and a civil war ensued, which lasted the rest of his reign, and broke out again in the next, causing a vast amount of misery. When the charter was drawn up, there were, however, some important variances and departures from the articles. The stipulation as to talliage was omitted, and it was provided that for a common council of the realm for the assessment of scutages and aids, the peers and prelates should be summoned together with all the chief tenants of the crown. The clause as to taking assizes in the counties was altered, and so drawn as to show, in a remarkable manner, the close connection between the "assize," or judicial circuits of the king's judges, and the cAnty courts which they superseded. After providing that 472 HENRY II. TO JOHN. [CHAP. IV. tration of justice ; all which will be considered in the succeeding reign, when Magna Charta was confirmed, with some alterations, by Henry III. ; this of Henry HI. being the Great Charter, which is always referred to as the basis of our law and constitution; while the charter of John is only remembered as a monument of antiquity (a). justices should be sent into each county, to take the assizes, " if the assizes cannot be taken on the day of the county court, let as many knights and freeholders of those who were present at the county court remain behind as shall be sufficient to do justice." So the article as to amercement of freemen was added : "and none of the amercement shall be assessed, but by the oaths of lawful men of the vicinage." And an article was added, " earls and barons shall not be amerced but by their peers, and that only according to the degree of their delinquency." To the article that no town shall be obliged to repair bridges, etc., unless by ancient prescription, was added, "nor any person." The article as to the criminal jurisdiction of the sheriff ran simply thus : " No sheriff, coroner, etc., shall hold pleas of our crown," without any quali- fication. To the article as to wears, was added, " except upon the sea-coast." The important article as to personal liberty was altered so as to read thus : " No freeman shall be seized, etc., nor in any way destroyed, nor will we condemn him, nor commit him to prison, except by the legal judgment of his peers, or by the law of the land." And the next was rendered more full and emphatic : "To none will we sell, to none will we deny, to none will we delay, right or justice." Though the king was forced to sign, it only re- sulted in civil war ; and, on the accession of Henry III., another was granted, which omitted the clauses as to scutages and the assessing of aids, the lib- erty of entering and leaving the kingdom, and some other articles. In the next year, another charter was granted, which contained some important variations. It was provided that a widow should have dower of the third part of her husband's lands, except she were endowed with less. The assizes were to be taken only once a, year, and there was this important provision : "And those things which, at the coming of the justiciaries being sent to take the assizes, cannot be determined, shall be ended in some other place in their circuit ; and those things which, for the difficulty of some of the articles, cannot be determined by them, shall be determined by our jus- ticiaries of the bench, and then shall be ended No county court shall from henceforth be holden but from month to month ; and where a greater term hath been used it shall be greater. Neither shall any sheriff keep his turn in the hundred but twice in the year. Scutage shall be taken as in the time of Henry I. It shall not from henceforth be lawful for any one to give his lands to any religious house, and to take the same land again to hold of the same house ; nor shall it be lawful for any religious house to take the land of any, and to leave the same to him from whom they were received. Therefore, if any do give his land to any religious house, his gift shall be void, and the land shall accrue to the lord." Then there was a general sav- ing to all persons, ecclesiastical or lay, the liberties and free customs they had formerly had. (o) This is not quite so. On the contrary, as the charter of John was the original, it is of the greater importance in an historical point of view, and, at all events, it forms an important step or stage in our legal history ; and the comparison of its terms with the articles and with subsequent charters, affi)rd very interesting illustrations of the history of the subject, for which reason some account of them has been given. CHAP. IV.] kings' characters as legislators. 473 One very striking provision of John's charter, which is omitted in that of Henry III., deserves our notice. It is there declared that no scutage or aid shall be levied on the subject nisi per commune concilium regni nostri; except in the three cases in which a feudal lord was entitled to the assistance of his vassal ; namely, on marriage of his daughter; on making his son a knight, and to redeem his person from • captivity; a restriction that was declared by the charter to hold good, not only between the king and his tenants, but between every lord and his tenants. In order to assemble the commune concilium regni to assess such scutages and aids, the king engaged to summon all archbishops, bishops, abbots, earls, and greater barons, sigiUatim per liter as; et prceterea, says he, faciemus sum- moneri in generali per vicecomites, et ballivos nostras, omnes illos qui de nobis tenent in capite; a passage that seems, beyond all controversy, to point out the constituent members of the great council of the kingdom in those days. Several originals of this charter were executed by the king. It is said that one was deposited in every county or at least in every diocese. In pursuance of one of the ■provisions in the charter, twenty-five barons were elected as guardians of the liberties of the people, who were to see the contents of it properly executed ; but the troubles that soon followed, from the want of faith in the king, prevented this scheme of reformation. The king died in the next year, and left the kingdom in all the horrors of a civil war. We shall now consider the kings whose reigns fall within this period, in their character as legis- ^^^^^^^^ ^, lators. "We have before seen, that William ^we^ki^ngs aa the Conqueror, besides confirming the laws of the Confessor, made some himself, which effected no in- considerable alteration, by introducing tenures, and the trial by duel in criminal questions. Besides these express ordinances, he contrived all means of ingrafting the laws of Normandy upon the common law ; for this purpose, he appointed all his judges from among his Norman subjects, and made that language be taught in schools.^ By the constitution of his courts of justice, and every act of his ' Wilk., Leg. Sax., p. 289. 40* 474 HENRY II. TO JOHN. [CHAP. IV, administration, he did all in his power to change the jurisprudence of the country. "We hear nothing of Rufiis as a legislator ; nor are there any laws of Henry I. except his charter (a) ; but there is every reason to believe that the latter of these princes paid great regard to the improvemeTit of the law. He was him- self a man of learning, and had a disposition to quiet the minds of his subjects by a good administration ; the laws, therefore, which go under his name may be considered as a compilation, at least, made in his reign, and as an in- stance of his attention to the subject of legislation. The reign of Stephen was a period of continual war and disturbance, and of course gave little room for improve- ment in legal establishments. The introduction, however, of the books of canon and civil law, must have contributed to the great advances made in the time of his successor, Henry H. ; for, though there was always an extreme jeal- ousy in the practisers of the common law, with respect to those two systems, it went no further than to an exclusion of their authority as governing laws ; they were still culti- vated by them as branches of the same science, and had a great effect in polishing and improving our municipal cus- toms. The wise administration of Henry H. operating on the advantageous circumstances concurring in the latter end of his reign, when all things were reduced to peace, contributed more to advance our legal polity than all the preceding times from the Conquest put together. "Without recapitu- lating what has been before related, let any one compare the work of Glanville with the laws (or, as it might more properly be called, the treatise of law in the time) of Henry I., the great regularity in the order of proceeding, and the refinement with which notions of property are treiated, and he will see the superiority of the later reign in point of knowledge. It is probable, that the additiotis and amendments made in the law of this kingdom were by this prince transplanted into Normandy, and occasioned a still further improvement in the law of tenures ; as (a) This is not so. There are, aa already mentioned in the Leges Hearid Primi, many which are of his reign, though the whole is a compilation, and some have also been already alluded to as scattered in the Mirror of Justice. The Leges Henrici Primi, however, is rather a treatise of the laws, than a mere collection of them. CHAP. IV.] LAWS OF THE PERIOD. 475 lawyers were, by these communications, engaged in a kind of competition to enlarge and polish the same sub- ject of inquiry. The whole of our municipal law was improved to a high degree during the reign of Henry II. and aftbrded an ample foundation for the superstructure raised on it in the time of Richard and John, and more particularly in the reign of Henry III. It does not appear that Richard took any part himself in contributing to further the great designs of his father, in matters of municipal regulation, but left things to the course they had been put in by him. This prince, how- ever, stands very high in the history of maritime juris- prudence. Upon his return from the Holy Land, while he was in the Island of Oleron, on the coast of France, he compiled a body of maritime law. This was designed for the keeping of order, and the determination of con- troversies abroad ; and the wisdom with which it was framed, has been evinced by the general reception it has obtained in other nations.' King John did nothing mem- orable in the way of legislation in this kingdom ; though he has the praise of having first introduced the English laws into Ireland,^ where he instituted sheriffs and other officers to interpret and execute them. He likewise ap- pointed a grand justiciary to preside over the administra- tion of justice in that kingdom.* The monuments which remain of the jurisprudence of these times are not very humerous. They consist of some laws, charters, records, and law treatises. Of the laws of William the Conqueror, some are in Norman-French, and some in Latin, The first fifty capitula in Norman-French are what, In- liam'thecoL- gulphus says, he brought down to his abbey of '""°'^' Croyland, as those which the king had confirmed, and commanded to be observed throughout England.* Though the time when they were enacted is not mentioned, it is tolerably clear, that it was not long after Ingulphus went to London on the affairs of his monastery, in the sixteenth year of William's reign. These therefore were, probably, such alterations and additions as he chose to make in the laws of Edward, which had been allowed in the fourth ' Black., vol. iv., p. 423. ' Qucere, if not Henry II., vide Harris's Hibemia, part ii., p. 215, et sea. » TjiT., vol. ii., p. 809. * Ingulph. 476 HENRY II. TO JOHN. [CHAP. IV. year of his reign.' There follow Bome other laws of William in the form of a charter ; and as the first mostly concern the criminal code, these latter constitute some alterations in the civil. These are in Latin, and go from the fifty-first chapter to the sixty-seventh inclusive. There are also some others in the form of a charter, which, together with the preceding, make in all eighty-one capit- UM of laws of "William the Conqueror. There are no laws remaining of William E.ufus, if any were made ; nor of Henry I. except his charter. Those that usually go under the title of laws of this king, and are entered in the Red Book of the exchequer, seem to have heen reduced into that form by some person of learn- ing, as containing a sketch of the common law then in use ; a manner of entitling treatises not then uncommon : for there is now to be seen, in the Cottonian collection, a manuscript of Glanville which bears the title of Laics of Henry II? There is no evidence that these laws were enacted by the great council, or granted by any charter. They contain ninety-four capitula, and are to be found in the collection of Lambard and Wilkins. We have no remains of legislation in the time of Stephen. The laws of Henry II. are the Constitutions made at Clar- endon, anno 1164, and the statutes made at Northampton, anno 1176. The first fourteen of the Constitutions of Clarendon made several alterations in the civil and crimi- nal part of our laws ; the remaining sixteen concern ec- clesiastical aflfairs, and contain those points which were disputed between Henry and Becket, and between this kingdom and the see of Rome. Besides laws there remain some public acts of this reign, as articles of inquiry concerning the extortion and abuses of sheriff's and the assize of arms. During the reigns of Richard and John, there are no laws which can be prop- erly so called, but there are commissions and ordinances of a public nature respecting the administration of jus- tice. In the reign of the former there are some articles of the crown, with the forms of proceeding in those pleas and di- rections for preserving the laws of the forest? Besides the laws of these kings which have been men- tioned, there are many other provisions made in these ' Tyrr., vol. ii., p. 69. ' Claud., D. 2. ' Tyrr., vol. ii., p. 578. CHAP. IV.] THE STATUTES OP THE PERIOD. 477 reigns which may be found, arranged in the order of time in which they passed, in the Codex Legum Veterum, in- tended for publication by Spelman, and now annexed to the end of Wilkins' Anglo-Saxon Laws.^ The great monuments of this period are the charters. Under this title might indeed be reckoned those laws of William the Conqueror which we have just noticed to have passed in that form. But the charters, properly so called, and which have become so famous on account of the object they all had in view, namely, the removal and redress of certain grievances, are the following: The charter of Henry _I._, containing eighteen chapters; that of Stephen, containing thirteen chapters ; that of Henry II., containing only two chapters, and expressed in very general terms ; the Gapitula JBaronum, being those heads of grievances which were proposed by the barons to John to be redressed ; and the Magna Charta of that king, drawn up in pursuance of them; these are all to be found in the late Mr. Justice Blackstone's correct edition of the chart- ers,^ where that great ornament of English law has given a critical and very curious history of these valuable re- mains of antiquity. The laws, or assisce, as they were called, made at this early period, deserve a little further consid- ofthecwi eration. It has been before observed that our •^'^tntes. law is composed of the custom of the realm, or leges non seriptce, and the statutes, or kges scriptce. Our lawyers have made a distinction among statutes themselves ; they have distinguished between statutes made before the time of memory and those made since. The time of memory has been fixed in conformity with a provision made in the time of Edward I. for settling the limitation in a writ of right, which was by stat. 1 west., c. 39, fixed at the be- ginning of the reign of Richard. Though the limitation in a writ of right has been since altered, this period has been chosen as a distance of very high antiquity, at which has been fixed the time of memory, as it is called, so that everything before that period is said to have happened before the time of memory. Those statutes which were made before the time of memory, and have not since been repealed nor altered by ' See the Preface to Wilk., Ang.-Saxon Laws. " Black. Tracts, vol. ii. 478 HENRY ir. TO JOHN. [CHAP. IV. contrary usage, or subsequent acts of parliament, are con- sidered as a part of the leges non scriptce; being, as it were, incorporated into, and become a part of, our common law : and notwithstanding copies of them may be found, their provisions obtain at this day, not as acts of parliament, but by immemorial usage and custom ; of which kind is, no doubt, a great part of our common law.^ Laws were termed sometimes assisce, sometimes constitu- tiones. Though the most solemn and usual way of ordain- ing laws was to get the concurrence of the commune concilium regni, it should seem that in these times the king took upon himself to do many legislative acts which, when conformable with the established order of things, were readily acquiesced in, and became the law of the land. The very frame, indeed, of such laws as were sanctioned with all possible formalities, carried in them the strongest appearance of regal acts : if a law passed concilia haronum suorum, it was still rex consUtuit.^ Of the laws of "William the Conqueror, though in some parts they seem to have the authority of the great council, statuimus, volumus^ frcB- cifimus ; yet in others they speak in the person of the king only, hoc quoqy£ prcecipio, etprohibeo.^ The form of a charter, in which the king is considered as a person granting, was a very common way of making laws at this time; and this carries in it the strongest proof of the sentiments entertained in those ages concerning legisla- tion: nevertheless, it is to be remarked, that some of these charters, from the solemnities attending the execu- tion of them, might be regarded as having all the validity of laws ; as the charter of Eing John, to which the barons of the realm were parties. There were, however, several other charters which seem to have no authority but that of the sovereign. Indeed, several lawSj or assisce, even so low down as Henry 11. and the reigns of Richard and John, vouch no other sanction but rex constituit or rex preecipit, for everything they command or direct. There is no way of accounting for this extraordinary appearance of the old statutes, but by supposing the state of our constitution and laws to have been this : That the judicature of the realm being in the hands, and under the guidance of the king ana hi& justices, it remained 1 Hale Hist., 3, 4. ~~~ ' Vide Schmidt der Beutchm,. Gesehiehte,y ol. l, 582. ' Wilk., 217, 218. CHAP. IV.] STATUTES OP THE PERIOD. 479 with him to supply the defects that occasionally appeared in the course and order of proceeding ; which, being founded originally on custom and usage, was, in its nature, more susceptible of modification than any posi- tive institution, that could not be easily tampered with without a manifest discovery of the change. In an un- lettered age, it was convenient and beneficial that the king should exercise such a superintendence over the laws as to declare, explain, and direct, what his justices should do in particular cases ; such directions were very readily received as positive laws, always to be observed in future ; and, no doubt, numbers of such regulations were made of which we have at present no traces. While this supreme authority was exercised only in furtherance of justice, by declaring the law, or even altering it, in instances which did not much intrench upon the interest of the great men of the kingdom, it was sufiered to act at freedom. But no alteration in the law which affected the persons or property of the barons could be attempted with safety, without their concurrence in the making of it ; as, indeed, it could not always be executed without the assist- ance of their support. Thus it happened that when any important change was meditated by the king, a commune concilium was summoned, where the advice of the magnates was taken ; and then the law, if passed, was mentioned to be passed with their concurrence. On the other hand, had the nobles any point which they wanted to be authorized by the king's parliamentary concurrence, a commune con- cilium, was called, if the king could be prevailed on to call one ; and if thp matter was put into a law, the king here was mentioned to have commanded it, at the prayer and request of his, barons ; so that, one way or other, the king is mentioned in all laws as the creative power which gives life and effect to the whole. As laws made in the solemn form by a commune, concilium were upon the points of great importance, and often the subjects of violent contest, they were in the nature of concords or compacts between the parties interested, and were sometimes passed and executed with the ceremonies suitable to such a transaction. The Constitutions of Clar- endon (which, too, were called the ancient law of the king- dom, and therefore only to be declared and recognized as such) were passed in that way. Becket and all the bish- 480 HENRY II. TO JOHN. [CHAP. IV. ops took an oath to observe those laws ; and all, except Becket, signed, and put their seals to them. The laws were drawn in three parts. One counterpart, or authentic copy, was given to Becket, another was delivered to the Archbishop of York, a third was retained by the king himself, to be enrolled among the royal charters.* The Magna Charta of King John was executed with similar solemnity, and bore a similar appearance of a compact be- tween the king and his nobles. It was not uncommon that the people, as well as the makers, should be sworn to observe laws ; the assisce statutce, etjuratce, are mentioned by Bracton as an article of inquiry before the justices in eyre in the reign of Henry III. The rotuli annates, or great rolls of the pipe, in which the accounts of the revenue were stated, are the most ancient rolls now remaining, and the series of them is perfect from the first year of Henry II. Besides this there is still remaining in the same archives, a great or pipe roll, which has been supposed to belong to the_^A year of King Stq)hen,\)ut has been proved by Mr. Prynne and Mr. Madox^ to be entitled to an earlier date; indeed, to belong to some year of Henry I.; and, according to Mr. Prynne, to the eighteenth of that king. The plea rolls of the exchequer, now remaining, do not begin till the reign of Edward I. The oldest rules of the curia regis now extant begin with the first year of Eichard I., as do the assize rolls of the justices itinerant. Those of the hancum begin with the first year of King John, which is very near the first establishment of that court. There are charter rolls of the chancery, of the first year of King John, and close rolls, fine rolls, patent rolls^ liberate rolls, and Norman roUs, of the second, third, and sixth year of that king. All the before-mentioned rolls, except the great rolls of the pipe, are said to be now in the Tower of Lon- don, and are the earliest specimens of records that have been spared by the joint destruction of time, wilfulness, and neglect. The cruel havoc made by these enemies has occasionally excited a temporary attention to this impor- tant article, and measures have, in consequence, been pur- sued for preserving such muniments as remained. Such events, in the history of our records, will be mentioned in their proper places.* ' Litt. Hen. II., vol. iv., p. 26. ' Mad., Hist. Die., Epist. ' See Ayloffe'a Andenl Chartere, Introd. CHAP. IV.] DOMESDAY-BOOK. 481 Among the records and valuable remains of antiquity we must not forget the famous Domesday-Book, Dome»day- which, though not strictly a monument of a ^''*- legal nature, yet has this connection with the history of our law, that it is said to have been made with a view to the establishment of tenures. This book contains an ac- count of all the lands of England, except the four northern counties ; and describes particularly the quantity and value of them, with the names of their possessors. King Alfred is said to have composed a book of this kind about the year 900, of which this was in some measure a copy. This work was begun in 1080, and completed in six years. It has always been esteemed of the highest authority, in questions of tenure ; and is considered by antiquarians as the most ancient and most venerable record that now ex- ists in this or any other kingdom. The Black and Red Book of the Exchequer^ seem very little more connected with our ancient laws than the foregoing work, except that in both of them was found a transcript of a law treat- ise which will be mentioned presently. There are two treatises written in the reign of Henry II. which contribute greatly to illustrate the state and history of our law; the one is the Diahgus de Scaccario^ 1 Domesday-Book is a document belonging to the Eeceipt of the King's Exchequer, and is in the Chapter House at Westminster. It is in two vol- umes. For a more satisfactory account of this ancient record we must refer the reader to a small quarto pamphlet, entitled, "A short Account of some Parliadars concerning Domesday-Book, with, a View of its being published. By a Member of the Society of Antiquarians." This is a performance of Mr. Webb, and was read at the society in the year 1755. In this little essay is brought together in one view all that had been said by former historians and anti- quarians on the subject of Domesday. By the munificence of parliament, Domesday has been printed ; but we must regret that this laudable regard of the legislature towards our ancient records has not been seconded by the common attention which has been paid to every other publication since the earliest times of printing. The reader will be surprised when he is told that this book has no prefatory discourse, or index, not even a title-page, or the name of the printer; it is a mere fac- simile, constituting a very large folio, full of abbreviations and signs, that cannot be understood without a key, and much previous information. ' Liber Ruber and I/iber Niger Scaccarii are two miscellaneous collections of charters, treatises, conventions, the number of hides of land in several counties, escuage, and the like ; many of which, as well as the Dialogus de Scaccario, are to be found in both those books. The Liber Niger has been printed by Hearne, together with some other things, in two volumes 8vo ;'of which the Liber Niger fills about 400 pages. He entitles it, "Exemplar vetu- sli codicis MS. [nigra velamine cooperti) in Scaccario," etc. The collector of the contents of the Liber Ruber is supposed by Mr. Madox to have been 41 2F 482 HENKT II. TO JOHIT. [CHAP. IV. before alluded to ; the other is the Tractaius de Legibus An- glice, by Glanville. The Dialogus de Sbflcmno, has generally passed as the work of Gervase of Tilbury, but Mr. Madox thinks it was written by Richard Fitz-Kigel, bishop of London, who succeeded his father in the office of treasurer in the reign of Richard I., and was therefore well qualified for su(3i an undertaking. This book treats, in the way of dialogue, upon the whole establishment of the exchequer, as a court and an office of revenue, giving an exact and satisfactory account of the officers and their duty, with all matters, concerning that court, during its highest grandeur, in the reign of Henry II. This is done in a style somewhat superior to the law latinity of those days. Glanville's book is of a very different sort ; this is written without any of the freedom or ele- gance discoverable in the other, and has all the formality and air of a professional work. It is en- titled Traetatus de Legibus et Consuetudinibus Begni Anglim, but, notwithstanding this general title, it is confined to such matters only as were the objects of jurisdiction in the curia regis. Having stated this as the limit of his ' plan, the author very rarely travels out of it. Glanville'^ treatise consists of fourteen books ; the first two of which treat of a writ of right, when commenced originally in the curia regis, and carry the reader through a,ll the stages of it, from the summons to the appearance, counting, duel, or assize, judgment and execution ; in the third, he speaks of vouching to warranty, which, being added, to the two former books, composes a very clear account of the pro- ceeding in a writ of right for recovery of land. The fourth book is upon rights of advowson, and the legal remedies relating thereto. The fifth is upon actions to vindicate a man's freedom. The sixth, upon dower. The seventh contains very little concerning actions, but Alexander de Swereford, archdeacon of Shrewsbury, and an officer in the Ex- chequer in the latter end of Henry II. It seeraa as if the Dialogiui de Scaecario had been considered as the whole of the Liber Niger, till the publication of Hearne ; and since Mr. Madox has pronounced Bichard Fitz-Nigel to be the author of the Dialogue, and not Gervase of "Tilbury, the whole of the Liber Niger has been given to Gervase, though it does not appear for what reason. The DiaXogus de Scaccario is pub- lished by Mr. Madox, at the end of his History of the Exchequer. See Nicholson's Eng. Hist.,Tp. 173 ; Hearne's Liber Niger, p. 17. CHAP. IV.] LEGAL WRITEES— GLANVILLE. 483 considers the subjects of alienaltion, descent, succession, and testaments. The eighth is upon final concords ; the ninth, upon homage, relief, and services; the tenth, upon debts and matters of contract ; and the eleventh. Upon at- torneys. Having thus disposed of actions commenced originally in the curia regis, in his twelfth book he treats df writs of ti^ht brought in the lord's court, aud the man- ner of removing them from thence to the county court and curia regis, which leads him to mention some other writs determinable before the sheriff. In his thirteenth book he speaks of assizes and disseisins. The last book is wholly upon pleas of the crown. The subject ot this treatise is all along illustrated with the forms of writs, a species of learfiing whidh was then new, was probably brought into order and consistency by Glanville himself, and first exhibited in an intelligible way and with system in this book. The method and style of this work seem very well adapted to the subject; the former opens the matter of it in a natural and perspicuous order, while the latter de- livers it with sufilcient simplicity and clearness. The latinity of it, however, may not satisfy every taste ; the classic ear revolts at its ruggedness, and the cursory reader is perpetually impeded by a new and harsh phrase- ology. But the language was not adopted without de- sign ; the author's own account of it is this : 8tylo imlgari, et verbis curialibus utens, ex industria, ad notitiam compardn- dam eis, qui hujusmodi vvlgaritate minus sunt exercitati} The author seems not to be disappointed in his design even alt this distance of time, for a person who reads the book through cannot fail of finding in one place an explana- tion of some difficulty he may have met with in another ; the recurrence of the same words and modes of speaking makes Glaliville his own interpretet. When the style of Glanville is mastered in this way, it will appear that ttany obscure sentences have been rendered such through too great an afix:iety to express the author's meaning ; and perhaps it will not be an affectation of discernment to say that the plain English which it is thus attempted to con- vey may be seen through the awkward dress which this latinist has spread over it. ' Prolog, ad finem. 484 HENRY II. TO JOHN. [CHAP. IV. If Glanville confines himself to a part only of our law, he treats that part with such conciseness, and sometimes in so desultory a way, that his book is to be looked upon rather as a compendium than a finished tract ; notwith- standing which it must be considered as a venerable monument of the infant state of our laws, and, as such, will always find reception with the juridical historian when thrown aside by the practising lawyer. It has been a general persuasion that the writer of this "book was Sanulphus de GfhnviM, who was great justiciary to Henry II. This great officer, though at the head of the law, united in himself a political as well as a judicial character, and it seems that Glanville was likewise a military man, for he led the king's armieg more than once, and was the commander who took the king of Scots prisoner. It might therefore be doubted whether a per- son of this description was likely to be the author of a law treatise containing a detail of the practice of courts in conducting suits. There was a Banulphus de Oranvilld who was a justice itinerant,' and who, it is said, was a justice in the king's court towards the close of this reign. If the author was really of this name, it may be doubted whether he was not the latter of these two persons. Per- haps, after all, this work might be written by neither, but may be ascribed to the great justiciary for no other reason than because he presided over the law at the time it was written, and might be the promoter of the work and patron to its author. Whatever doubt there may be concerning the author, there is no question but it was written in the reign of Henry II. — there are many inter- nal marks to prove it to be of that period, and from one passage it seems to have been written^ after the thirty- third year of that king. If Glanville is the earliest writer in our law from whom any clear and coherent ac- count of it is to be gotten, this book is also said to be the first performance that has anything like the appearance of a treatise on the subject of jurisprudence since the dis- solution of the Roman empire.' 1 Vide Leg. Ang.-Sax._ _ 2 Glany., lib. 8, c. 2, 3. ' Barr. Ant. Stat. This is not true, if the heeretum is to be considered as a treatise ; for Henry II. came to the crown in 1154, and Glanville, being written after the thirty-third year of his reign, could not appear till 1187. Now the Decreiam was published by Gratian in 1149. CHAP. IV.] LEGAL WRITERS — GLANVILLE. 485 When tbis book is considered witb a view to the prog- ress of our law, it makes a remarkable event in the his- tory of the new jurisprudence. Notwithstanding the attempts of William the Conqueror to introduce the Not- man laws, and the tendency in the superior courts to en- courage every innovation of that kind, not much had yet been done of a public and authoritative nature to confirm that law in opposition to the Saxon customs. The laws of William, excepting those concerning tenures and the duel, were in the spirit and style of the Anglo-Saxon laws ; the same may be said of those which go under the name of Henry I. It is observed that the Constitutions of Clarendon, made about the eleventh year of Henry II., are in the scope of them, as well as the style and lan- guage, more entirely Norman than any laws or public acts from the Conquest down to that time.^ It was not,' then, till the reign of this prince that the Norman law was completely fixed here ; and when it was firmly estab- lished by the practice of this long reign, and had received the improvements made by Henry, then was this short tract drawn up for public use. It is probable this was done at the king's command, in order to perpetuate the improvement he himself had made, and to effect a more general uniformity of law and practice through the king- dom. The work of Glanville, compared with the Anglo- Saxon laws, is like the code of another nation ; there is not the least feature of resemblance between them. While the Norman law was establishing itself here, that nation gradually received an improvement of their own polity from us. The two nations had so incorpo- rated themselves, that the government of both was carried upon the like principle, and the laws of each were recipro- cally communicated ; a consequence not at all unnatural while both people were governed by one prince. Much more had been done of late in this country than in Nor- mandy for the promotion of legal science. It was not till after the publication of Glanville, and even of Bracton and Britton, that the Normans had any treatise upon their law. One was at length produced in the Grand Coustumier of Normandy ;^ a work so like an English per- ' Mad., Bich., 123. ' The Cbitstemier of Normandy, according to Basnage, could not have been composed till the reign of Philip the Hardy, who came to thg throne in 1272, 41* 486 HENRY II. TO JOHN. [CHAP. IV. formance, that should there remain any doubt of its being formed upon our models, there can be none of the great similarity between the laws of the two nations at this time. There are some ancient treatises and statutes in the law of Scotland which bear a still nearer resemblance to our English law. The close agreement between Glanville and the Regiam Majestatem leaves no room to doubt that one is copied from the other ; though the merit of originality between them has occasioned some discussion. An essay has been written expressly on this subject, in which it is said to be clearly proved, by the internal evidence of the two books, that Glanville is the original. It is observed by that writer, that Glanville is regular, methodical, and consistent throughout ; whereas the Regiam Majestatem goes out of Glanville's method for no other assignable reason than to disguise the matter, and is thereby ren- dered confused, unsystematical, and in many places con- tradictory.' To this observation upon the method of the Regiam Majestatem it may be added, that on a comparison of the account given of things in that and in Glanville, it plainly appears that the Scotch author is more clear, explicit, and defined ; and that he writes very often with a view to explain the other, in the same manner in which the writer of our Fleta explains his predecessor Bracton. This is remarkable in numberless instances all through the book, and is perhaps as decisive a mark of a copy as can be. The other Scotch laws, which follow the Regiam Majestatem in Skene's collection, contribute greatly to confirm the suspicion. These, as they are of a later date than several English statutes which they resemble, must be admitted to be copied from them ; and so closely are the originals followed that the very words of them are retained. This is particularly remarkable of the reign of Robert II., in which is the statute quia emptores, and others, plainly copied from our laws, without any attempt and reigned fifteen years ; and our Edward I. came to the throne in 1272. Upon this statement of dates, it is possible that it might be written after the time of Britton. The language seems to have a more modern form than that of Britton ; though this must be attributed to some other cause than such a small space of time as could by any possibility intervene between the writing of these two books — CEkvres de Henri Bamage, Avertiaaemeni. ' The essay here alluded to was written by Mr. Davidson, of Edinburgh. Of this tract I have not been able to get a sight, and am obliged to the pre&ce to the new editjon of Glanville for this account of it. CHAP. IV.] LEGAL TREATISES. 487 to conceal the imitation. These laws, at least, can im- pose upon no one ; and when viewed with the Regiam, Majestatem at their head, and compared with Glanville and the English statute-book, they seem to declare very intelligibly to the world that this piece of Scotch juris- prudence is borrowed from ours.* The Regiam Majestatem is so called, because the volume opens with those words: the prologue to Glanville begins Regiam Potestatem. This whim of imitation is discoverable among our own writers. Fleta begins his Prooemium in the same way, and goes on, for several lines, copying word for word from Glanville. Indeed, the leading idea in all is taken from the Prooemium to Justinian's Bistitutes. The law-language of these times was Latin or French, but more commonly the former. The only laws of this time now subsisting in Norman-French are those which compose the first collection of William the Conqueror. All the other laws from that time to the time of Edward I. are in Latin. There are some few charters of the first three Norman kings which are either in Anglo-Saxon or in Latin, with an English version ; of which sort there are several now remaining in the Cottonian and other collections.^ "Without doubt the Norman laws of William were pro- claimed in the county court in Anglo-Saxon, for the in- formation of the English, who still' continued to conduct business there in their own language, as they did in all ' It seems unnecessary to contend for the originality of the Begiam Majes- tatem, while a doubt of much more importance remains unsettled ; that is, whether that treatise, as well as the others in the publication of Skene are now, or ever were, any part of the law of Scotland. Upon this point, some of the most eminent Scotch lawyers are divided. We find Craig and Lord Stair very explicit in their declarations against these laws, as a fabrication and palpable imposition ; on the other hand, Skene the editor is followed, among others, by Erskine, Lord Kames, and Dalrymple, who continually refer to them, as comprising the genuine law of Scotland in former times. That a large volume of laws and law treatises should be pronounced by persons of professional learning to be part of their law and customs, and should be as positively rejected by others, is a very singular controversy in the juridical history of a country : nor is it less singular that this volume should bear such a close similitude with certain laws of a neighboring state, whose legislature had no power to give it sanction and authority. While a fact of this sort continues unascertained, the history of the law of Scotland must be involved in great obscurity. See Craigii Inst. Feud., lib. 1, tit. 8, sect. 7. Stair's Jmt., fo. 3, tit. 4, sect. 27. Skene's Preface to the Regiam Majestatem. Erskine's JVim. 'K.am^s' Historical Law Tracts; and Dalrym- ple's Feudal Property, passim, ^ Tyrrell, ii., 101. 488 HENRY II. TO JOHN. [CHAP. IV. inferior courts ; but in the curia regis and ad scaccarium William obliged them to plead in the Worman tongue, as most consistent with the law there dispensed, and that which was best understood by the justices. However, notwithstanding this language was used in pleading and argument, all proceedings there, when thrown into a record, were enrolled in a more durable language, the Latin. This was the language in which all writs, laws, and charters, whether public or private, were drawn, so that the Norman tongue was of no extensive use here ; nor was it till the time of Edward, I. that French became of common use in the laws, parliamentary records, and law-books ; and this was not the provincial dialect of If ormandy, but the language of Paris. It is believed that few were learned in the laws before the Conquest, except the clergy. The warlike condition Miscellaneous 111 whlch that pcoplc llvcd, and the extreme facta. ignorance which universally prevailed among the laity, left very little ability for the management of civil affairs to any but the clergy, who possessed the only learning of the times ; in the reign therefore of the Con- queror, in the great cause between Lanfranc and Odo,bishop of Bayeux, it was Agelric, bishop of Chichester, to whom they looked for direction. He was brought, says an ancient writer,^ in a chariot, to instruct them in the ancient laws of the kingdom, ut legum ierrce sapientissimus. It was the same long after the iformans settled here. In the time of Rufus, one Alfwin, rector of Sutton, and several monks of Abingdon, were persons so famous for their knowledge in the laws, that they were universally consulted, and their judgment frequently submitted to by pei'sons resorting thither from all parts.^ Another cler- gyman, named Ranulph, in the same reign, obtained the character of invicfus causidicus. So generally had the clergy taken to the practice of the law at that time, that a con- , temporary writer (a) says, nullus elericus nisi causidicus. The (a) William of Malmesbury. The clergy supplying the lawyers, they would naturally have recourse to the law with which they were best ac- quainted, the civil law, and the canon law, which as our author elsewhere observes, was founded thereupon. In other words, they would have recourse to the Roman law, modified, in matters ecclesiastical, by the canon law, the Boman church and its law being established and. recognized by the state. Hence the recognition of that law in the Laws of the Conguerar, and in the ' Textus Roffi ' Dug. Orig., p. 21. CHAP. IV.] MISCELLANEOUS FACTS. 489 clergy seem to have been the principal practisers of the law, and were the persons who mostly filled the bench of justice. Leges Henrici Primi, which formed the basis of the great treatises of Glan- ville and of Bracton, the foundations of our common law. Thus, therefore, probability, documentary evidence, and the positive facts of history, combine to show that the origin of our law is to be traced back to the Roman law, partly through the traditions and institutions established in this country during the period of the Roman occupation, and partly by reason of the restitution or revival of Roman law, through the medium of the earliest professors of law, the clergy. END OF VOL. I.