Front Page Titles (by Subject) CHAPTER VI.: THE KING, IN HIS RELATION TO EARLY CIVIL JUSTICE. - Dissertations on Early Law and Custom
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CHAPTER VI.: THE KING, IN HIS RELATION TO EARLY CIVIL JUSTICE. - Sir Henry Sumner Maine, Dissertations on Early Law and Custom 
Dissertations on Early Law and Custom, chiefly selected from Lectures delivered at Oxford (London: John Murray, 1883).
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THE KING, IN HIS RELATION TO EARLY CIVIL JUSTICE.
Whenever in the records of very ancient societies, belonging to races with which we have some affinity, we come upon a personage resembling him whom we call the King, he is almost always associated with the administration of justice. The King is often much more than a judge. He is all but invariably a general or military chief. He is constantly a priest and chief priest. But, whatever else he may be, he seldom fails to be a judge, though his relation to justice may not be exactly that with which we are familiar.
The examples of this association which I will give must be few among many. The monuments of jurisprudence which lay claim to the highest antiquity are those of the Hindus, one of which has long been vaguely known to Europeans under the name of the Code of Manu. Many similar collections of ancient Indian legal rules have of late been discovered, and some have been translated, but it is to be observed they none of them deserve to be called Codes. They are in fact books of mixed law and theology, the manuals in use with the Indian Brahmans in ancient law-schools, in which their subjects were no doubt at first taught orally and committed to memory and were only embodied in writing in comparatively recent times. They are further, as we have them, the result of a sort of literary evolution. The original treatises, or rather bodies of learning, dealt with all things divine and human (regarded no doubt from a purely theological point of view), but the various portions of this learning became gradually specialised, till at last treatises dealing with law mainly, or law entangled with religious ritual, were finally separated from the rest. In these ancient law-books, in so far as they are law-books, the authority of a King is assumed. He sits on the throne of justice. He has the book of the law before him. He has learned Brahmans for assessors. Some part of these ideas, like much else of immemorial antiquity, survive in India. A gentleman in a high official position in India has a native friend who has devoted his life to preparing a new book of Manu. He does not, however, expect or care that it should be put in force by any agency so ignoble as a British Indian legislature, deriving its powers from an Act of Parliament not a century old. He waits till there arises a King in India who will serve God and take the law from the new Manu when he sits in his court of justice.
If we pass from the extreme East to the extreme West, from the easterly to the westerly wing of the Indo-European or Aryan race, from India to Ireland, we find this same association. That most interesting system, the ancient Irish law, is known as the Brehon Law, because it is said to have been declared by the Brehons, who are in fact as nearly as possible the Brahmans of India, with many of their characteristics altered, and indeed their whole sacerdotal authority abstracted, by the influence of Christianity. Here, too, we find that the great Brehons are Kings or King’s sons; and we come upon the significant proposition that, though a King is necessarily a judge, it is lawful for him to have a professional lawyer for an assessor. There are many most striking resemblances, often on the most unexpected points, between ancient Indian and ancient Irish law; and this hint as to the proper constitution of a Court of Justice is one of them.
The ancient Hindu lawyers claimed a descent from supernatural personages only second to the gods. The ancient Irish lawyers pretended that the first of their order was a pupil of Moses in the Desert. But, in point of fact, the order of ideas exhibited by both systems is relatively more modern than that which we can trace in the poems attributed to Homer. Here we can perceive the undeveloped form of the Indian and Irish conception of a Court. The Homeric King is chiefly busy with fighting. But he is also a judge, and it is to be observed that he has no assessors. His sentences come directly into his mind by divine dictation from on high. These sentences, or θέμιστες—which is the same word with our Teutonic word ‘dooms’—are doubtless drawn from pre-existing custom or usage, but the notion is that they are conceived by the King spontaneously or through divine prompting. It is plainly a later development of the same view when the prompting comes from a learned lawyer, or from an authoritative law-book.
I pause on one more instance of the association familiar to all of us. The Judges of the Hebrews represent an old form of kingship. The exploits told of them in the Scriptural Book of Judges point to them chiefly as heroes raised up at moments of national disaster; but, independently of the etymology of the name by which they are designated, they were clearly exponents of law and administrators of justice. Deborah, the prophetess, who is counted among them, judged Israel. She dwelt under the palm-tree of Deborah in Mount Ephraim, and all Israel came up to her for judgment. Eli, the last but one of the Judges, had judged Israel forty years, and Samuel the prophet, the last of them, expressly claims credit in his old age for the purity of his judgments. On the other hand, the decline of the system is shown by the fact that the sons of Eli are expressly charged with abuse of authority, and those of Samuel with corruption. In the more mature kingship which presently succeeded, the military functions of the King are most prominent in Saul and David, but the judicial authority again manifests itself in Solomon.
There is one portion of these ancient ideas about justice on which it is necessary to dwell for a moment on account of the great importance which they prove to have had for mankind. It would seem that, in these early times, however much the administration of justice might be organised, even though a system of law-courts might exist competing with the King’s justice and quite independent of him, even though all or some part of the law might have been set forth in writing, yet there was always supposed to be what may be called a supplementary or residuary jurisdiction in the King. The law, however administered, was never believed to be so perfect but that the royal authority was always required to eke out and correct it. Just as, according to the most modern ideas about jurisprudence, every body of law is thought certain to become an instrument of gross tyranny unless there is somewhere a legislature to amend it, so even that servility to immemorial usage which is characteristic of very ancient times did not exclude the correction of usage by the authority of the King. We owe to this belief in a supplementary judicial authority residing in the King some branches of our own jurisprudence which are in great credit, e.g. the so-called Equity of our Court of Chancery; and others of much less repute may be traced to it, such as the old Court of Star Chamber1 which was established by a belated and therefore unpopular exercise of this same residuary royal power. But a large part of mankind is indebted for much more than this to these ancient notions. Practically at this moment two systems of law divide between them the whole civilised world. One is the English law, followed by nearly all the English-speaking peoples—by ourselves, by all the colonies actually planted by Englishmen, by all the Northern and Central States of the American Union, and to a greater extent every day by the millions of India. The other is the Roman law, whether it take the form, as in Germany, of what we call a common law, or whether it appears under a slight disguise in the French Civil Code, and the numerous codes descended from it. But the real indigenous law of ancient Rome deserved no such fortune as this. It was a stiff system of technical and ceremonious law, belonging to a common and easily recognisable type. But it underwent a transformation through this very residuary or supplementary royal authority of which I have been speaking. The judicial powers of those dimly seen and half fabulous personages, the Kings of Rome, descended, at the establishment of the Roman Republic, to the magistrate known as the Prætor; and the old belief in a divine or semi-divine inspiration, dictating judicial rulings to the ancient King, gradually converted itself into the assumption, first of a religious and then of a philosophical theory, guiding the more modern Prætor. Auguste Comte might have appealed to the change as illustrating the transformation of a theological into a metaphysical conception. What has descended to so large a part of the modern world is not the coarse Roman law, but the Roman law distilled through the jurisdiction of the Prætor, and by him gradually bent into supposed accordance with the law of Nature. The origin, therefore, of a body of law, regarded by some of the most civilised societies of mankind as the perfection of reason, and spoken of by continental lawyers with what Englishmen at all events regard as extravagance of praise, is to be sought in this most ancient belief that law, custom, and judicature were all necessarily and naturally subject to correction by the supreme authority of the King.
I wish, however, to speak less of early Kings in general than of the early Teutonic or Germanic King and of his relation to civil justice. Our own Queen Victoria has in her veins the blood of Cerdic of Wessex, the fierce Teutonic chief out of whose dignity English kingship grew; and in one sense she is the most perfect representative of Teutonic royalty, as the English institutions have never been so much broken as the institutions of other Germanic societies by the overwhelming disturbance caused elsewhere by Roman law and Roman legal ideas.
But, though this is true, there is no community of which the early legal history is more obscure than ours, much as English and German learning has lately done for it. Fortunately, for an account of the early relations of the Germanic King to justice, we can turn to a monument of ancient Teutonic law constructed at a time when piratical chiefs from Jutland and Friesland were beginning to work the overthrow of the Roman provincial administration in our island. This is the Salic Law, the oldest of the Teutonic codes, the oldest portrait of Germanic institutions drawn by a German. Scholars are now pretty much agreed that it belongs to the fifth century after Christ, and that its preparation was prompted by the great codification of Roman law effected by the Emperor Theodosius II. Nothing is more singular than the delusion, so long and so obstinately entertained in Europe, that the Salic Law either was a system of rules, or at any rate comprised a set of rules, regulating the succession to thrones and crowns. In reality it deals with much humbler matters. It is concerned with the daily life of the men who belonged to the confederation of German tribes called (it is not altogether known why) the Salian Franks. It deals with thefts and assaults, with cattle, with swine, and with bees, and above all with the solemn and intricate procedure which every man must follow who would punish a wrong or enforce a right. It might be best described as a manual of law and legal procedure for the use or guidance of the free judges in that ancient Teutonic Court, the Court of the Hundred. It is written in phraseology which probably reflects accurately the way in which the Germans of the fifth century spoke Latin. Some of the manuscripts of it contain interlineations in a very old Teutonic dialect which, under the name of the Malberg Gloss, still excite the strongest interest among philologists. With Kings it has nothing whatever to do, except so far as the King is concerned with the administration of justice. The famous passage which was once thought to justify bloody European wars, which caused the war of a hundred years between England and France, and which is still the basis of the theory of politics called Legitimism, merely gives the rule of inheritance to landed property.2
This Court of the Hundred, which administered the Salic law to the Salian Franks, was the most ancient of the organised Courts among the Germanic races. There were probably ‘natural’ prehistoric Courts which were older, such as the assemblies (or moots) of the various village communities, but the Hundred Court was the result of a deliberate attempt to furnish an alternative to violence and bloodshed, and it seems to have been practically universal among the Germanic tribes. It has bequeathed to this country a territorial description, the Hundred, or (as it is called in the north) the Wapentake; and Mr. Gomme, in his interesting volume on ‘Primitive Folk Moots,’ has traced many of the sites at which its open-air meetings were held. They seem to be particularly abundant in Norfolk and in the east of England. The Hundred Court, however, was not an institution which had great vitality in our country, since part of its powers seems at an early date to have gone over to the larger judicial body called the County or Shire Court, while another part went back again to the village communities under their newer name of Manors.
As the Hundred Court appears in the Salic Law, it looks at first sight like an entirely popular tribunal with which royal authority has nothing to do. The judges are all the freemen living within the limits of the Hundred. The President is elective and bears the name of the Thunginus or Thingman. I will say no more of its general characteristics than that it is intensely technical, and that it supplies in itself sufficient proof that legal technicality is a disease not of the old age, but of the infancy of societies. But it has one remarkable peculiarity, that in a large class of cases which come before it, those based on contract or ownership, it does not enforce its own decisions. It may be suspected that, at a still earlier date, this singular inability to discharge what seems to us the most distinctive function of a judicial tribunal extended to all the decrees of the Hundred Court, whatever might be their object. The explanation seems to be that the most ancient Courts deliberately established by mankind were intended to be what we should call Courts of Arbitration. Their great function was to give hot blood time to cool, to prevent men from redressing their own wrongs, and to take into their own hands and regulate the method of redress. The earliest penalty for disobedience to the Court was probably outlawry. The man who would not abide by its sentence went out of the law. If he were killed, his kinsmen were forbidden, or were deterred by all the force of primitive opinion, from taking that vengeance which otherwise would have been their duty and their right.
But at this very point the Salic Law puts us on the trace of one of the greatest services which royal authority has rendered to civil justice. At the first glance, the King appears to have nothing to do with the Court of the Hundred. He is merely represented in it by a class of officers who collect his share of the fines imposed—a very important part of the royal revenues. We find, however, that if the unsuccessful litigant in the Court had agreed to abide by the sentence, the King’s officer would enforce it; and even in the absence of such an agreement, if the litigant who had been successful went to the King in person and petitioned him, the King would do him justice in virtue of his ultimate residuary authority. These are the first feeble and uncertain steps of royal authority towards the ascendency which in all Teutonic countries it has gained over the primitive popular justice. It has dwarfed and finally absorbed this justice, but then it has conferred on it the faculty without which we can scarcely conceive it existing. The King has nerved its arm to strike, and there seems no doubt that the process by which the whole force of the State is employed to enforce the commands of the judge is the result of the contact, ever growing in closeness, between the royal authority and the popular court. We possess in the Capitularies of the Frankish Kings some evidence of the further course of these relations between the King and the Court. After a while, the popular president of the Hundred Court, the Thingman, disappears, and his place is taken by the Graf or Count, the deputy of the King. Royal authority is therefore constantly growing, and, as a consequence, we find that the Count will use the King’s power to enforce all decrees of the tribunal, without reference to their nature, without previous agreement, and without appeal to the King’s supreme equity. The presidency of the royal officer over the Court was the beginning of a separate set of changes by which the character of the old popular justice was profoundly changed. Everywhere in the Teutonic countries we find deputies of the King exercising authority in the ancient courts, insisting that justice be administered in the King’s name, and finally administering a simpler justice of their own amid the ruins of the ancient judicial structures fallen everywhere into disrepute and decay. Such being the well-established consequences of the contact between the Teutonic King and the Teutonic Popular Courts, it seems worth while inquiring what were the weaknesses of those Courts, what seeds of dissolution they contained, and what there was in the King, even apart from this power, which made him their natural successor.
Two forms of authority, the King and the Popular Assembly, are found side by side in a great number of the societies of mankind when they first show themselves on the threshold of civilisation. The Popular Assembly and the Popular Court of Justice are in principle the same institution; they are gatherings of the freemen of the community for different public purposes. The King as political chief is contrasted with the Popular Assembly; as military leader he is contrasted with the host, with the general body of fighting men; with the Popular Court of Justice he is contrasted as judge, as depositary of the special judicial authority which is my subject. I do not enter upon questions, now much disputed, whether the King or the Popular Assembly is the older of the two, or whether they have co-existed from all time, and I will merely observe that the tendency of recent research is to assign the higher antiquity to the assembly of tribesmen. Taking it, however, as a fact that the two authorities very generally appear together, we may remark a further law of progress which they seem to follow. In such communities as those of which Athens and Rome are the great examples—in that walled city which was the cradle of a large part of modern ideas—the organs of freedom, as we should say, continually increase in importance. The assemblies monopolise power. The King either disappears or becomes a mere shadow. But in communities spread over large spaces of land, and without walled towns, it is the King who grows, and all popular institutions tend to fall into decrepitude. Are there, then, any reasons for this growth and decay, so far as regards the particular institutions with which we are concerned—judicial institutions? One source of weakness may, I think, be traced in the ancient popular institutions, both judicial and political. This was the great number of men, and the large portion of every man’s time, which they required for their efficient working. Even in communities confined by the surrounding wall to moderate dimensions, we can see the difficulty of bringing up the people to the discharge of their public duties. Scholars will remember the vermilion-stained rope which was dragged along the streets of Athens to force the citizens to the place of assembly, and which exposed the laggard marked by it to a fine; and their recollection will also dwell on the famous fee, the three obols, which was paid for attendance there and at the popular tribunal. Mr. Freeman, speaking of the later revival of Hellenic freedom in the collection of States united by the Achæan League (‘History of Federal Government,’ i. 266), has noticed the effect which the burden of attendance on political duties had in throwing political privilege into a few hands and thus in converting democracies into aristocracies. Much of ancient freedom was, in fact, lost through the vastness of the payment in person which it demanded. In communities of the other class, those spread in villages over a great extent of country, the burdensomeness of public duties must always have been considerable, and must have become very great when their size increased through the absorption of many tribes in the same nation. Some evidence of this may be discerned in the importance which old Germanic law assigns to the sunis or essoin, a word which once puzzled English lawyers greatly, but which is of old German origin, and really signifies the ground of legal excuse which a man may make for failing to discharge any duty in a popular Teutonic tribunal. But the difficulty is easily understood in another way. Although its pedigree is much interrupted, our English jury is a survival of the old popular justice; yet nobody even now, I suppose, receives a summons to attend a jury with perfect complacency. What, however, must the necessity for attendance have been when the place of meeting was at the other side of the hundred, or perhaps of the county, when there were no roads in England except the Roman roads, when the eastern counties were little better than a fen, and when the Wealden of the south were really forests? Yet there is some ground for thinking that the burden of attendance was lighter in England than elsewhere. On the Continent of Europe, so long as the Hundred Court had a genuine existence, and up to the time when it was converted into a limited Committee of Experts, we cannot trace any relaxation of the severe rule that every man of full age and free must be present. But, even in this particular, the beginnings of that representative system which has done so much to continue the English form of Teutonic liberty in life can be perceived specially characterising this country. From very early times the English Hundred and Shire Courts were attended not by every freeman, but by the Lords of Manors, and by the Reeve and four men representing each village or parish. Nevertheless there can be little doubt that even in England the duty of attendance was felt to be very burdensome. In the Confirmation of Magna Charta by Henry III. in 1217, there is a provision that the County Court shall not meet more than once a month; and Mr. Stubbs (‘Const. Hist.’ i. 605) suggests the explanation that the sheriffs had abused their power of summoning special meetings of the court and fining absentees. He adds that it was the direct interest of the sheriffs to multiply the occasions of summons.
This multitudinousness, if I may so describe it, of all Courts of Justice except those of the King, lasted far down into the feudal period. Feudalism attained its greatest completeness in France, and French historians are astonished at the number of persons who were required for the organisation of a feudal Court of Justice. The principle is expressed in a phrase familiar to us, that every man must be tried by his peers, which originally meant that his judges were the entire body of persons standing in the same degree of relation with himself to some superior above. If a great vassal of the Crown had to be tried for treason or felony, all the great vassals of the French Kings must assemble from all parts of the territories of which the French King was the overlord; and it was precisely such a Court which deprived our King John of the fairest provinces of France. If, on the other hand, a villein had to be tried, his peers were the villeins of the same seigneurie. The inevitable result was that the French feudal Courts dwindled into bodies which confided all active duties to a small committee of experts, and as these experts were for the most part devotees of the Roman law, they exercised memorable influence in diffusing notions of the absolute power of the King, and specially of his rightful authority over justice. Quod principi placuit, legis habet vigorem—this was the central principle of the developed Roman jurisprudence.
It may thus be believed that the ancient Germanic Popular Courts, and probably the Popular Courts of many other societies, fell into disfavour or decay, as communities of men grew larger by tribal intermixture, through the multitude of judges they included, and through the great difficulty of discharging judicial functions. The freeman who ought to have attended preferred to stay at home, sending his excuse or essoin for the neglect, and submitting to a fine if it were insufficient. The tribunals were thus ever changing into committees of legal experts, with a strong bias towards royal authority. Meantime we know from other evidence that the King and the King’s justice were ever growing at their expense; and we may ask ourselves whether there was anything in the royal office and functions which gave them an advantage in this competition with the Popular Local Courts. The story of the struggle is far too long and intricate to be told here; but the habits of the King gave him one advantage which there is some interest in pointing out, all the more because it is often overlooked. I do not suppose that, when a litigant put himself from the first into the King’s hands, or appealed to the King over the head of the popular tribunal, he went to some royal residence, palace, or castle. This would have been an aggravation of the difficulties of the popular local justice. It was not the litigant who went to the King, but the King who came to the litigant. I believe upon a good deal of evidence3 that these ancient kings were itinerant, travelling or ambulatory personages. When they became stationary, they generally perished. The primitive Kings of communities confined within walls, like the old Athenian and the old Roman Kings, soon dropped out of sight. Perhaps, as Mr. Grote has suggested, they lived too much in full view of their subjects for their humble state to command much respect when the belief in their sacredness had been lost. But the more barbarous King of communities spread over a wide territory was constantly moving about it; or, if he did not, he too perished, as the Kings called the rois fainéants of the Franks. If I were called upon to furnish the oldest evidence of these habits of the ancient King, I should refer to those Irish records of which the value is only beginning to be discerned, for, whatever may be said by the theorists who explain all national characteristics by something in the race or the blood, the most ancient Irish laws and institutions are nothing more than the most ancient Germanic laws and institutions at an earlier stage of barbarism. Now, when Englishmen like Edmund Spenser first began to put their observations of Ireland into writing at the end of the sixteenth century, there was one Irish practice of which they spoke with the keenest indignation. This was what they called the ‘cuttings’ and ‘cosherings’ of the Irish chiefs, that is, their periodical circuits among their tenantry for the purpose of feasting with their company at the tenants’ expense. It was, in fact, only a late survival of common incidents in the daily life of the barbarous Chief or King, who had no tax-gatherers to collect his dues, but went himself to exact them, living as a matter of right while he moved at the cost of his subjects. The theory of the Irish law was, though it is impossible to say how far it corresponded with the facts, that the Chief had earned this right by stocking the clansman’s land with cattle or sheep. We find a highly glorified account of the same practice in ancient records of the life and state of those Irish Chiefs who called themselves Kings. ‘The King of Munster,’ says the ‘Book of Rights,’ ‘attended by the chief princes of his kingdom, began his visits to the King of Connaught, and presented to him 100 steeds, 100 suits of military array, 100 swords, and 100 cups; in return for which the said King was to entertain him for two months at his palace at Anachan, and then to escort him to the territories of Tyrconnell. He presented to the King of Tyrconnell 20 steeds, 20 complete armours, and 20 cloaks, for which the said King supported him and the nobility of Munster for one month, and afterwards escorted him to the principality of Tyrone.’ The King of Munster is then described as proceeding through Tyrone, Ulster, Meath, Leinster, and Ossory, everywhere bestowing gifts on the rulers, and receiving entertainment in return. I suspect that the entertainment is of more historical reality than the royal gifts. The practice, however, described with this splendour by the chronicler or bard, is plainly the same as the cutting and coshering which Spenser and others denounce as one of the curses of Ireland.
There is reason to believe that the English Kings itinerated in the same way and mainly for the same purpose. The ‘Eyres’ of the Anglo-Saxon Kings are described by Palgrave in his ‘Rise of the English Commonwealth’ (i. 286). The lawyer might suspect the continuance of the practice from the comparative obscurity of some of the places at which some of the most permanently important of our old statutes were enacted—Clarendon, Merton, Marlbridge, Acton Burnell. The novel-reader comes upon a survival of it in ‘Kenilworth,’ for the progresses of so late a sovereign as Elizabeth were certainly descended from the itinerancy of her predecessors. But there is other evidence of a rather remarkable kind. Two historical scholars, Mr. Eyton and the late Sir T. Duffus Hardy, have constructed from documentary testimony accounts of the movement from place to place, during a long space of time, of two of our English Kings, King Henry II. and King John. Neither of them of course is a very ancient King, and in both there may have been a certain amount of native restlessness, but their activity, though it may have been excessive, was certainly not a new royal habit. I take the movements of King John for notice, because his reign makes an epoch not only in English political but in English judicial history. Sir Thomas Hardy’s ‘Itinerary of King John’ gives the places at which that King is found to have stayed during every month of every year from 1200 to 1216, the regnant year then beginning on Ascension Day. I take almost at a venture May of 1207. On the 1st of May the King is found at Pontefract, on the 3rd at Derby, on the 4th at Hunston, on the 5th at Lichfield, on the 8th at Gloucester, on the 10th at Bristol, on the 13th at Bath, on the 16th at Marlborough, on the 18th at Ludgershall, on the 20th at Winchester, on the 22nd at Southampton, on the 24th at Porchester, on the 27th at Aldingbourn, on the 28th at Arundel, on the 29th at Knep Castle, and on the 31st at Lewes. The King must of course have made all these journeys on horseback over a country scarcely provided with any roads except the Roman roads. But, again, I will take June in 1212, when the King goes to a more distant and more impracticable tract of country. On June 4th he leaves the Tower of London, and on the 28th is at Durham, having been in the meantime to Hertford, Doncaster, Richmond in Yorkshire, Bowes, Appleby, Wigton in Cumberland, Carlisle and Hexham. What is still more remarkable, he marches at much the same rate in Ireland, which was then as little known and as impassable a country as now are the wildest parts of the Sierra Nevada. He reaches Waterford with his troops from Haverfordwest on June 20th, 1210, and is back again at the end of August, having been at every place of importance in the south-eastern half of the country. It must be understood that I am not selecting periods in which the King’s movements were exceptional or his activity greater than usual. This was practically his life during every month of every year of his reign. King John passes for an effeminate sovereign, but no commercial traveller of our day, employed by a pushing house of business, was ever, I believe, so incessantly in movement, and for so many successive years, with all the help of railways.
We are able to see how the itinerant King gradually became a monarch of the modern type. The change may be attributed to the growth of the system of missi, of itinerant deputies of the sovereign, his servants, as the English phrase was, in eyre. The first employment of the missi was much older than the reign of King John on the Continent, and considerably older in England. But, as is usual in such cases, one system did not all at once displace the other, and Kings, though gradually becoming more stationary or sedentary, did not suddenly cease to move about their dominions when they began to be represented by itinerant justices or deputies of their own. The transition, however, was hastened in our own country by the great constitutional change of which I will speak presently.
But first of all let us notice how this ambulatory life of the ancient Teutonic King gave him an advantage, as a great judicial authority, over the ancient local Popular Courts which had possibly existed from time immemorial by his side. As I have explained, they contained in themselves certain seeds of decay. Their numerous members had the strongest reasons for evading or slackly discharging what must have seemed to them a most rigorous duty. They had to waste many days and to incur many dangers while travelling by forest and fen to the place of meeting. They had to acquaint themselves with all the circumstances of the cases brought them without any of the aids of a modern Court of Justice. They had often to visit the scene of alleged acts of violence. They had not merely, like a modern jury, to decide on questions of fact; they had also to declare the law or usage and to pronounce the sentence. And then after all this, they might themselves be proceeded against for a wrongful judgment, and even, according to the judicial system of some communities, they might be called upon to defend their sentence in arms. A capitulary of Charles the Bald bids them go to Court armed as for war, for they might have to fight for their jurisdiction; and at a later date the oath of service exacted by the feudal lord constantly bound the vassal just as closely to service in Court as to service in arms. The burden on the poor man was so severe that the Church interfered in his favour, and a Council of the ninth century protested against the cruelty of forcing the poor to do suit in Court.
But while all these causes were weakening and emptying the Popular Courts, the King was constantly perambulating the country, carrying with him that royal justice which had never been dissociated from him since his dignity existed.4 The justice which he dispensed was in the first place complete, since he always by his officers executed his own decrees. It was also irresistible, since he generally had with him the flower of the military strength of the country. It was probably purer than that of the popular tribunal, which was certainly not inaccessible to corruption; and it was more exact, for anything like precise legal knowledge was very much confined to the experts who followed the King in his progresses. Moreover, in those days, whatever answered to what we now call the spirit of reform was confined to the King and his advisers; he alone introduced comparative gentleness into the law and simplified its procedure. Thus the royal justice was ever waxing while the popular justice was waning; and from the ascendency which the first finally attained are in fact descended most of the characteristics which we associate with the law, and which some theorists declare to be inseparable from it—uniformity, inflexibility, and irresistibility.
It may almost be laid down that in England nothing wholly perishes. The itinerant King is still represented among us by the Judges of Assize on Circuit; the ancient Popular Court survives in the Jury, though in the last instance the line of descent is far dimmer and far more broken than in the first. When John reigned, the delegation of the royal authority to itinerant servants of the King for some purposes had long been known; but one branch of royal jurisdiction, that over the Common Pleas, or in other words over the greatest part of the more important civil litigation of the nation, was carried about with him by the King in those surprising progresses of which I have spoken. Hence gradually arose a great abuse. In primitive times, when questions were simple, the King as he approached each local centre in turn had perhaps no difficulty in deciding every case which came before him before he went away. But, as a more complex and wealthier society arose, there was the greatest difficulty in getting the King, as it was called, to give the suitor a day. Sir Francis Palgrave has printed in the second volume of his ‘Rise of the English Commonwealth’ a most curious document, which is the account given by one Richard de Anesty of the trouble and charges to which he was put in respect of a mixed civil and ecclesiastical case which he had before the Archbishop of Canterbury and the King. Besides infinite vexation from the Ecclesiastical Courts, he had to follow Henry II. across the sea to France and up and down England before he could get his day. After reading this paper, we gain a vivid idea of the importance of the provision in the Great Charter that the ‘Common Pleas shall no longer follow the King.’ This is a great judicial epoch, marking a revolution in judicature; and King John at once proceeded to illustrate the necessity for it. He sealed Magna Charta at Runnymede on June 15, 1215, and before July 15 he had been over the whole of the south of England and again northwards as far as Oxford. Meantime the judges of the Common Pleas were sitting—as they did ever since till the Court of Common Pleas was absorbed the other day in the High Court of Justice—at Westminster, and at Westminster only.
With the sealing of the Great Charter the early history of the relation of the English King to civil justice comes to a close, and the modern English judicial system is established. It is distinguished in some respects from the corresponding systems of the European Continent, though these too were results of the same general causes. It is the most highly centralised system of judicial administration in the world, all the important branches of judicial business being localised in London, and a portion only diffused through the country by Judges in eyre, the old missi sent from the side of the King. The only considerable modification of these principles was made when the modern County Courts were established, courts extremely unlike the old Shire Courts. These last have left the merest trace behind them, perhaps in some mound now overgrown with trees which marks their ancient place of open-air meeting, perhaps in some trifling fine imposed on landholders for failing to attend a non-existent tribunal. Even with the addition of the newer County Courts, the English judicial system has another feature peculiar to itself—the fewness of the judges employed in administering justice.
If you look across the channel to France, you find these characteristics reversed—comparatively little judicial centralisation, a large number of local courts, a multitude of judges distributed over the various tribunals. The French King, like the English King, became the theoretical fountain of justice, but the effect was produced much more by the zeal with which expert lawyers trained in the Roman law preached his authority than by direct supersession of the local courts by emissaries of his own. On the other hand, the character of the law itself, however administered, was much more changed in France and on the Continent generally than in England. The Roman law gained everywhere a considerable, and here and there a complete, ascendency over ancient custom, and the French Civil Code, the outcome of the Revolution, is only a version of Roman jurisprudence. But, though much is obscure in the beginnings of what we Englishmen call the Common Law, it was undoubtedly in the main a version of Germanic usage, generalised by the King’s courts and justices. Some savour of the ancient opposition between the popular justice and the royal justice still clung about it, since we know that, theoretically administered in the King’s name, it came at a much later date to be thought the barrier of popular liberty against assertions of prerogative by Tudor and Stuart. Meantime that residuary authority over law and justice, which was never in ancient times quite dissociated from the King, survived the maturity of the common law. From this sprang the jurisdiction of the Court of Chancery, which cannot be said to have ever been exactly popular, but which certainly owed whatever unpopularity attached to it not to any supposed inherent badness, but to incidental vices, its dilatoriness and its costliness. But then from this same residuary authority arose the criminal jurisdiction of the Star Chamber, which has become with ordinary English historians a very proverb of judicial oppression. The true historical difference, however, between the so-called equity of the Court of Chancery, and the illegalities and unconstitutionalities of the Star Chamber, is that one had its origin before the authority whence it sprang had been seriously questioned, while the other did not obtain an effectual jurisdiction till its time had gone by. The depth of discredit into which Star-Chamber justice fell marks the decline and fall of the King’s beneficial influence over law. The royal judicial authority was once the most valuable and indeed the most indispensable of all reforming agencies, but at length its course was run, and in nearly all civilised societies its inheritance has devolved upon elective legislatures, themselves everywhere in the western world the children of the British Parliament.
[1 ]There is no doubt that the Court of Star Chamber was of higher antiquity than the statutes regulating it, 3 Henry VII. c. 1, and 21 Henry VIII. c. 20.
[2 ]De terrâ (Salicâ) in mulierem nulla portio hœreditatis transit,’ &c. The word ‘Salicâ’ is certainly an interpolation, as may be seen at a glance from the tabular comparison of the MSS. in the splendid edition of the Lex Salica by Messrs. Kern and Hessels. (London: Murray, 1880), L.S. 379 et seq.
[3 ]See Grimm, Deutsche Rechtsalterthümer I. 237. ‘Erstes Geschäft des neuen Königs war sein Reich zu umreiten.’ . . . Grimm quotes Gregory of Tours, 4, 14, ‘Deinde ibat rex per civitates in circuitu positas.’ He refers also to similar duties of the Swedish King, and cites the prayer of the Saxons to Henry IV.: ‘Ut totam in solâ Saxoniâ ætatem inerti otio deditus non transigat, sed interdum regnum suum circumeat.’
[4 ]A passage in an interesting book, Drew’s Kashmir and Jummoo, curiously illustrates the character of the ancient royal jurisdiction, and also one of the motives which produced the King’s activity in exercising it. Here is an account of what still goes on in the Curia Regis of the Maharajah of Cashmere, himself a sovereign much more modern than the system he follows. Gholab Singh, the first of the dynasty which was established by the English in 1846, was (says Mr. Drew) ‘always accessible, patient and ready to listen to complaints. He was much given to looking into details, so that the smallest thing might be brought before him and receive his consideration. With the customary offering of a rupee, any one could get his ear; even in a crowd one could catch his eye by holding up a rupee and calling out “My Lord the King, a petition!” He would pounce down like a hawk on the money, and, having appropriated it, would patiently hear out the petitioner. Once a man after this fashion making his complaint, when the Maharajah was taking the rupee, closed his hand on it and said, “No; first hear what I have got to say.” Even this did not go beyond Gholab Singh’s patience; he waited till the man had told his tale and opened his hand; then, taking the money, he gave orders about the case.’ ‘The civil and criminal cases,’ it is afterwards stated, ‘have usually been previously inquired into by judicial officers in the Courts of First Instance, and perhaps have been adjudicated upon by the Court of Appeal; but it is open to suitors and complainants to try their fortune with the Maharajah himself.’