The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

APPENDIX B

A SHORT BIBLIOGRAPHY OF AMERICAN COLONIAL LAW1

By Paul Samuel Reinsch2

Addison, Alexander. Charges to Grand Juries in Pennsylvania, 1791-1798. Washington, Pa., 1799.

Andrews, Chas. M. The Connecticut Intestacy Law. Yale Review, 1894.

Arnold, Samuel Green. History of Rhode Island. Providence, 1894.

Balch, Thomas. Letters and Papers relating to the Provincial History of Pennsylvania. Philadelphia, 1855.

Baldwin, Simeon E. American Business Corporations before 1789. Rep. Amer. Hist. Assoc., 1902, I, 255.

—. The American Judiciary. New York, 1905.

—. Modern Political Institutions. Ch. 6, 7. New York, 1898.

—. Three Constitutions of Connecticut. New Haven Hist. Soc. Papers, V., 180.

Batchellor, A. S. Development of Probate Law in New Hampshire. Concord, 1907.

Bassett, J. S. Landholding in Colonial North Carolina. Law Qu. Rev. 11: 154.

Belknap, Jeremy. History of New Hampshire. Dover, 1831.

Bell, Charles H. Bench and Bar of New Hampshire. Boston, 1894.

Benedict. American Admiralty. Ch. 9.

Blenman, J. Remarks on the Trial of Zenger for Libel in New York. London, 1738.

Bonney, C. C. Practical Law Reform. Ill. State Bar Assoc. Rep., 1882.

Bronson. Early Government in Connecticut. New Haven Hist. Soc. Papers, III, 291.

Brown. Civil Liberty in Maryland. Maryland Hist. Soc. Papers, 1850.

Brown, Alexander. The First Republic in America. Boston, 1898.

—. The Genesis of the United States. Boston, 1890.

Browne, Irving. William Sampson. Green Bag, 1896.

Butler, Wm. A. The Revision and the Revisors. New York.

Byrd, William. History of the Dividing Line and other Tracts. Richmond, 1866.

Calendar of State Papers. Colonial Series; America and the West Indies, 1677-1698. (6 vols., last vol. dated 1904.)

Calendar of Virginia State Papers.

Calvert Papers. Maryland Hist. Soc. Publications. Baltimore, 1889.

Campbell, Charles. History of the Colony and Ancient Dominion of Virginia. Philadelphia, 1860.

Carpenter, A. H. Habeas Corpus in the Colonies. Am Hist. Rev. 8: 18-27.

Carter, J. C. New York Practice Code. Am Bar Assoc. Rep., 1895.

—. The Proposed Codification of our Common Law. Am. Bar Assoc. Rep., 1884.

Chalmers, George. Opinions of eminent Lawyers on various Points of English Jurisprudence chiefly concerning the Colonies. London, 1858.

—. Political Annals of the Present United Colonies. London, 1780.

Century of Law Reform. New York, 1901.

Chipman, Daniel. Reports (Vermont). Introductory Dissertation.

Clarke, R. Digest of Law Publications. Cincinnati, 1879.

Collections of the Connecticut Historical Soc., Vol. I. Hartford, 1860.

Collections of the Historical Soc. of South Carolina.

Common Law Jurisdiction. No. Amer. Rev., 21: 104.

Commonwealth vs. Knowlton, 2 Mass. 530.

Coxe, B. Judicial Power and Unconstitutional Legislation, Phila., 1893.

Dallas (Pennsylvania) Reports.

Daly, Charles P. The Common Law. Albany, 1894.

—. Preface to 1 E. D. Smith’s Reports (New York).

Davis, Andrew M. Corporations in the Days of the Colony. In Publication of Colonial Society of Massachusetts, I, 196. Boston, 1895.

Delaware Historical Soc. Papers, Vol. II.

De Lovio vs. Boit, 2 Gallison 470.

Denis, Henry. The Analogies and Differences of the Civil and Common Law (Louisiana). Am. Law Rev., 33: 28-41.

Dillon, John F. The Laws and Jurisprudence of England and America. 1895.

Documents relative to the Colonial History of New York.

Duke of York’s Laws. Charters and Laws of Pennsylvania. (Published at Harrisburg, Pa., 1879.)

Dwight (Loomis) and Calhoun (J. G.). Judicial and Civil History of Connecticut. 1895.

Eliot, Edward C. The Common Law of the Federal Courts. Am. Law Rev., 36: 498-525.

Etting. Admiralty Jurisdiction in America. Philadelphia, 1879.

Ewart, John S. What is the Common Law? Columb. Law Rev., IV, 116-126.

Fernow, Berthold. Calendar of Wills, 1626-1836. New York, 1896.

Field, David D. American Progress in Jurisprudence. Am. Law Rev. 27: 641.

—. Codification in United States. Jurid. Rev., I, 18.

—. Speeches, Arguments, and Miscellaneous Papers. Edited by A. P. Sprague and T. M. Coan. New York, 1884-1890.

Field, Henry M. Field Family History.

Field, Richard S. Provincial Courts of New Jersey. New York, 1849.

First National Bank vs. Kinner, 1 Utah 106.

Force, Peter. Tracts and other Papers. Washington, 1844.

Fowler, Robert L. History of the Law of Real Property in New York. New York. Baker. 1895.

Gambrall, Th. C. Studies in the Civil, Social, and Ecclesiastical History of Early Maryland. New York, 1893.

Gray, F. C. Remarks on the Early Laws of Massachusetts Bay. Massachusetts Hist. Collections, Third Series, VIII, 191.

Grants and Concessions of New Jersey.

Grubb, Ignatius C. The Colonial and State Judiciary of Delaware.

Hawks, F. L. History of North Carolina. Fayetteville, 1859.

Hening. Statutes at Large of Virginia.

Hoadly, George. The Codification of the Common Law. Amer. Law Rev. 23: 495-520.

Hollister, G. H. History of Connecticut. New Haven, 1855.

Howard, G. E. History of Matrimonial Institutions. Part III. Chicago, 1904.

—. Local Constitutional History of the United States. Baltimore, 1889.

Howison, R. R. History of Virginia. Philadelphia, 1846.

Hubbard’s History. Massachusetts Historical Collections: Second Series, VII, 320.

Hutchinson Papers. Prince Society Publications. Albany, 1865.

Illinois Historical Collections, Vol. II, 1907. Cahokia Records.

Jefferson, Thomas. Complete Works. Washington, 1853-1854.

Jones, Hugh. The Present State of Virginia (1724). New York, 1865.

Kellogg, Louise P. The American Colonial Charter. Rep. Am. Hist. Assoc., 1903. I, 187.

Kilty, John. Landholder’s Assistant. Baltimore, 1808.

Kinne, Asa. Imprisonment for Debt. New York, 1842.

Laussat, Anthony. Equity in Pennsylvania. 1825. Pennsylvania Bar Assoc. Rep., Vol. I.

Laws of Pennsylvania. Edition of 1810.

Lechford, Thomas. Plaine Dealing, or News from New England. Trumbull’s Edition. Boston, 1867.

—. Note Book, 1638-1641. In Trans. of the American Antiquarian Society, Vol. VII. Cambridge, 1885.

Legal Condition of Women. No. Amer. Rev., April, 1828.

Lewis, Lawrence. Courts of Pennsylvania in the 17th Century. Pennsylvania Bar Assoc. Rep., Vol. I.

Lewis and Newhall. History of Lynn. Boston, 1865.

Livingston, Edw. Codes and Reports on Codes. New York, 1872.

Marks vs. Morris, 4 H. & Mun. 493.

Martin. Statutes of Parliament in force in North Carolina in 1792.

Maryland Archæological Society Proceedings.

Maryland Archives, Proceedings and Acts of the General Assembly.

—. Proceedings of the Council.

Massachusetts Historical Society Collections.

McCrady, Edward. The History of South Carolina under the Proprietary Government. New York, 1897.

McKennon vs. Winn (Okl.). 22 L. R. A., 501.

McMahon, John Van Laer. Historical View of the Government of Maryland. Baltimore, 1831.

Metcalf (Theron) and Perkins (J. C.). Digest of the Decisions of the Courts of Common Law and Admiralty in the United States. Vol. I. Boston, 1846.

Mills, Robert. Statistics of South Carolina. Charleston, 1826.

Morgan vs. King, 30 Barbour 13.

Morris, W. O. The Civil Code of New York. Fortn. Rev. 14: 294.

Meyers vs. Gemmel, 10 Barbour 541.

Neill, Edward D. Virginia Carolorum. Albany, 1886.

New York Historical Society Collections.

Osgood, Herbert L. The American Colonies in the Seventeenth Century. 3 vols., 1904.

Palfrey, John Gorham. History of New England. Boston, 1858-1898.

Penn and Logan Correspondence. Memoirs of the Historical Society of Pennsylvania, Vols. IX and X. Philadelphia, 1870.

Pownall, Thomas. The Administration of the Colonies. London, 1768.

Potter, Platt. Dwarris on Statutes and Constitutions. Albany, 1871.

Prince, W. F. The First Criminal Code of Virginia. Rep. Am. Hist. Assoc., 1899. I, 309.

Quincy (Massachusetts) Reports.

Ramsey, David. History of South Carolina. Charleston, 1808.

Randolph, Edward. Prince Society Publications. Boston, 1898.

Records of New Amsterdam. New York, 1897.

Rivers, William James. A Sketch of the History of South Carolina Charleston, 1856.

Roberts. Digest of British Statutes in force in Pennsylvania.

Rogers, H. J. (Edited by). International Congress of Arts and Sciences, St. Louis, 1903. Vol. 2. History of Law.

Russell, W. The California System of Codes. Mich. L. J. II, 279.

Sampson, Wm. Discourse before the New York Historical Society on the Common Law. 1823.

Sharswood, George. The Common Law of Pennsylvania. Pennsylvania Bar Assoc. Rep., Vol. I.

Simmons, John F. The Territorial Expansion of the Common Law Ideal. Mich. Law Rev., 4: 1-18.

Smith, George. History of Delaware County. Philadelphia, 1862.

Smith, Wm. History of New York. Albany, 1814.

Smith, Samuel. History of the Colony of New Jersey. Burlington, 1765.

Sparks, F. E. Causes of the Maryland Revolution of 1689. (Johns Hopkins University Studies). Baltimore, 1896.

State vs. Campbell. T. W. P. Charlton’s Reports (Ga.), 166.

Stokes, Anthony. View of the Constitution of the British Colonies in North America and the West Indies. London, 1783.

Story, On the Constitution. Sections 146-198.

Suffolk Deeds. Boston, 1880-1897.

Terry. Leading Principles of Anglo-American Law. 1884.

Thayer, J. B. A Chapter of Legal History in Massachusetts. Harvard Law Rev., 9: 1.

—. Miscellaneous Essays, 1908.

Thomas, Gabriel. Historical and Geographical Account of Pennsylvania and West Jersey. London, 1698.

Tower, Charlemagne. The Charlemagne Tower Collection of American Colonial Laws. Privately printed for the Historical Society of Pennsylvania. 1890.

Trumbull, John Hammond (Ed.). The True Blue Laws of Connecticut and New Haven. Hartford, 1876.

Two Centuries of Growth of American Law, 1701-1901. By Members of the Faculty of Yale Law School. Yale Bicentennial Publication.

Van Ness vs. Packard, 2 Pet. 144.

Virginia Historical Collections.

Washburne, Emory. Sketches of the Judicial History of Massachusetts. Boston, 1840.

White, H. Civil Government in the New Haven Colony. New Haven Hist. Society Papers, I, 1.

Wilford vs. Grant, Kirby (Conn.) 114.

Williston, S. Business Corporations before 1800. Harv. Law Rev., 2: 165.

Wilson, James. Law Lectures.

Winthrop, John. History of New England from 1630 to 1649. Boston, 1853.

26.

AN HISTORICAL SURVEY OF ANCIENT ENGLISH STATUTES1

By the Record Commissioners2

Chap. I.

NO Complete and Authentic Edition of the Statutes has hitherto been undertaken by authority; nor has the design itself ever been suggested, simply, and without connection with other schemes of reformation or improvement.

A general revision of the statute law has been often reccommended from the throne; and has been petitioned for by both houses of Parliament; It has engaged the labours of successive committees, and has been undertaken by individuals sometimes with, and sometimes without, the sanction of royal or parliamentary authority; but has never yet been carried forward to any degree of maturity.

In Queen Elizabeth’s Reign ad 1557, Sir N. Bacon, Lord Keeper, drew up a short plan for reducing, ordering, and printing the Statutes of the Realm. The following are the heads of this plan:3 “First where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated.—Item, where there is but one lawe for one thing, that these lawes are to remain in case as statutes.—Item, where part of one acte standeth in force and another part abrogated, there should be no more printed but that that standeth in force.—The doing of these things maie be committed to the persons hereunder written, if it shall so please her Majesty and her Counsell, and daye wolde be given to the committees until the first daie of Michaelmas terme next coming for the doing of this, and then they are to declare their doings to be considered of by such persons as it shall please her Majesty to appoint.” Then follow lists of twenty committees of four each, in which the judges, sergeants, attorney and solicitor general, &c. are named; One judge, &c. and three counsel forming a committee, to each of which it was proposed that a title or division of the statute law shall be referred.

The subject was afterwards taken into consideration, so far as related to the penal laws, at subsequent periods in the reign of the same Queen, viz. Anno 27, ad 1585.1 —Anno 35, ad 1593.2 —Anno 39 & 40, ad 1597.3 —Anno 43, ad 1601.4 —In the proceedings in 1593 and 1597 Sir Francis Bacon took part, and upon them he appears to have founded his sketch, or plan of a general revisal of the statute law.5 —King James I., upon his accession to the throne of England, 1603-4, and in subsequent periods of his reign, recommended also to Parliament a reform of all the statute law and of the penal laws in particular.6

In the year 1610 a digest and repeal of the penal law was expressly stipulated for by the House of Commons, and acceded to by the House of Lords, in their joint transaction of the great contract with the Crown;7 and in the same reign Sir Francis Bacon, Lord C. J. Hobart, Serjeant Finch, Mr. Noy, and others, by the King’s command, made considerable progress in the general work of reforming and recompiling the statute law, which Lord Bacon describes8 as “an excellent undertaking, of honour to his Majesty’s times, and of good to all time;” and recommends, in imitation of the statutes of 27 Hen. VIII. c. 15, and 3 & 4 Edw. VI. c. 11, for appointing commissioners to examine and establish ecclesiastical laws, that commissioners be named by both houses for this purpose also, with power not to conclude, but only to prepare and propound the matter to Parliament.

In the British Museum is preserved a manuscript volume1 containing the plan of an elaborate report, particularizing the several statutes, from the statute of Westminster First, 3 Edw. I. to 7 Jac. I. 1609, then actually repealed or expired, and also the statutes thought fit either to be absolutely repealed, or to be repealed and new laws to be made in their place. Possibly this may be the very work spoken of by Sir Francis Bacon.2 It is drawn up as by authority, with detailed reasons for every proposed measure; but it is not signed by, or addressed to, any one. A table is subjoined to it, exhibiting the result of the report.

Among the papers of Mr. Petyt, in the inner Temple Library3 is a letter of Lord Bacon’s dated 27th, February 1608, which shews that he had the advantage of using for his proposed plan a manuscript collection of the statutes made with great labour by Mr. Michael Heneage, keeper of the Tower records, in five large volumes, which it is feared has been lost. Lord Bacon’s disgrace at the latter period of the reign of King James I. and the distractions of the Government in what related to Parliament, were probably the causes of the failure of these measures, and of the silence that ensues respecting them in parliamentary history.

During the usurpation, the same undertaking was resumed with ardor. In 1650, a Committee was named, one of the members whereof was Bulstrode Whitelock, then first Lord Commissioner for the Custody of the Great Seal: the purpose was “to revise all former statutes and ordinances, now in force and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a compendious way and exact method, for the more ease and clear understanding of the people.” And the committee were empowered “to advise with the judges and to send for and to employ and call to their assistance therein, any other persons whom they should think fit, for the better effecting thereof, and to prepare the same for the further consideration of the house, and to make report thereof.”1 But no such report has been preserved.

In 1651-2, Mathew Hale, Esq., afterwards Lord Chief Justice Hale, Sir Anthony Ashley Cooper, afterwards Lord Shaftesbury and Rushworth, the author of the historical collections, with other persons out of the House, were appointed to report to the committee their opinions upon the inconveniences of the law; and a revised system of the law was reported to the House in the course of the same year.2 The same labour was afterwards transferred to other hands, but the work was not abandoned; and in 1653, a committee was appointed to consider of a new model or body of the law.3 But of this committee no proceedings are now discoverable.

After the restoration, Finch, Solicitor General, afterwards Earl of Nottingham and Lord Chancellor, Serjeant Maynard, Sir Robert Atkins, Mr. Prynne and others, were appointed in 1666, to be a committee “to confer with such of the Lords, the Judges, and other persons of the long robe, who have already taken pains and made progress in perusing the statute laws; and to consider of repealing such former statute laws as they shall find necessary to be repealed; and of expedience for reducing all statute laws of one nature under such a method and head as may conduce to the more ready understanding and better execution of such laws.”4 This, however, was as ineffectual as any of the former measures; and it is the last recorded instance of the interference of Parliament on the subject, previous to those proceedings which gave rise to the commissions under the authority whereof the present work has been executed.

The earliest instance of the exertions of any individuals without the sanction of parliamentary authority, towards making a collection of statutes from authentic sources, appears to have been afforded by Pulton.—He was a learned barrister, of great age and experience, and was employed for several years in the consideration of the statute law. He published two useful books upon that subject; first, an abridgement of the penal statutes; and afterwards a calendar or abstract of all the statutes in use, chronologically arranged; together with an alphabetical abridgement of them, in the manner of Rastall’s collection. He appears to have been encouraged and assisted in his first work by Sir William Cordell, then Master of the Rolls, to whom it is dedicated; various editions of this were published from 1560 to 1577. His calendar, first published about 1606, is distinguished by the following expression in the title page, viz: “Editum per mandatum Domini Regis.” But nothing else, either in the book or elsewhere, has been found to confirm any marks of royal authority upon the contents of the book. After the publication of these works, without any public patronage or recommendation beyond the permission to use the records, he conceived the plan of copying from their original records, and printing for general use, all the statutes supposed to be in force.

This plan it will be useful to state at length: And this we are enabled to do by the preservation of the papers, containing his original scheme, among Sir Robert Cotton’s manuscripts in the British Museum.1 In one of these papers the design is set forth: it is indorsed, in a hand frequent among the Cottonian manuscripts, “concerning Mr. Pulton’s suite;” and has no other title, mark or description at the beginning or end; though by another article referring to it, there is proof of its date being in or previous to 1611. “Mr. Pulton seeketh to print the statutes at large. He promiseth to set down which statutes or parts of statutes are repealed, and which, being at the first but temporary, are since expired and void, because not revived. This he hath already done in his late abridgement, for which he had a recompense of the printer. Now, to make this new book at large saleable, he promiseth to print the statutes first in the language the same were first written; and such as were originally in French or Latin, he will translate and print likewise in English. Where the statute has no title, he will devise a title out of the body, and print it with the statute. He will set down which statutes are warranted by the record, and which not. He will correct the printed book by the record. For which purpose he requireth free access at all times to the records in the Tower. Being very aged, viz. almost four score, he desireth that for his ease and better enabling in his work, the keeper of the records within the Tower of London, may every day deliver unto him, when he shall so require, one Parliament Roll, to be by him and his clerk perused and viewed, in a lodging which he hath taken near unto the said office; the same afterwards to be redelivered by them to the said keeper thereof. That the clerk do help further, and assist him in this service by all the means he can.”

Several objections to the prosecution of this plan were made by Bowyer and Elsyng, keepers of the Tower records; among others, that they and their predecessors had actually prepared materials for the work in question, and that they then had ready written five volumes of statutes copied from the records. These were perhaps the volumes alluded to in Lord Bacon’s letter before mentioned.1 The dispute between the parties was continued for some time; but there remains among the Cottonian manuscripts2 a draft of an award for its determination by Sir Robert Cotton himself, to whom they referred their differences; and from a paper in the British Museum, among the manuscript of Mr. Madox,3 it appears that an order of Council passed on the 24th October, 1611, granting license to Pulton to have the use of the records in the manner asked. It recites that he undertook the work by persuasion of the judges and others learned in the laws, and requires the keepers of the records, on account of the importance of the work, and for the benefit of the learned, to assist and further him all they can.

Pulton lived to publish the proposed edition in 1618; which is the work already spoken of as Pulton’s English Statutes. In his preface, after noticing the redundancies of former editions, containing subsidy Acts and other Acts “expired, repealed, altered, and worn out of use,” and his intention to publish such only “which be now in life, force, and general use,” he gives the following statement of the means he had employed in compiling his collection.

“First, with as great means, care, and industry, as possibly I could use, so many of the old statutes heretofore printed in the English tongue, made and published in the reigns of the first ten kings (accounting from 9 of Hen. III. unto 1 Ric. III. inclusive) as be chiefly in use and practice, and which are the foundation of proceedings both legal and judicial, have been by me truly and sincerely examined by the original records thereof remaining in the Tower of London, and the residue with the Register of Writs, being the most antient book of the law, the old and new Natura Brevium, the Books of Entries, the Books of Years, and Terms of the Law; the best approved, printed, and written books; and by all such other circumstances, as might best give probability of truth unto the learned. By reason whereof, the aforesaid defects, imperfections, and emblemishments being reformed in this edition, as it is a collection of the most usual laws, gathered from out the Grand Codex of all the statutes, so it may serve as a correction to the former impressions.”

The defects of Pulton’s publication, as a general collection of statutes, are chiefly these: 1st. As to the statutes preceding Henry VII., it is a translation in English, and does not exhibit the text in the original language of the records, as might have been expected from his proposal: 2dly. Though it had the permission, it had not the authority of the king, by whom all acts of legislation are to be communicated to the subject; and was only the private work of an individual for his own benefit: 3dly. It is a partial selection of such statutes as in the judgment of the author, were fittest to appear in his book; their authority and use, whether in force or repealed, depending on his opinion: 4thly. It is not, nor does it purport to be, a correct and examined copy from the original records, of all those acts which are given at large; but of such only as the author thought necessary so to examine and correct: and it is left uncertain, which, and how many of them were taken from printed or written books. It has, therefore, though in a less degree, the same faults as all the collections and editions of statutes printed before; and it was particularly unfortunate that the author did not execute that part of his proposals which made their greatest merit, namely, the giving an accurate copy of the original text of the antient statutes from the record.

These objections are no less applicable to the editions by Hawkins and Cay, as falling short of the character of a complete and authentic collection of the statutes. They professed indeed to have copied their text from original records, or other manuscripts, in Latin and French; but by printing some statutes and parts of statutes, with a translation, and some without it, and giving only a translation of others, they have rendered their editions liable to still further objections, for which no subsequent editor has hitherto attempted to offer a remedy.

From the preceding statement, the necessity and use of an authentic publication of the statutes of the realm will appear: For, although the defects of all former collections have been long complained of by learned and eminent men, and although various propositions have been offered at different times, for an authentic publication of the statutes, none such has yet been executed. At length, however, a select committee, appointed by the House of Commons of Great Britain, in the year 1800, to enquire into the state of the public records of the kingdom, having reported upon this branch of the matters referred to their consideration, that in their opinion, it was “highly expedient for the honour of the nation, and the benefit of all his Majesty’s subjects, that a complete and authoritative edition of all the statutes should be published;” in pursuance of their recommendation the present work has been undertaken and executed; under the authority and direction of commissioners specially appointed by his Majesty to carry into effect the several measures which were by that committee recommended to the attention of Parliament.

CHAP. III.

Sect. I.—Of the Matters inserted in this Collection of the Statutes; and their Arrangement. Sect. II.—Of the Sources from whence the several Matters have been taken. Sect. III.—Of the Mode used in searching for, transcribing, collating, noting, and printing the Text of the Statutes.

Sect. I.

Of the Matters inserted in this Collection of the Statutes; and their Arrangement.

1. All instruments whatever, comprehended in any of the several collections of the statutes printed previous to the edition of Hawkins, are inserted in this work; these having for a long series of years been referred to, and accepted as statutes in courts of law: together with these are inserted all matters of a public nature, purporting to be statutes, first printed by Hawkins or any subsequent editor; and also new matters of the like nature, contained in any Statute Rolls, inrollments of Acts, exemplifications, transcripts by writ and original Acts, although not heretofore printed in any general collection of statutes. All these are placed in the body of the work as text. But it is to be particularly observed, that any decision upon the degree of authority to which any new instrument may be entitled, as being a statute or not, is entirely disclaimed.

2. Other matters of a parliamentary form and character have been recognized at different periods of our history, as appearing to have legislative authority. It has been observed by Lord Coke, that “Acts of Parliament are many times in the form of charters or letters patent;”1 and many such have been inserted in all editions of the statutes: and that there are “many acts of Parliament that be in the rolls of Parliament and never yet printed:”2 In the report also of the select committee of the House of Commons, in the year 1800, upon the subject of the public records, it is stated, that many statutes and ordinances in the rolls of Parliament are not inserted in the printed statute book; and it is certain that many Acts and matters not found on any statute roll, nor contained in any printed edition of the statutes, are found on the Parliament Rolls, which appeared to have received the threefold assent of King, Lords, and Commons, or to have such qualities, as have been allowed by courts of law to imply that assent.3

With a view therefore to a consideration of the question, whether matters of this nature should be comprehended in the present work, lists of a great number of them were prepared, not only from the Parliament Rolls, but also from other records, particularly the Close Rolls and Patent Rolls, which were examined for the purpose with great care and diligence, and transcripts and collations of many of them were made for the examination of the Commissioners. In the progress of this labour, however, it appeared that the matters which came within the description above mentioned, were so numerous, that the indiscriminate insertion of all of them would constitute a mass, the very bulk of which would prove inconvenient. But, what was of still greater importance, upon examination, it became with respect to many of them, a subject of discussion, from which no certain conclusion could be derived, to what extent they had in fact received sanction, and whether therefore they were, in any degree, entitled to be considered as of legislative authority.1 It was obvious, at the same time, that to have made a selection only of such matters as in the opinion of the commissioners were the least doubtful, was in effect encountering the same difficulty only in a smaller degree; and the sources, from which they were to be taken, not being in themselves conclusive evidence,2 that the matters contained in them were statutes, the selection in each instance necessarily could be nothing more than the result of private judgment; without the authority of that “general received tradition,” which, as Lord Hale observes,3 attests and approves those statutes which are not properly extant of record.

Acts also which received the royal assent, and which were entered only on the Parliament Roll, and not on the Statute Roll, have been frequently termed Ordinances; and various distinctions have ineffectually been attempted to be made between an ordinance and a statute, with regard to the nature and validity of each respectively:4 but whatever has at any time been written on this subject, is contradictory and indistinct; and in the reign of Charles I., the information on this point, then of some importance, appears to have been very unsatisfactory.5

From these considerations therefore, upon mature deliberation, it has been deemed advisable that this collection should include all such instruments as have been inserted in any general collection of statutes printed previously to the edition by Hawkins; with the addition, only, of such matters of a public nature, purporting to be statutes, as were first introduced by him or subsequent editors, and of such other new matters of the like nature, as could be taken from sources of authority not to be controverted; namely, Statute Rolls, inrollments of Acts, exemplification, transcripts by writ, and original Acts.

In the 31st year of Henry VIII. the distinction between Public Acts and Private Acts is for the first time specifically stated on the enrollment in Chancery. No private Acts passed after that date have been admitted into this collection: It has been thought sufficient to notice them, by the insertion of their titles only.

Sect. II.

Of the Sources from whence the several Matters have been taken.

1. The sources from which the materials have been taken for this collection, are necessarily of a different character and description in different periods of our history.

The earliest statutes contained in the several collections are those of Henry III.; but no parliamentary record of statutes is now known to be extant, prior to the Statute Roll 6, Edw. I. To this interval nevertheless belong the statutes of Merton, Marlborough, Westminster the First, and several others, always included in the printed editions. For this early period, therefore, recourse must be had to inferior sources for the text of our statute law: and even in subsequent times, there is not only an interruption in the series of Statute Rolls, namely, after 8 Hen. VI., until 23 Hen. VI., inclusive, during which the like recourse must be had to sources of an inferior degree of authority; but the Statute Rolls themselves do not, within their own period, contain all the instruments which have been acknowledged as statutes. After 8 Edw. IV. the Statute Roll is not preserved; after 4 Hen. VII. it ceased to be made up; and ultimately it was succeeded, for practical purposes by the enrollment in chancery; though during a short period the Statute Roll and the enrollment appear to have been contemporary.

The materials for the several periods during which no Statute Rolls or parliamentary records exist, can only be collected from records on which copies or extracts of statutes have been entered; or from other manuscripts not on record; or, in default of other authority, from the oldest printed editions in which such matters were first inserted. With respect to entries of record, in these periods, that has been judged to be the most authentic evidence of a statute, which has been preserved as a record or authentic copy from antient times, in the custody of the highest courts authorized for that purpose. Such are copies or extracts of particular statutes found in the Close, Patent, Fine, and Charter Rolls, being records of chancery. Such also are the Red Books of the Exchequer of Westminster, and Dublin. On failure of these records, recourse has, of necessity, been had to manuscripts not of record preserved in the custody of courts of justice, public libraries, or other public repositories. Such are some antient books of statutes in the exchequer at Westminster, in the town clerk’s office, London, in the several cathedrals, in the public and other libraries of the several universities of Oxford, Cambridge, and Dublin, and in the British Museum: When all these sources have proved deficient, and in such case only, a copy has been admitted, from the oldest printed edition, with various readings from subsequent printed editions.

During the periods in which Statute Rolls or other parliamentary records do actually exist, the authentic evidence of statutes (and of other proceedings in Parliament, before the commencement of the journals,) must be searched for upon the Statute Rolls; Inrollments of Acts; exemplifications of such Statute Rolls or enrollments; transcripts by writ into chancery for the purpose of such exemplifications; original Acts; and Rolls of Parliament.—These are the only authentic sources from whence, during those periods, a knowledge can be obtained of the different occurrences in Parliament, whether important or minute. With the exception of some rolls containing proceedings in Parliament from 18 to 35 Edw. I., which are in the Chapter House at Westminster, such of the original Statute Rolls, inrollments of Acts, and Parliament Rolls, as are still preserved, are deposited in the Tower of London, or at the Chapel of the Rolls, places appropriated to the custody of the records of the King’s chancery, which has ever been deemed the proper repository of the statutes of the Kingdom.

II. The Nature and qualities of the several records and manuscripts from whence all the statutes, as well those of an earlier as of a later period, have been taken for insertion or collation in this work, and the place where such original record and manuscript is kept, will more fully appear from the following detail.

1. Statute Rolls.—These are records of chancery, of the highest authority, on which were entered the several statutes, when drawn up in form, for the purpose of being proclaimed and published; these statutes being framed upon such original petitions and answers, or entries thereof on the Parliament Rolls, as related to public concerns. The earliest Statute Roll now known to exist, is that which commences with the statute of Gloucester, 6 Edw. I. ad 1278. From that period to 8 Edw. IV. inclusive, ad 1468, with an interruption after 8 Hen. VI. until 23 Hen. VI. inclusive, the statutes are preserved in the Tower of London in a regular series, on 6 separate rolls, each roll consisting of several membranes tacked together. The contents of each roll are as follows, viz:

Of the Great Roll; statutes from 6 Edw. I. to 50 Edw. III. But this roll does not contain all the statutes which have been printed as of that period.1

Second Roll; statutes temp. Ric. II. there is also a separate roll, of one membrane, containing a duplicate of the statutes 21 Ric. II.

Third Roll; statutes temp. Hen. IV. and V.

Fourth Roll; statutes 1 Hen. VI. to 8 Hen. VI.

Fifth Roll; Statutes 25 Hen. VI. to 39 Hen. VI.

Sixth Roll; Statutes 1 Edw. IV. to 8 Edw. IV. This is the last Statute Roll now known to exist, none of a later date having been found.

These have ever had the reputation annexed to them of being Statute Rolls. Some of them are cited by that name upon the Close and Patent Rolls; and referred to by great law writers, Lord Coke, Lord Hale, and the editors of statutes, Pulton, Hawkins, Cay, &c. There is evidence also that Statute Rolls have existed of a subsequent time; for the statutes after 8 Edward IV., until 4 Henry VII. inclusive, are inserted in the early printed editions in a form manifestly copied from complete Statute Rolls; and they are found in the like form in Lib. XI. in the exchequer at Westminster, MS. Cott. Nero C. I., in the British Museum, and in several other manuscript collections. But there is reason to conclude, that the making up of the Statute Roll entirely ceased with the session 4 Hen. VII., as no such roll of a later date, nor any evidence thereof, has been discovered; and it is observable that in the next session, 7 Hen. VII., public Acts were, for the first time, printed from the several bills passed in Parliament, and not as part of one general statute drawn up in the antient form.

2. Inrollments of Acts of Parliament.—These are records containing the acts of Parliament certified and delivered into chancery. They are preserved in the Chapel of the Rolls, in an uninterrupted series from 1 Ric. III. to the present time; except only during the Usurpation. By the officers of chancery they are commonly termed “Parliament Rolls;” and they are variously endorsed, some with the Phrase “Inrollments of Acts.” From 1 Ric. III. to 3 Car. 1. inclusive, they comprehend several other proceedings of Parliament besides the Acts enrolled; (sometimes for instance, the commissions for giving the royal assent to bills are found entered on them;1 ) thus partaking of the qualities of rolls of Parliament, and including nearly the same contents: until, the miscellaneous matters disappearing by degrees, the Acts inrolled only occur: After 5 Hen. VII. they may be considered in effect, as coming in the place of the Statute Roll. To 25 Hen. VIII. they contain all Acts, public and private, which were passed in every session, each with an introductory and concluding form of their being presented and assented to: From 25 Hen. VIII., to 35 Eliz. several of the private Acts, and afterwards to 3 Car. 1. all the private Acts, are omitted, their titles only being noticed. From 16 Car. 1. to 31 George II., the inrollments contain nothing but public Acts, and the title of the private Acts, with the several forms of assent, without any other parliamentary matter. And from 32 George II. their contents are the same, with the omission of the titles of the private Acts.

At present, after all the public-general Acts of the session have received the royal assent, a transcript of the whole is certified by the clerk of the Parliaments, and deposited in the Rolls Chapel: On that occasion the clerk of the Parliaments sends the roll, or rolls, containing such transcript, apparently in a complete state, engrossed on parchment, signed, and certified by him as clerk of the Parliaments; and it is thereupon arranged with the other records; and thus becomes the inrollment of the statutes of that session of Parliament. For this transcript the clerk of the Parliaments is paid every session out of the Hanaper, on a receipt by the clerk of the records in the Rolls Chapel, stating that the roll is delivered there.

It may be further observed upon this subject, that the proceedings which took place in the House of Lords in Ireland in 1758, for the better preservation of the records of Parliament in that kingdom, where the constitution and law of Parliament were in all essential points conformable to those of England, afford a strong illustration of the practice of certifying statutes and recording them in chancery.1

3. Exemplifications; and transcripts by writ.—Exemplifications are copies sent out of chancery under the King’s seal; either to sheriffs of counties and cities in England, or to the Chancellor or Chief-Justice of Ireland, or to other courts or places, for the safe custody and for the proclaiming and confirming of the statute; or in other cases for affording authentic evidence of the statute. In the Tower of London, copies of the statutes 9, 10, 11, 14, 15, 18 and 20 Hen. VI. (for some years to the number of two, three, six, or seven copies) are preserved on separate skins of parchment, which appear to have been prepared as exemplifications, for the purpose of proclaiming the several statutes; and these serve to supply the deficiency of the Statute Roll during that period. One similar copy of the statutes 13 Ric. II. is also preserved in the Tower.

It is not irrelevant to remark, that an exemplification differs from an original grant under the great seal, or an original act of Parliament, in this; that an exemplification is a copy, and can be made only from the record. At the present day every exemplification, being first made out in form by the proper officer, is examined with the record by two masters in chancery, who not only subscribe a certificate on the exemplification, of their having examined it with the record, but also sign a certificate to that effect, addressed to the Lord Chancellor, on a paper called “The Docket,” which is left with him before the exemplification is allowed to pass the Great Seal.

Transcripts by writ were copies sent into chancery in answer to the King’s writ or mandate, calling for a copy of the statute from the officer in whose custody it was preserved. A transcript of the statutes of Wales, 12 Edw. I. is preserved in the Tower of London, with the writ annexed, by which that transcript was required from the exchequer at Westminster, where it was entered of record, according to the usage which formerly prevailed of sometimes inrolling statutes in courts of justice. Transcripts and exemplifications of statutes have also been occasionally found in various other depositories.

4. Original acts.—These, from the 12th year of Henry VII. to the present time, with some interruption, particularly in 14 & 15 Hen. VIII. are preserved in the Parliament office. Some petitions and bills previous to 12 Hen. VII. are in the Tower of London, but in no regular series. The original Acts in the Parliament office consist of the bills as ingrossed after being brought into Parliament, and in the state in which, after such ingrossment they passed both Houses, and received the royal assent. Each Act is on a separate roll numbered; and reference is made to them from a calendar kept of the Acts of each session in the Parliament office. These are the materials from which the clerk of the Parliaments makes up the inrollments of public Acts sent by him into chancery and preserved there; or certifies Acts into chancery, when required so to do.

As to the comparative authority of the original Acts and the inrollments in chancery, it is to be observed, that all the original Acts are separate from each other; and that they are frequently interlined, defaced, erased, and in many instances, with great difficulty intelligible: the inrollment in chancery is always fair and distinct; and the Acts are entered in a regular series, on one roll or subsequent rolls, as part of the proceedings of a Parliament, the time of the holding of which is stated at the beginning of the roll. In modern practice, if any doubt arises as to the correctness of the inrollment in chancery, application is made to the clerk of the Parliaments; and the original Act is thereupon produced, and compared with the inrollment, and an amendment, if requisite, is made in the inrollment accordingly.

5. Rolls of Parliament.—These contain entries of the several transactions in Parliament; when complete they include the adjournments, and all of the common and daily occurrences and proceedings from the opening to the close of each Parliament, with the several petitions or bills, and the answers given thereto, not only on public matters, on which the statute was afterwards framed, but also on private concerns. In some few instances the statute as drawn up in form is entered on the Parliament Roll; but in general the petition and answer only, are found entered; and in such case the entry of itself furnishes no certain evidence, that the petition and answer were at any time put into the form of a statute.1

Copies of petitions in Parliament and answers thereto, as early as 6 Edw. I. and in various years of Edw. II. and Edw. III. are among Lord Hale’s manuscripts in the library of Lincoln’s Inn. Rolls containing pleas, petitions and answers, and other proceedings in Parliament, from 18 to 35 Edw. I. and one of the petitions in Parliament 7 Hen. V., are in the Chapter House at Westminster. A book of inrollment, called Vetus Codex, in which are entered proceedings in Parliament, from 18 Edw. I. to 35 Edw. I. and in 14 Edw. II. is in the Tower of London.2 In that repository also are preserved rolls containing pleas and other proceedings in Parliament, between 5 Edw. II. and 13 Edw. III.; rolls of Parliament of 9 Edw. II.; 4, 5, and 6 Edw. III.; and 13 Edw. III.; and from thence, to the end of the reign of Edw. IV., in a regular and nearly uninterrupted series. After that time the rolls of Parliament are for a certain period supplied by the inrollments of Acts preserved in the Chapel of the Rolls, and finally by the journals of the two Houses of Parliament.3

6. The Close, Patent, Fine, and Charter rolls, among a variety of grants, recognisances, and other miscellaneous matters, concerning the state of the realm, and the rights of the Crown, recorded in them, include entries of statutes, and some instruments having direct reference to statutes wherein such statutes are recited at length. These rolls are kept at the Tower, from the beginning of the reign of King John to 22 Edw. IV., and from the reign of Edw. V., to the present time at the Chapel of the Rolls.

7. Books of record, containing entries of statutes and parliamentary proceedings.—Of this sort is, the Red Book of the Exchequer of Westminster, some of the early part of which was compiled by Alexander de Swereford, first a clerk and afterwards a baron of the exchequer, in the reign of Henry III. It seems afterwards to have been considered and used as an authorized repository by the court itself; and contains entries and inrollments of many charters and antient acts of Parliament, as well as other instruments relating to the King and the rights of the Crown, from the time of William the Conqueror to the end of Edw. III.: the originals of several of these Acts and instruments are preserved in the Tower of London, and in the Chapter House at Westminster, with references to inrollments in this book, or to the circumstance of the Act being sent into the exchequer. The Red Book of the Exchequer at Dublin is considered as of the same authority: it contains entries of Magna Carta, 1 Hen. III. especially granted to the people of Ireland; of the Statute of Westminster the first, 3 Edw. I. (which is not to be found on the Great Roll of statutes in the Tower of London, being prior in date to the present commencement of that roll,) and also of the Statutes of Gloucester, 6 Edw. I. de Viris Religiosis, 7 Edw. I., and Westminster the second, 13 Edw. I., agreeing in general to the text of those statutes on the Statute Roll in the Tower. There is reason to conclude that these statutes were entered in the Red Book at Dublin, from an exemplification sent over from England in the 13th year of Edw. I., as is noticed in a memorandum on the Close Roll of that year. A register book marked “A” preserved at the Chapel House at Westminster, as in the custody of the treasurer and chamberlains of the exchequer, contains entries or inrollments made in the time of Edw. I. Among these are the Statute of Gloucester, 6 Edw. I., and the Statute of Westminster the second, 13 Edw. I. The originals of the several statutes and instruments, it is stated in the register, were deposited in certain chests in the Chapter House; but these originals had not been discovered.

8. Books and manuscripts not of record, containing entries or copies of statutes, are very numerous. In the court of exchequer at Westminster, are three books, marked IX., X., XI. Book X. contains many of the earlier statutes previous to Edw. III.: Books IX., XI. contain the statutes from 1 Edw. III. to 7 Hen. VIII.

In the town clerk’s office, at the Guild Hall of the city of London, are several manuscript volumes; in which, among other matters chiefly relating to the laws and customs of the city of London, are entries of many of the antient statutes previous to Edw. III. The greatest number, and the earliest copies are in two volumes, distinguished by the appellations Liber Horn, and Liber Custumarum. It appears from internal evidence that Liber Horn was compiled about the year 1311, and Liber Custumarum not long after the year 1320: Liber Horn is rendered valuable by having been in many instances corrected, in a later hand writing, from exemplifications of statutes sent under seal to the sheriffs of London. In two other manuscripts one called Liber de Antiquis Legibus and the other Transcriptum Libri Albi, copied from a volume originally compiled in the mayoralty of Richard Whityngton ad 1419, 7 Hen. V., are occasional entries of a few antient statutes. In other volumes marked G. H. and I. are entries of some of the statutes of Edw. III., Richard II., Henry IV., and Henry V.; many of them appearing to have been made from exemplifications sent to the sheriffs of London for proclamation.

Of manuscript collections of statutes, preserved in public repositories, the greatest number collected together in any one place, is to be found in the British Museum. They are distinguished as being of the Cottonian or Harleian Collection; from the royal library; Donation manuscripts; and Lansdowne manuscripts. The Cottonian manuscripts Claudius D. II. and Vespasian B. VII. were resorted to by Hawkins and Cay, for copies of statutes previous to Edw. III.; and Nero C. I. for statutes of Henry VI. and Edw. IV. not found at the Tower.

In the Bodleian library at Oxford, are Rawlinson’s, Hatton’s, and Laud’s manuscripts. Among the latter is a roll of statutes, No. 1036, consisting of eleven small membranes of parchment united together; not much more than four inches wide; but each being two feet or more in length. This roll appears to have been written in the time of Edw. I.: it contains no statute later than the Articuli Super Cartas, 28 Edw. I.

At Cambridge several manuscript collections of statutes are preserved in the library of the University and in Trinity College Library. In Corpus Christi or Bene’t College Library are the manuscripts bequeathed to the College by Archbishop Parker.

Chartularies or registers, preserved in several cathedrals, contain copies of some of the old statutes. Such are the Black Book of the cathedral of Christ Church, Dublin, written between the years 1280 and 1299, and register A in Gloucester cathedral, compiled in 1397.

In Lincoln’s Inn Library, are Lord Hale’s manuscript copies of rolls and petitions in Parliament: in the Inner Temple Library, Mr. Petyt’s collection of manuscripts among which are several volumes of the statutes. In many other public libraries also manuscript collections of statutes are preserved.

Of the several manuscripts not of record, an extensive and careful examination has been made in preparing for the present edition: and it has been ascertained that, although they differ from each other considerably in their degrees of antiquity and correctness, yet the credit of no single one is entirely to be relied on; for scarcely any manuscript has yet been discovered, in any repository, in which there are not some material errors perverting or altogether destroying the sense of the text. In some instances, however, such as Cott. Claud. D II. in the British Museum, and M m. v. 19, in the library of the University of Cambridge, several of the instruments contained in the manuscripts purport to be examined by the roll. In Liber Horn, in the town clerk’s office, London, several are marked as examined ‘per Ceram;’ ‘per Ceram Gildaule;’ ‘per Statutum Gildaule London in Cera;’ ‘cum brevi cum eisdem in Gildaula adjunct’; all which signify that the entry in the book has been examined with an exemplification of the statute or instrument under the Great Seal, sent to the mayor and sheriffs of London with or without a writ for publication thereof. The Rawlinson Manuscript No. 337 in the Bodleian Library at Oxford, and the Harleian Manuscript No. 5022 in the British Museum, refer to the inrollment on the Statute Roll, of several articles inserted in those volumes, but do not profess that the articles themselves were examined by that roll.

III. On a mature consideration of all the circumstances before stated, the following Rules of Preference have been adhered to, in the use of the several sources for the text, and for various readings of the statutes, in the present collection.

During the periods in which Statute Rolls exist, such Statute Rolls have been considered and used as the highest authority for the statutes contained in them: namely, the statutes 6 Edw. I. to 8 Edw. IV.; with the omission of the statutes 9 to 23 Hen. VI. both inclusive.

But for such statutes as, during the period of the existence of the Statute Rolls, do not appear on those rolls; and for statutes made in any period of which the Statute Roll is not now in existence namely, previous to 6 Edw. I.; after 8 and before 25 Hen. VI.; and after 8 Edw. IV.; and also for the correction of manifest errors or omissions in the text, whether taken from Statute Rolls or elsewhere the following sources have been recurred to in regular gradation; preference being given to them according to the following order, but all being used and collated, where necessary: viz. 1. Inrollments of Acts.—2. Exemplifications and transcripts.—3. Original Acts.—4. Rolls of Parliament.—5. Close Patent, Fine and Charter rolls.—6. Entries and books of record.—7. Books and manuscripts not of record.—And finally, 8. The printed copies; the earliest of which was not published until more than 200 years subsequent to the present commencement of the Statute Rolls.

The following reasons for preference among manuscripts not of record have been adopted: 1. Their professing to be authentic copies from any records, exemplifications, or transcripts: 2. Their age; the oldest being on the whole the most worthy of credit: 3. The uniformity and regularity of the series of statutes, and instruments in each collection: 4. Their having been already printed and received in use, as evidence of the text of statutes; or, if not so printed, their according with the printed copies, and with each other, so that when the manuscripts differ, the majority should prevail: 5. Certain manuscripts have been holden to be of superior authority upon some particular subjects, having special connection with the places in which they are preserved: Such as the books preserved in the exchequer, for statutes relating to that court, or to accounts, or to money; books at the town clerk’s office, London, relating to the assises of bread and ale, weights, and measures, &c: 6. In all manuscripts some articles are found much more correct than others; a judgment has therefore frequently been formed from internal evidence in favour of a particular statute or reading, although the manuscript in which such statute or reading were found, might not, in other instances, be entitled to preference: 7. Where it has happened that several manuscripts agreed in the text or reading of any instrument, and were so equal in their claims for preference, that it was entirely matter of indifference which should be chosen for a source of extract or quotation, that manuscript has been used which has been quoted or extracted from for other purposes, in preference to one not before quoted; and one which has already been printed from, in preference to one which has not.

CHAPTER IV.

Sec. I.

Of the Original Language of the Charters and Statutes.

The language of the charters and statutes, from the period of the earliest charter now given, 1 Henry I. to the beginning of the reign of Henry VII. is Latin or French. From that time it has been uniformly English. The petitions or bills on which the statutes were founded, began to be generally in English early in the reign of Hen. VI.

All the Charters of Liberties, and of the Forest, from 1 Hen. I. to 29 Edw. I. (with the exception after mentioned), are in Latin; but translations of some of them into French, are found in various collections. In D’Achery’s Spicilegium1 there is a French translation, as it is called by Blackstone, of the Charter of King John; for it is doubtful whether that charter was ever promulgated in French in this kingdom. Some early manuscripts2 contain French translations of the two charters of 9 Hen. III., and of the Charters of Inspeximus and Confirmation in 25 and 28 Edward I., though these latter appear on the Statute and Charter Rolls in Latin. The charter dated 5 Nov. 25 Edw. I.3 is in French: as is also the duplicate of that charter dated 10 Oct. and entered on the Statute Roll 25 Edw. I.4

The statutes of Henry VIII. are almost entirely in Latin. Some legislative matters, not in the printed collections, are entered on the Patent Rolls in French.5

The statutes of Edward I. are indiscriminately in Latin or French; though the former language is most prevalent. But the Statute of Gloucester 6 Edward I. which on the Statute Roll is in French, appears in many contemporary manuscripts in Latin. In several manuscripts, particularly Register A. in the Chapter House at Westminster, this statute is given at length both in Latin and French. On the other hand the statute of Westminster the second, 13 Edw. I., which is in Latin on the roll, appears in many manuscripts in French; and Chapter 34 of this latter statute, as to violence against women, which on the roll appears in French, is given, like the rest of the statute, in Latin, in several manuscripts.1 The French Chapter, 49, as to champerty by Justices, is omitted in the Tower Roll, and in many other copies, which give the statutes in Latin, but is found in the copies which give the statute in French.2

The statutes of Edward II. are, like those of Edward I., indiscriminately in Latin or French: but the latter language prevails more than in the statutes of Edward I.

The statutes of Edward III. are more generally in French than those of any preceding king: yet some few are in Latin. The statutes of Richard II. are almost universally in French; those of the sixth and eighth years are in Latin. The statutes of Henry IV., with the exception of chapter 15 of the statute 2 Hen. IV. which is in Latin, are entirely in French; as are those of Henry V., with the exception of the short statutes 5 and 7 Henry V. which appear in Latin.

The earliest instance recorded of the use of the English language in any parliamentary proceeding, is in 36 Edw. III. The style of the roll of that year is in French as usual, but it is expressly stated that the causes of summoning the Parliament were declared “en Englois,”3 and the like circumstance is noted in 37 and 38 Edw. III.4 In the fifth year of Richard II.,5 the Chancellor is stated to have made ‘un bone collacion en Engley’s (introductory, as was then sometimes the usage, to the commencement of business) though he made use of the common French form for opening the Parliament. A petition from the “Folk of the Mercerye of London,” in the 10th year of the same reign,6 is in English; and it appears also, that in the 17th year1 the Earl of Arundel asked pardon of the Duke of Lancaster by the award of the King and Lords, in their presence in Parliament, in a form of English words. The cession and renunciation of the Crown by Richard II. is stated to have been read before the estates of the realm and the people in Westminster Hall, first in Latin and afterwards in English, but it is entered on the Parliament Roll only in Latin.2 And the challenge of the Crown by Henry IV. with his thanks after the allowance of his title, in the same assembly, are recorded in English; which is termed his maternal tongue.3 So also is the speech of Sir William Thirnyng, the Chief Justice of the Common Pleas, to the late King Richard, announcing to him the sentence of his deposition, and the yielding up, on the part of the people, of their fealty and allegiance. In the sixth year of the reign of Henry IV.4 an English answer is given to a petition of the commons, touching a proposed resumption of certain grants of the Crown, to the intent the King might the better live of his own. The English language afterwards appears occasionally, through the reigns of Henry IV. and V.5

In the first and second, and subsequent years of Hen. VI. the petitions or bills, and in many cases the answers also, on which the statutes were afterwards framed, are found frequently in English; but the statutes are entered on the roll in French or Latin. From the 23rd year of Hen. VI. these petition or bills are almost universally in English, as is also sometimes the form of the royal assent: but the statute continued to be inrolled in French or Latin.6 Sometimes Latin and French are used in the same statute, as in 8 Hen. VI.; 27 Henry VI.; and 39 Henry VI. The last statute wholly in Latin on record is 33 Henry VI.; the last portion of any statute in Latin is 39 Henry VI.; chapter 2.

The statutes of Edward IV. are entirely in French. The statutes of Richard III. are in many manuscripts in French, in a complete statute form; and they are so printed in his reign and that of his successor. In the earlier English editions a translation was inserted, in the same form: but in several editions, since 1618, they have been printed in English, in a different form, agreeing, so far as relates to the Acts printed, with the inrollment in chancery at the Chapel of the Rolls. The petitions and bills in Parliament, during these two reigns, are all in English.

The statutes of Henry VII. have always, it is believed, been published in English; but there are manuscripts containing the statutes of the first two Parliaments, in his first and third year, in French.1 From the fourth year to the end of his reign, and from thence to the present time, they are universally in English.

Attempts have been made by many learned persons to explain this variety of languages in the earlier periods of our legislation; and some have referred the preference of the one language or of the other, to the operation of particular causes.2 Nothing, however, is known with certainty on this subject; and at the present day it is utterly impossible to account, in each instance, for the appearance of the statute in French or in Latin. It seems on the whole to be highly probable that for a long period of time, charters, statutes, and other public instruments were drawn up indiscriminately in French or Latin, and generally translated from one of those languages into the other,1 before the promulgation of them, which in many instances appears to have been made at the same time in both languages.2

It is matter of curiosity to observe, that the use of the French language in statutes was preserved rather longer in Ireland than in England. The Statute Roll of the Irish Parliament, 8 Hen. VII., preserved at the rolls office in Dublin, is in French; on the Statute Roll of the two next Parliaments of Ireland, 16 and 23 Hen. VII., the introductory paragraphs stating the holding of the Parliament, &c. are in Latin; after which follows an Act or chapter in French, confirming the liberties of the church and the land: and all the other Acts of the session are in English.

CHAPTER V.

Section II.

Of the Methods Successively Adopted for Promulgating the Statutes, Before and Since the Union of Great Britain and Ireland.

The Promulgation of the Statutes, which formerly took place within the realm of England, as well as in Scotland and Ireland, has been wholly superseded by the practice of modern times. Before the introduction of printing, the publication of the statutes of England was made by means of exemplifications thereof, sent to the sheriffs, under the Great Seal, out of chancery, with writs annexed, requiring the proclamation and publication of the same by them,3 and sometimes also directing copies to be made and distributed, and the sheriffs to return what was done by them thereupon. The earliest statutes were published in this manner; as appears not only by copies of the writs subjoined to the records and manuscripts of the respective statutes, of the thirteenth century, but also by original writs still preserved in the Tower of London.

In England printed promulgations of the statutes, in the form of sessional publications, began in the first year of Ric. III. ad 1484, very recently after the introduction of printing; and in consequence thereof, such exemplifications and writs as are above mentioned, were soon altogether discontinued;1 yet the statutes themselves, continued nevertheless to be inrolled in chancery; and some of the earliest sessional publications appear by their form to have been printed from a Statute Roll. All the original bills and Acts now extant in the Parliament office, are some years subsequent in date to the commencement of the printed sessional publications of the statutes; and it is evident, from some of those printed sessional publications in the time of Hen. VII. whereof the contemporary bills and Acts are still preserved, that such bills and Acts, though concurrent in time were not then uniformly used as the original text for such publications. The sessional publications are at present, and have for a long series of years been printed entirely from original Acts in the Parliament office.2

In Scotland it was the exclusive privilege and official duty of the Lord Clerk Register to enter the acts of Parliament in the proper record, and to give authentic copies of them to the sheriffs, magistrates of boroughs, and such as might demand them. A precept is extant for proclaiming and publishing the statutes of Robert I. in the year 1318; and there exists also a parliamentary ordinance made in the reign of David II., 1366, by which the Acts of that Parliament are directed to be sent under royal seal to each sheriff to be by him publicly proclaimed. The earliest printed publication of statutes in Scotland took place in the year 1540-1.

In Ireland the promulgation of such statutes as were passed in England and transmitted to Ireland, was regularly made by means of a transcript sent under seal from England, with a writ directed to the Chancellor of Ireland, requiring the same to be kept in the chancery of that Kingdom, to be enrolled in the rolls of the said chancery, then to be exemplified under the Great Seal of Ireland, and sent unto and proclaimed in the several courts and counties throughout the kingdom. Sometimes the writ was to the justices, in Ireland, simply requiring proclamation.

With respect to the statutes made in Ireland, provisions are contained in several Acts for the special proclamation of such Acts, so that the penalties inflicted by them should not be incurred until after such proclamation.1 It appears also that it was usual to proclaim the statutes in general by the king’s writ, made out by the clerk of the Parliament. Sessional publications of the acts did not take place in Ireland before the reign of Charles I.; and such publications were not continued regularly and uniformly until after the Revolution.

In Great Britain the public inconvenience experienced from the defective promulgation of the statutes, led to the adoption of new measures in the year 1796; by which, the Acts printed by the King’s printer, whose authority had been long deemed sufficient to entitle his printed copies to be received in evidence, in all courts of law,2 were distributed throughout the kingdom as speedily as possible after they had received the royal assent: and the experience of the good effects of those measures led soon afterwards to their execution in a much greater extent.

After The Union of Great Britain and Ireland, a select committee of the House of Commons was appointed in the first session of the United Parliament, to consider of the most effectual means of promulgating the statutes of the United Kingdom; upon whose report resolutions for that purpose were adopted by the Commons, and having been agreed to by the Lords, they were presented to his Majesty by a joint address of both Houses; and his Majesty was thereupon pleased to give directions accordingly.

By the tenor of these resolutions, his Majesty’s printer was authorized and directed to print not less than five thousand five hundred copies of every public general Act, and three hundred copies of such local and personal Act as were printed; the public general Acts to be transmitted as soon as possible after each bill should receive the royal assent, to the members of both houses of Parliament, the great officers and departments of state, public libraries, courts of justice, sheriffs, municipal magistrates, and resident acting justices of the peace, throughout Great Britain and Ireland; according to a prescribed mode of distribution; with a direction that every chief magistrate and head officer of every city, borough, or town corporate in England and Ireland, and of every royal burgh in Scotland, and every sheriff, clerk of the peace, and town clerk in the United Kingdom, receiving such copies should preserve them for the public use, and transmit them to his successor in office: and this mode of authenticating and promulgating the statutes is now carried into execution, throughout every part of the United Kingdom.

PART II.

THE COURTS, THEIR ORGANIZATION AND JURISDICTION

• 27. The Courts as Established under Edward I.Frederick Andrew Inderwick.
• 28. The History of the Court of Chancery.George Spence.
• 29. The Ecclesiastical Courts and Their Jurisdiction.William Searle Holdsworth.
• 30. The History of the Admiralty Jurisdiction.Thomas Lambert Mears.

27.

THE COMMON LAW COURTS AS ESTABLISHED UNDER EDWARD I1

By Frederic Andrew Inderwick2

IN 1196, under Richard I., there were numerous appointments of judges to the Curia Regis, including those of Hubert Walter, Archbishop of Canterbury, the Bishops of London and Rochester, and several laymen; and similar appointments continued to be made, both to the Curia Regis and to the Justices Itinerant, until the 52nd Henry III. (ad 1268), when the system was again altered.

In the meantime, however, dissatisfaction had arisen with the proceedings of the Curia Regis itself. This Court followed the King not only theoretically but actually. Where the King went to hold a Court there also went the Curia in both departments; the Curia Regis with the Justiciar, the Chancellor and the Justices, and the Exchequer with the Treasurer, the Chamberlain, the officers and the treasure. And thus the King in his progresses was accompanied not only by his great and smaller officers of State, but by carts and wagons loaded with bullion,3 with gold and silver plate, with jewels, and all the personal treasures of the King not deposited in the Abbey or in the treasury at Winchester. Numerous hanapers, or hampers of plaited rushes or straw, formed part of the baggage, and held the writs, the records, and the tallies necessary for carrying on the business of the courts. And thither in the wake of the King followed the suitors whose plaints waited determination in the King’s Court. These perambulations of the monarch reached their culminating point in the reign of King John. When he was out of the kingdom, Archbishop Hubert Walter acted as Chancellor and sat in the King’s place at Westminster. When he was at home, he was in constant progress through the country, and in the year 1211 it is said that he sat at no less than twenty-four separate towns.1 To all these resting-places the unhappy suitors followed, or lost the chance of their causes being tried. And accordingly it was provided, by the 17th clause of Magna Carta, that for the future, common pleas, or causes between party and party, as distinguished from Crown and Revenue cases, should not follow the King in his wanderings, but should be heard and determined in some ascertained and well-known place. “Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.” This ascertained place was Westminster Hall, and the Court of Common Pleas retained the name, down to its abolition as a separate jurisdiction in 1875, of The Court of Common Pleas at Westminster.

Here then we have the origin of the Court of Common Pleas, for although that Court was not actually constituted at the time of King John, nor was there any prohibition against common pleas being heard by the Curia and by the Exchequer, as had hitherto been the practice, yet the provision of the Charter involved the continued retention in London, or in the ascertained place to be afterwards fixed, of a sufficient number of justices and barons to compose a court for the hearing of the subjects’ causes. And thus it frequently happened that one division of the Curia was sitting at Westminster while another division was travelling about the country, either with or without the King, as the case might be; the Justiciar being sometimes with the judges in the county and sometimes with the judges in London.1 Numerous instances also occurred where, the Justiciar being absent, questions of law were left for him to decide on his arrival, or were sent to be discussed before him at Westminster. One of the questions so reserved was whether on proof of his ancestor’s absence for twenty years, an heir at law could enter upon the land of the missing owner, and take possession of the freehold, on the presumption that his ancestor was dead.2

Henry III. confirmed the Charter of his father in this as in other respects, and instituted a Court of Common Bench with duly qualified justices to sit perpetually at Westminster to hear causes between parties and to have exclusive jurisdiction in regard to certain claims. It had no criminal jurisdiction, did not follow the Sovereign in his peregrinations, and gradually absorbed all the private business of the country. In 1235, Thomas de Muleton3 was appointed Chief Justice of the Common Bench, being the first Chief Justice of either of the Courts of Common Law, and from this period personal actions gradually ceased to be heard either in the Curia Regis or in the Exchequer. To enforce this procedure Edward I.,4 after the abolition of the Curia, expressly declared that the hearing of common pleas in the Exchequer or elsewhere out of the Common Bench, was contrary to the provisions of the Great Charter.

The natural dissatisfaction which was felt with the Curia Regis rapidly extended to the appointment of Chief Justiciar. The position of this great officer of State was that of a politician and a soldier as well as, or perhaps more than, that of a creator and administrator of the law. Many statesmen of great eminence had held the post. Odo of Bayeux was the first, Hubert de Burgh was among the last. Henry, Duke of Normandy, afterwards Henry the Second, during the later years of King Stephen, was Chief Justiciar and sat regularly in the court. Henry III. also sat in person and delivered a judgment, which is reported.1 Ranulph de Glanvil, and possibly Henry de Bracton, also occupied the post of Chief Justiciar. Latterly, however, the office had fallen into less competent hands, and when the latter years of King Henry III. showed the scandal of two Chief Justiciars, one appointed by the king and one appointed by the barons, professing to exercise judicial functions at one and the same time as they were leading armies against each other in the field, it was felt that the moment had arrived when the office, with its inconsistent combination of statesman, soldier, lawgiver, and judge, should be brought to an end. Philip Bassett and Hugh le Despencer were the two so contending, and after the death of le Despencer on the field of Evesham, in 1265, and the subsequent resignation of Bassett, the King’s nominee, the Curia Regis and the Chief Justiciar ceased to exist.

The Curia Regis had thus been the Royal Court of England for a period of about 200 years. It sprang into being when the object of the Conqueror was to establish an autocratic power and to stifle the existing system of self-government, and it came to an end when the combination of the Barons had curbed the power of the Crown, and the growth of a National Parliament had re-asserted in a modified form the antient rights of self-government. From that time to the present the judicial has been definitely severed from the military and executive power, and succeeding Chief Justices have been lawyers and lawyers alone.

The accession of Edward I. (ad 1272-1307) found the Courts of King’s Bench, Common Bench and Exchequer sitting in Westminster Hall. No Act of Parliament or royal edict had abolished the Curia Regis, but it had come to an end, like many another English institution, because it had done its work and was no longer suitable to the times. The Constitutions of Clarendon (ad 1165) had recognised the Curia Regis as a tribunal of common resort,2 where the Bishops sat with the Justiciars and the Barons until cases of blood required them to depart. But since then its jurisdiction as a Supreme Court had been much impaired. The distribution of its business over the country, through the appointment of itinerant justices, who sat in their several counties as justices of the Curia Regis,1 had tended to this result, and at the same time the prerogative of the Chief Justiciar had been gradually encroached upon by the growing power of the Chancellor as a lawyer and a statesman. Its end was gradual, and the exact moment of its termination cannot be ascertained, for it actually overlapped the new system. The Justiciar and his colleagues held office for some years after the description of the King’s justices had been changed from the general appellation of justiciars to the limited title they still hold of justices assigned to hold pleas, coram rege, before the King.

The courts thus established, which from that time forward for six hundred years, under the familiar title of the Courts of Common Law, transacted the business of the country, reflected the condition of the English people at the period of their institution. The Normans, who had invaded but not overrun the country, impressed upon its surface their thoughts and traditions; but the Norman Inquisition had only emphasized the Anglo-Saxon practice of open trial by freemen and neighbours. Inter-marriages and territorial settlements had, also, by this time amalgamated the two races into one, so that there was no longer any recognised distinction between Norman and Anglo-Saxon, but all were equally English. And though the Norman blood was thought the more noble, and those families whose ancestors came over with the Conqueror regarded themselves as of a more patrician class, yet the great mass of the people were still of the Anglo-Saxon strain, whose manners and customs still survived. The language of the country was also in a state of transition—Latin was specially that of the learned, English was that of the common people, while French was gradually coming into use by all classes. The polyglot jargon of the courts and the law books belongs to a later date. Thus though the Norman system of Chief Justices and trained lawyers as Presidents of courts was accepted as safe and satisfactory in principle, yet the Anglo-Saxon method of local trials and the judgment of neighbours remained undisturbed, and was recognised as an essential feature of the new procedure. As the county in the Anglo-Saxon times was the unit for judicial administration, so also it remained under the Normans. And as the shire-gemote, formerly presided over by the Sheriff, who convened the suitors and arranged the details of business, was held twice in the year as the Supreme Court of the district for the trial of causes and of criminals, so also under the new system the county remained the unit, the Sheriff summoned the jurors and witnesses and arranged the business, and twice in the year the King’s justices, superseding the Sheriff in his office of President, visited each county and tried all causes and offences arising within its limits. Hither also came the witnesses and the suitors, collected from the county, who judged the law and the facts, and found their verdicts from their knowledge of the party’s reputation, and of the circumstances into which they had to inquire.

In the 52nd Henry III. (ad 1268) Robert de Brus (grandfather of Robert the Bruce, King of Scotland) was appointed the first Chief Justice of the King’s Bench. He was a man of noble lineage and of good fortune, who was a lawyer by education and by profession. He had acted for some years as a Justiciar, and had gone several circuits. His position, however, as Chief Justice was limited to the administration of justice: he was no longer a statesman or a viceroy, and the salary, which was 1,000 marks when the Chief of the Court was also Chief Justiciar, was reduced to 100 marks when the office was solely that of Chief Justice of the King’s Bench.1 In other words, £15,000 a year to the Chief Justiciar was reduced to £1,500 a year to the Chief Justice.

The Courts accordingly sat as the King’s Bench, the King’s Exchequer, and the Common Bench, otherwise the Common Pleas. The King’s Bench was presided over by the Lord Chief Justice with certain puisne or assistant judges, the Exchequer by the Lord Treasurer with the Chancellor of the Exchequer and other barons, and the Common Bench by the Chief Justice and other justices from time to time appointed by the King. It appears that for some time after the division of the Curia into these three separate courts, the Exchequer continued to try pleas between party and party, but in ad 1300 that court was ordered by Statute1 to refrain from hearing such causes as contrary to the Great Charter, and to confine itself to matters touching the King’s revenue. Shortly afterwards, in 1303, William de Carleton, a justice of the Common Pleas, was appointed Chief Baron of the Exchequer.2 This office he held concurrently with that of a puisne judge of the Common Bench, and was the first person so appointed. From this date, as vacancies in the office of Chief Baron from time to time occurred, they were usually but not invariably filled from the justices of the Common Bench. The justices so appointed continued to hold the two offices of Justice and Chief Baron, their duties at that period being in no way inconsistent, as the barons could not try causes or hear appeals, and the Common Bench had no jurisdiction over affairs of the revenue.

The business was divided in the following manner. The King’s Bench had exclusive jurisdiction in all pleas of the Crown, and in all appeals from inferior courts. The Common Bench had exclusive jurisdiction in all real actions or suits relating to land and in actions between private persons to try private rights, while the jurisdiction of the Exchequer was limited to causes touching the King’s revenue with which it had exclusive power to deal. All these judges went Circuit twice a year, the barons of the Exchequer only trying cases on the revenue side, and no baron being permitted to try a prisoner or a civil cause unless he happened also to be a justice of the Common Bench, when he tried prisoners and causes in the latter capacity. The Assizes were held in the County Courts, and those tribunals were for many years after the end of the Curia Regis constituted as before with bishops, abbots, earls, barons, knights and freeholders of the county, the reeve and the burgesses of each township in the county and all those who of old were accustomed to be summoned to attend the business of the court. Itinerant Justices were appointed from time to time for some generations after the accession of King Edward I., and they went circuits equally with the justices of the Courts of Common Law. But the practice was found to be inconvenient. All courts, including those of the Itinerant Justices, were closed so long as the King’s Judges of either Bench held their Justice Seat within the County. The Justices in Eyre had accordingly an inferior position and less authority, in public estimation, than the justices in the King’s Courts; there were great complaints of the expense and burthen cast upon the counties for the escort and entertainment of these numerous justices, and in 1335 they ceased to be appointed.

This division of the business of the courts, which was however much interfered with by various devices of the lawyers at a later period, had the inevitable result of throwing the greater portion of the work upon the Common Bench, which became, as it was called by Sir Edward Coke,1 “the lock and key of the Common Law,” or, more familiarly by Sir Orlando Bridgman, “the Common Shop for Justice.”2 Crown cases were limited in number, and the justices of the King’s Bench, after a time, were not only put into an easy position as regarded the work they were called upon to perform, but as in those days their principal source of income was from the suitors’ fees, they correspondingly suffered in pocket. The Common Bench, on the other hand, was always full of work, which rapidly increased, with the result that whereas the justices of the King’s Bench seldom numbered more than three or four, those of the Common Bench were frequently seven or eight and sometimes amounted to as many as nine. Thus under Edward I. there were at times four, five and six justices of the Common Bench in addition to the Chief.3 Under Edward II. the Court was ordered to sit in two divisions by reason of the multitude of pleas.4 Under Richard II. and under Henry IV. there were three justices of the King’s Bench and five of the Common Bench.1 Under Henry V. there were four justices of the King’s Bench and six of the Common Bench, in addition to the Chiefs.2 Under Henry VI. and Edward IV. there were four justices of the King’s Bench and seven3 and at one time eight4 of the Common Bench. The latter court had also this great advantage, that it sat always at Westminster, while the King’s Bench, the Exchequer, and the Chancery were liable to follow the progresses of the King. And although it soon became the practice to dispense with the attendance of the judges and the barons, unless the King had some special need for their assistance, yet when he was located for an indefinite period at some provincial town, and had there established his Royal Court, the King’s Bench and the Exchequer with their clerks, their secretaries, their treasure and their baggage moved from London in the wake of the Sovereign. Thus from 1277 to 1282 the Law Courts were at Shrewsbury,5 while the King was fighting in Wales, and from 1298 to 1305 they were at York,6 while the King was on his expeditions into Scotland. On the latter of these occasions a square chequer board with the necessary seats and fittings was erected in the yard of York Castle for the use of the barons and the accountants of the Exchequer.

The decadence of the smaller courts in the various counties and the scandals arising therefrom led to a new departure in the administration of justice, and in the reign of Edward III. (about 1327) Justices of the Peace for each county were first appointed. In or about 1350 they were ordered to hold Sessions quarterly to try breaches of the Statute of Labourers.7 About 1359-608 they were empowered to try crimes and misdemeanours committed in their county, and by a Statute of Edward IV.9 they were empowered to sit regularly in Quarter Sessions for general business.

The immediate reason for the permanent establishment of Quarter Sessions, as recited in the preamble to the Statute, appears to have been the misconduct of the sheriffs, who packed the juries, compelled the payment of excessive fees, and by various extortionate devices held unhappy suitors to ransom. And here again, the Anglo-Saxon system of self-government seems to have been recognised, by the removal of these trials from the Sheriff or officer of the Crown to the resident gentry and landowners of the county.

The story of the Courts of Common Law from the closure of the Curia Regis to the end of the civil wars is a history rather of individual judges than of any substantial changes in legal procedure.

28.

THE HISTORY OF THE COURT OF CHANCERY1

By George Spence2

IT has always been held by the great oracles of the law, that the principles of the Common Law are founded on reason and equity;3 and so long as the Common Law was in the course of formation, and therefore continued to be a lex non scripta, it was capable—as indeed it has ever continued to be, to some extent—of not only being extended to cases not expressly provided for but which were within the spirit of the existing law,4 but also of having the principles of equity5 applied to it by the judges in their decisions,1 as circumstances arose which called for the application of such principles. This was more especially open to the judges as regards defences to actions which were not founded on writs, and were therefore under their own control. But in course of time, a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered as of almost equally binding authority on succeeding judges as were the acts of the legislature; and it became difficult to make new precedents without interfering with those which had already been established. Hence (though new precedents have ever continued to be made), the Common Law became, to a great extent, a lex scripta, positive and inflexible; so that the rule of justice could not accommodate itself to every case according to the exigency of right and justice.2

The Romans, as has already been mentioned, had found themselves in a similar condition as regards the law which was contained in the Twelve Tables, and the subsequent additions which had been made to it. To supply this deficiency in their original system of jurisprudence, first the Consuls, then the Prætors, were permitted as occasion required to correct “the scrupulosity and mischievous subtlety of the Law,”3 and supply its defects; not, indeed, as regards the Prætors, by altering the law itself, but by means of a distinct equitable code, framed by themselves and propounded on entering on their office; and which was for the most part administered by the same tribunals which dispensed the ordinary law, and by the same mode of procedure.4

Hadrian, as we have seen, compiled from the previous Edicts a code of Equitable Jurisprudence,1 and that code was expounded by the commentaries and responsa of the Jurisconsults, so that it became, like the Common Law of England, though by a different process, a lex scripta. But even the jus honorarium, when thus reduced to system, was found to be insufficient to answer every exigency. It appears that the judges and persons intrusted with the administration of the law, assumed authority to apply principles of equity, or natural justice, to the particular cases which seemed to require such an interposition. However, probably from a fear of the uncertainty and inconvenience which might have resulted from such a course being pursued, Constantine, ad 316, and after him Valentinian, as has already been adverted to,2 prohibited the judges from exercising any such discretion, reserving to themselves alone, in their consistory or council, the application of principles of equity, as distinct from the received rules and maxims of the law.3 From that time cases were continually referred to the Emperors, either originally, or by way of appeal; and their decisions, thus pronounced, as well as their less formal rescripts, became part of the written law.4 If such a deficiency was found to exist after Hadrian’s Edict, we cannot be surprised at its having been experienced in England at the time when the Court of Chancery first came into existence as a distinct Court of equity.5 A very large infusion of equitable principles had been incorporated in the Roman law by means of the Perpetual Edict. In those important branches of the law, particularly, which related to contracts, a system of equitable jurisprudence had been introduced, which left little, if anything, to be supplied. Equitable principles were applied to every contract of sale and purchase, pledge, letting, hiring, and the like;1 whether the contract were executory, or perfected. In the former case, if there were a want of complete bona fides, the jus honorarium furnished a good defence to any attempt to enforce it at law;2 in the latter, by the same law the party complaining might, by a rescissory action, avoid the transaction,3 and a purchaser, who had been in any way defrauded, might bring an action for compensation, if that would afford a more appropriate remedy than a rescission of the transaction:4 express stipulation on the part of a contracting party for exemption from any such liability was of no avail.5 Provision was also made for the correction of mistakes, without rescinding the transaction.6 In every case, particularly in respect of transactions which were classed as bonæ fidei,7Fraud might be taken advantage of by way of defence;8 and where a person sustained an injury or loss by means of a fraud, for which he could not obtain redress by any recognized form of action, the Perpetual Edict gave him a remedy according to the circumstances of the case.9 These were the remedies which might be obtained before the ordinary tribunals; but, large as they were, it was found that proceedings by action in cases of fraud and circumvention, would not afford in all cases an adequate remedy;1 and that there were many cases calling for relief, which could not properly be provided for by any form of proceeding in the ordinary tribunals. Hence by a Prætorian Edict, which was incorporated in the Perpetual Edict, liberty was given to every person who had been led into doing any act by which his rights were affected, through fear, surprise, circumvention or trickery, or by mistake, “justum errorem,” to resort to the extraordinary jurisdiction2 of the Prætor for a Restitutio in integrum, that he might be restored to his rights, and placed in the same position as if no such transaction had taken place.3

The provisions of the Common Law of England, both as regards its principles and mode of procedure, but more especially the latter, at the period above alluded to, namely, the reign of Edward III., as will have been in part observed from the preceding sketch, fell far short of the lex scripta of the Roman jurisprudence. In many of the cases above enumerated, for which provision was made by the Roman law, no remedy, or at least no adequate remedy, could be obtained. Even as regards such of the principles of equity belonging to the Roman jurisprudence as were admitted into the Common mon Law, no adequate means for carrying them out were provided.

A system which was so materially deficient to answer the purposes of justice, could not be satisfactory.1 The Roman scheme of judicial organization, as handed down by the corpus juris, as we have seen, presented for imitation two modes for supplying the deficiencies of the English system: the one was for the Chancellor to supply the deficiencies of the law by introducing a jus honorarium to be administered by the Courts of Law; the other was to resort to the royal prerogative in each particular case, where no remedy, or an inadequate remedy, was provided by the law.2 The first method, namely, the introduction of a jus honorarium, could not be acted upon by the Chancellor of his own authority, as will have been collected from what has already been stated: for though the Chancellor issued all writs, the Judges of the Common Law Courts assumed exclusive jurisdiction to decide upon their validity, disregarding the sanction of the Chancellor, and his College of Clerks.3 Nor could the Chancellor declare what should be a sufficient defence to an action; indeed, with this part of the judicial machinery he had no opportunity to interfere.

However, it was possible to attempt a remedy of a corresponding nature to the Jus honorarium by means of the legislature, and that attempt was made, as has already been noticed, by the statute of Westminster the Second (13 Edward I.).4 This statute opened the measn of obtaining remedies in numerous cases, which were before excluded by the rules of the common law; and other statutes were passed to supply many of the deficiencies in the common law, as new circumstances, unprovided for by the law, arose.

But in fact a lex scripta grew up in the interpretation of the apparently large and flexible provisions of the statute of Westminister the Second itself. To supply the yet existing deficiencies in the law, the remaining expedient presented by the Roman judicial system, namely, the exercise of the royal prerogative in particular cases, and on their own circumstances as they occurred, was resorted to in the manner to be hereafter described.

But over and above these calls for the interference of the prerogative, the circumstances of the times1 required that some extraordinary powers should be exercised to prevent obstructions to the course of justice, even in cases where the law was sufficient, if duly administered, to afford a complete remedy—a necessity quite as urgent as that which arose from the deficiencies in the law itself. This combination of circumstances ultimately gave rise to the establishment of the extraordinary jurisdiction of the Court of Chancery, on which subject we are now about to enter. But it will be necessary for us, first, to direct our attention to the constitution of the King’s Select Council, from which the Court of Chancery may be said to have sprung.

We must go back a little in order to examine into the constitution of the Select Council after the Norman Conquest, which has hitherto been only casually adverted to, as the functions of the Court of Chancery were in the first instance delegated to that council.

The Norman Sovereigns, like their Anglo-Saxon predecessors,2 were advised in the exercise of their prerogatives in respect of matters political and judicial,3 by a Council always in attendance on the king’s person, which was distinct from the Great Council or Parliament,4 though, as it would appear, forming part of the Great Council when assembled. The king presided in both, and they had the same general appellation, namely, “The Council,” till the reign of Edw. I., from which time the Great Council, which usually was called together four times in the year, obtained the settled name of “The Parliament.”1

3 It is not easy to distinguish the peculiar functions of each of these councils;2 probably the functions of the minor or Select Council were in a great part suspended, whilst the Great Council was sitting; certainly from the time of Edward III. the Council and the Lords’ House were frequently blended together as a Council within a Council; but in that reign the Lords as a distinct body were the Judges of Parliament,4 though even then we find matters referred to the select Council, sometimes, that they might make a report to a subsequent Parliament.5

This select Council was composed of certain great officers who were members ex-officio, as the Chancellor, Treasurer,6 the Grand Justiciary and other justices in the early reigns,—the justices of either Bench after the institution of separate courts,—the justices in Eyre—the Escheators,7 and such others, usually but not exclusively, Bishops, Earls, and Barons, as the king thought fit to name.

The serjeants and the masters, who have already been mentioned and whose office will be further described hereafter, were also occasionally called in.8 Ultimately the masters became ex-officio members of the council9 for the purpose of advice.

The official members on some occasions sat alone, at other times with those who were associated to them.1

Whenever the council required the assistance of other persons, they were summoned by writs issued by the Chancellor, by order of the council, according to circumstances; and if any information was required by the council in respect of any matter before them, writs and commissions emanating from the council were dispatched out of the Chancery, and the inquisition taken under such writs having been presented to the council, such orders were thereupon made as justice appeared to require.2

This was the king’s permanent council, or what would now be termed the Privy Council in contradistinction to the Great Council or Parliament, before described, which only met in obedience to special writs of summons, whereas this council was always sitting for the dispatch of business.3

This council was used to sit in different chambers about the palace, such were the Painted Chamber, the Whitehall, the Chamber Marcolf; sometimes in la Chambre des Etoiles, to which place of their meeting the general return of certain writs in the reign of Edward III. coram nobis in camera, are referred. The council very often sat in the Chancery.4

It appears that in early times, probably down to the reign of Edward III., as will be more particularly noticed hereafter, it was in this council, presided over by the king himself, or some person delegated by him when absent, that all applications for the special exercise of the prerogative in regard to matters of judicial cognizance, criminal and civil, were discussed and decided upon.

The general nature of the applications which were addressed to the council may be ascertained from the answers to the petitions which have been preserved; they are as follows:—sue at Common Law, (that is by ordinary writ,) or in the County or Hundred Court;—sue in the Exchequer;—sue in Chancery, that is before the ordinary common law court held before the Chancellor, which will be noticed hereafter;—a writ on the subject shall be dispatched out of Chancery;—the king will consider;—a remedy shall be provided, and the like.1

As regards the particular description of judicial business which was disposed of by the council itself in early times, we are left somewhat to conjecture. It seems to have exercised a Criminal as well as Civil jurisdiction. Sir Francis Palgrave considers that the council exercised a general superintending authority over the courts of common law, though in a manner rather resembling the authority which a tribunal exercises over its members, than as resulting from the subjection of one court to another.2

Mr. Hardy, in his Introduction to the Close Rolls, has set out a passage from Benedict Abbas, from which it would appear that, so early as the time of Henry I., the council took cognizance generally of those cases which the ordinary judges were incapable of determining.3 From the records of the proceedings of this council in after times, we learn, that the council by delegation from the king, advised as to the exercise of the prerogative on all applications to obtain a remedy for injuries and acts of oppression, where from the heinousness of the offence, or the rank or power of the party, or any other cause, there was likely to be an impediment to a fair trial, or to the attainment of appropriate redress, in the ordinary tribunals; so also when by force and violence, justice was prevented taking its ordinary course.1 The council on such applications either took the case into their own hands, or gave specific directions in regard to it according to the circumstances of the case.2 Where a party was suffering imprisonment by the process of an inferior court, the double remedy of a subpœna against the pursuing party, and a writ of Habeas Corpus cum causa was sometimes given.3 The council had the power of issuing writs into all special Jurisdictions or Franchises, as Wales and Ireland,4 which, with their other extraordinary powers, gave them surpassing capabilities beyond those of any other court, except the Court of Chancery. The poor appear to have been the objects of their particular care.5 “For God and in work of charity” generally concluded all the petitions to the council.6

The council also appears to have exercised a prerogative jurisdiction in cases of fraud, deceit, and dishonesty, not so tangible as to be within the reach of the common law; and int. alia to have issued writs of ne exeat regno in civil cases against foreign debtors who desired to escape from payment of their debts.7

The clergy, as before observed, having been excluded in the time of Henry III. from entertaining any question as to fidei læsio and juramenti transgressio, may account for the council having been applied to in cases of fraud and deceit, after the reign of that monarch.

The interference of the Prerogative with the ordinary course of justice to the extent and in manner above described, appears to have been recognized in early times as constitutionally unobjectionable; but to provide against abuse, the Barons at various times claimed to have a voice in the appointment of the Chancellor, Judges, and great officers of state, who were ex-officio members of the select council, and which at times they exercised in Parliament.1 By the articles agreed on in the eighth year of Henry VI. it was provided, that all Bills forwarded to the council that embraced matters terminable at the common law should be sent there to be determined, unless there were too much might on one side, or there were other cause reasonable moving the council to retain them.2 By the statute 5 Rich. II. stat. 1, c. 8, those who had lost their deeds in the late troubles were authorized to present petitions to the king and his council, when such remedy was to be provided as was just; in this we may recognize an old Anglo-Saxon custom.

The Great Council, or Parliament, was also a court for judicial purposes, ordinary and extraordinary. Indeed, in the time of Edward I., and for some time afterwards, the Parliaments, excepting as regards the granting of taxes, were not so much legislative assemblies, as the King’s Great Council in which subjects applied for judicial relief against their fellow subjects.3 In early times petitions of all kinds and descriptions were presented to the king, or to the Great Council on the occasion of their meeting.4 The Parliament, or Great Council, itself disposed of many of the cases brought before it; amongst the rest those which had been referred to it, from their difficulty, by the ordinary tribunals.5

If the case required a new law, an award was made by the king and barons, who alone at this time, as already observed, interfered in regard to matters connected with the administration of justice.1 This award in early times had the force of a statute; afterwards the Commons, as has already been mentioned, established the right of concurring in all legislative Acts, and, by consequence, in these awards, which then became what are now called Private Acts of Parliament.2

In cases not requiring special interference, the same course seems to have been there adopted as on the applications which were made to the council. If the matter were remediable at law, and there were no obstacle to the remedy being obtained, the petitioner was sent to the Common Law Courts; if it were a matter of revenue, he was sent to the Exchequer; if the matter related to the king’s grants, or other matters cognizable under the Chancellor’s ordinary jurisdiction, he was sent to the Chancery; if it were matter proper for the consideration of the council it was sent there.3 The judges, and other official members of the select or privy council, originally attended as a constituent part of the Great Council; but in the time of Edward III. or Richard II. the Lords, by their ascendency, threw the judges and other official members of the council into the shade, and took the decisive jurisdiction into their own hands;4 thus, their ancient colleagues of the council, not being Lords, have been reduced to the condition of silent assistants, unless when called upon to give their opinions.5

During the time to which the references in the preceding pages relate, a growing Jurisdiction, exercised by the Chancellor apart from the council, is observable, the nature and progress of which are now to be the subject of inquiry. The Chancellor, whose office has been traced down to the reign of Henry II., continued to exercise very important functions; he was still almost always a high dignitary of the Church, and besides his independent legal jurisdiction, which will be particularly noticed hereafter,1 it would appear that this great officer was the principal actor as regards the judicial business which the Select Council, as well as the Great Council, had to advise upon or transact.2

Thus Matthew Paris, incidentally mentioning Radulphus de Neville, Bishop of Chichester, who was Chancellor to Henry III., says, “qui erat Regis fidelissimus Cancellarius, et inconcussa columna veritatis, singulis sua Jura, precipue pauperibus, juste reddens et indilate.”1 There are earlier notices of a similar kind. The panegyrics composed in honor of the famous Thomas à Becket, Chancellor of Henry II., by Fitzstephens, and of the Bishop of Ely, Chancellor of Richard I., ad 1189, by Nigel de Wetekre, refer to each, in the following terms,—

• Hic est qui regni leges cancellat iniquas,
• Et mandata pii principis æqua facit.

As to the latter it is added—

• Si quid obest populo, vel moribus est inimicum
• Quicquid id est, per eum desinit esse nocens.2

In the reign of Edward I., the English Justinian in more than one sense, we begin to observe unequivocal marks of an extraordinary jurisdiction exercised in the Chancery in civil cases. It was a custom with this monarch to send certain of the petitions addressed to him praying extraordinary remedies, to the Chancellor and Master of the Rolls, or the Chancellor or the Master of the Rolls alone, by writ under the privy seal, (which was the usual mode by which the king delegated the exercise of his prerogative to the council,) directing them to give such remedy as should appear to be consonant to honesty (honestati).3 There is reason to believe that this was not a novelty.4 Considering what was the constitution of the council, great inconvenience and uncertainty must have resulted from leaving the correction and extension of the law in civil cases to such a tribunal; though it would appear from an ordinance issued in the 8 Edward I., that the Chancellor was not necessarily the person to whom the exercise of the prerogative of grace even in matters purely civil was committed. When the Chancellor administered relief independently of the council, it was by express delegation from the king, and given, as it would seem, by the advice of the council.1 It will be remembered, that it was in the 13th year of the same king that the stat. of Westminster the Second, which authorized the granting of writs in consimili casu, was enacted, by which the necessity for many of these applications must have been superseded.

Several records relating to the Court of Chancery during the reign of Edward II. have been brought to light by Lord Campbell, from which it appears that the court was then in full operation.2

In the reign of Edward III. the Court of Chancery, as a court of ordinary jurisdiction, became of great importance. The Chancellor, under his ordinary jurisdiction, held Pleas of scire facias for repeal of letters patent,—of petitions of right, and monstrans de droit for obtaining possession or restitution of property from the Crown3 —Traverses of offices,4 —scire facias upon recognizances,—executions upon recognizances,—executions upon statutes,5 and pleas of all personal actions by or against any officer or minister of the Court of Chancery.6

The Chancellor also held jurisdiction on appeals of false judgement, when any lord would not do right to those under his jurisdiction.7 He was visitor of colleges, etc., of royal foundation, and had jurisdiction1 as to the king’s wards;2 he also took security for keeping the peace.3

The jurisdiction of the court as to recognizances, appears to have arisen in this way. It was a practice to secure the fulfilment of grants and leases, and other contracts, by recognizances acknowledged in Chancery; the power of issuing the writs of execution belonged to the court, and it naturally, therefore, assumed the power to judge of the default by which the recognizance was alleged to have been forfeited.4 Recognizances were afterwards, as we shall see, imported into the extraordinary jurisdiction of the court, and made use of to bind the parties to do right.5

The Chancellor had jurisdiction in all cases in which the crown was concerned.6 The petition of the Commons, 45 Edward III., seems to admit, that when the king was a party, he had a right to sue in the Court of Chancery, or in the ordinary courts of law at his pleasure, and so it seems had his grantees.7

The proceedings in all or most of these cases, were by common law process, not by petition or bill; but the Chancellor never had authority to summon a jury: on issue being joined on a matter of fact, in a cause before the Chancellor in his ordinary court, it was tried in the Court of King’s Bench.8 The Chancellor in the exercise of his ordinary or common law jurisdiction could not advert to matters of conscience.9

A summary jurisdiction was committed to the Chancellor in many cases, by various Acts passed in this reign, but whether to be exercised according to the formalities of common law procedure, or according to the course of the council, is matter of doubt.1

In this reign (Edward III.) the Court of Chancery appears as a distinct court for giving relief in cases which required Extraordinary remedies. The king being, as may well be conceived, looking to the history of his busy reign, unable from his other avocations to attend to the numerous petitions which were presented to him, he, in the twenty-second year of his reign, by a writ or ordinance referred all such matters as were of Grace, to be dispatched by the Chancellor or by the Keeper of the privy seal.2

The establishment of the Court of Chancery as a regular court for administering extraordinary relief, is generally considered to have been mainly attributable to this or some similar ordinance.3 It will be observed, that it conferred a general authority to give relief in all matters of what nature soever requiring the exercise of the Prerogative of Grace—differing from the authority on which the jurisdiction of the courts of common law was founded; for there the court held jurisdiction, in each particular case, by virtue of the delegation conferred by the particular writ, and which could only be issued in cases provided for by positive law. This is one of the great and fundamental distinctions between the jurisdiction of the courts of common law and that of the Court of Chancery.

However, as will have been observed by the references in the preceding pages, matters of Grace were not yet sent exclusively to the Chancellor or the Lord Privy Seal. The Great Council and the Privy Council still entertained questions of this nature by delegation from the sovereign. Some cases also were still specially sent to the Chancellor, or Chancellor and Treasurer, sometimes with a requisition that they should assemble the justices and serjeants and others of the council, to assist in their determination.1

From this time suits by petition or bill, without any preliminary writ, became a common course of procedure before the Chancellor2 as it had been in the council. On the petition or bill being presented, if the case called for extraordinary interference, a writ was issued by the command of the Chancellor, but in the name of the King,3 by which the party complained against was summoned to appear before the Court of Chancery to answer the complaint, and abide by the order of the Court.4

One great engine for the discovery of truth, which, as before observed, was unknown to the common law, namely, the examination of the parties on oath, was employed by this tribunal, as it was by the council from which this court was now branching off.

The principles on which the decisions of the Chancellor in the exercise of the extraordinary jurisdiction thus committed to him, were founded, were, it would seem, those of Honesty,1 Equity, and Conscience.2 The latter, as a principle of decision, was then unknown to the common law,—it was of clerical introduction; Equity was known to the Roman law,3 and was, as we have seen, long before this acknowledged, to some extent at least, as a rule for decision in the common law courts;4 but Equity is reserved for a more full discussion in a subsequent page.

The increased importance of the ordinary and extraordinary jurisdiction of the Chancellor5 appears to have attracted the attention of the people at large; all would naturally be anxious that the office should be filled by competent persons. It seems to have been considered by some that the extraordinary jurisdiction might, if left in the hands of persons not versed in the common law,6 be converted to the destruction of the law. Urged, probably, by some such suggestions, Edw. III. in the 15th year of his reign appointed Robert Parning, King’s Serjeant, his Chancellor. “This man,” says Lord Coke, “knowing that he who knew not the common law could never well judge in equity, which is a just correction of law in some cases, did usually sit in the Common Pleas, which court is the lock and key of the common law, and heard matters in law there debated, and many times would argue himself.”1 He died two years afterwards.

In the 45th and 46th years of Edward III.,2 between which time and the death of Serjeant Parning there had been several clerical Chancellors, and the important ordinance of the 22d Edward III. had been issued, Sir R. Thorpe, Chief Justice of the Common Pleas, and Sir J. Knivet, Chief Justice of the King’s Bench, were respectively appointed to the office of Chancellor. This was, probably, in consequence of the petition of the Lords and the Commons, of the 45th Edward III., which prayed, that as ecclesiastics were not in all cases amenable to the laws, lay persons should for the future be selected for this high office.3 Sir J. Knivet continued Chancellor till the 50th year of the king; but from that time, and probably for the reasons amongst others, which will be presently mentioned, the office returned to its accustomed channel.4

By the statute 37 Edward III. c. 18, it was enacted, that all those who made suggestions to the king, putting in danger the liberty or franc tenement of any person, should be sent with such suggestions before the Chancellor, the Treasurer, and the king’s Great Council, and should there find surety to pursue their suggestions, and should incur the same penalties on failure as would have been inflicted had the matter been proved.5

In this reign the Court of Chancery, as well as the Court of King’s Bench, ceased to follow the king.1

The terms “Honesty,” “Equity,” and “Conscience,” which, as we have seen, were the recognized principles of the decisions of the Chancellor, under his extraordinary or prerogative jurisdiction in the reigns we have just passed over, would rather lead to the supposition that the jurisdiction as originally exercised was confined to cases of a nature purely civil. But in the reign we are now entering upon, the disorderly state of the country, and the insufficiency of the ordinary means of preserving internal peace and order, appear to have called forth the exercise of the authority of the Chancellor, as well as of the Council, in a manner partaking of a criminal character.

The ancient system of police by mutual borh, or pledge, and the other police regulations, which Bracton describes in his 3d Book (de Corona), would appear in theory to have been amply sufficient for the preservation of the peace; but it is evident that they were found to be ineffectual in practice, or incapable of being enforced.

Edward III. and his Council found it necessary, in the very first year of his reign, to adopt some more effectual measures of police than those which already existed. For this purpose Justices of the Peace were instituted throughout the country.2 It was the duty of these magistrates to repress violence and disorder of every kind, and for that purpose they were, amongst other things, empowered to take security for the peace, to inquire into misbehavior of officers, and to inflict punishment for trespasses, extortions, and similar offences.

Early in the reign of Richard II. it was found necessary to provide some further measures for repressing forcible entries on lands. By the 5th Richard II. stat. 1, c. 8, persons so offending were subjected to imprisonment; by the 15th Richard II. c. 5, in case of forcible entry, any Justice of the Peace might take the power of the country, posse comitatus, and put the offender in jail.1

2 But the course of justice itself was interrupted, and all these provisions were rendered in a great degree ineffectual by the lawless spirit of the times. The Commons in the 5th year of Richard II. complain of “grievous oppressions in the King’s Courts, the Chancery, King’s Bench, Common Bench, and Exchequer, by the multitude of braceours of quarrels, and maintainors, who are like things in the country, so that justice can be done to none.”3

In this state of things the middle and lower orders of society were almost out of the protection of the law.

The defence of the poor and helpless, as has already been observed, was one of the most ancient, as it was in the early period of our history one of the most essential, of the prerogatives which descended from the Anglo-Saxon to the Norman sovereigns.4 Henry III. had found it necessary to direct special commissions throughout the country, to inquire into the oppressions of the poor, with a view to their redress.5

In the reign of Richard, the unsettled state of the country tended to encourage every sort of violence; the necessity for more than the ordinary means of protection from oppressions and spoliation was obvious; the Justices were overawed, and in some instances the very powers which were confided to them, were employed as instruments of oppression, so that in a subsequent reign it was found necessary to place the Justices themselves under the especial supervision of the Chancellor.1

The Chancellor, therefore, at the very outset of Richard’s reign, the king being himself of tender years, with the sanction no doubt of the Council, exercised an authority, especially in favor of the weak, for repressing disorderly obstructions to the course of the law, and punishing the defaults of the officers who were entrusted with its administration, and affording a civil remedy in cases of violence and outrage, which, for whatever might be the reason, could not be effectually redressed through the ordinary tribunals; this jurisdiction will be more particularly considered hereafter.

The Commons seem to have taken great umbrage at this exercise of authority on the part of the Chancellor, particularly as the Chancellor did not scruple to entertain jurisdiction in cases of violent dispossession of land, which was an interference with franc tenement, of which they were very jealous. The Commons required that all such cases should be left to the Common Law;2 but the Chancellors,3 supported by the Council, and under the shield of the clerical character, persevered against all opposition in exercising this branch of the prerogative, in the Council, and in the Court of Chancery;4 and a resort to the Chancellor under his extraordinary jurisdiction was thus secured for the poor, the weak, and the friendless,5 to protect them from the injuries to which they were exposed.

But many powerful reasons operated to induce persons of all classes to apply for the powerful aid of the Chancellor in cases which were not strictly within the range of the principles above adverted to. Before the Chancellor, disputed facts might be established by the personal examination, on oath, of the party against whom any complaint was made,—an advantage which could be obtained in no other court, with the exception of the Council. Besides this the Court of Chancery, and the Council, alone exercised a general Preventive jurisdiction. Again, it was in the Court of Chancery or the Council only that, in some cases of outrage, compensation could be obtained, the only remedy the Common Law afforded being punishment through the medium of criminal process.1 These concurrent causes operated, about the time we are now contemplating, to bring numerous suitors to this court.

In this reign petitions, or Bills as they were afterwards called here as in Parliament, were addressed directly to the Chancellor himself, whether because he was the person to whom the prerogative of grace had been committed,2 or, as some have conjectured, because it was known to the suitors that to that high dignitary their petitions would ultimately be referred.3 Many of these Bills are extant, some have been published by the Record Commissioners; most of these are founded on some outrage or violence for which redress is sought: they will be referred to more particularly in a future page.4

The Commons reiterated their petitions against this growing jurisdiction.1 The particular grounds of their remonstrances were, that persons were called to this court, not upon any specific complaint, but quibusdam certis causis; that persons were required to answer as to their franc tenement, (which was something almost sacred in the minds of land-owners,) and to disclose their titles, which the Commons denounced as being contrary to law; that the course of proceeding was not according to the Common Law, but the practice of the Holy Church; and that the process of these extraordinary tribunals was abused by being employed as the means of extortion.2 The answer to these remonstrances generally was, that the king would preserve his prerogative.

It is a little remarkable that amidst these complaints, although no Act of the legislature had conferred on the Chancellor any of the coercive powers which the Commons so forcibly denounced, no direct complaint is made, as to the jurisdiction which he had assumed being an invasion of any constitutional principle, or that this permanent delegation was an excess in the exercise of prerogative. Acts of Parliament indeed3 had been passed, which possibly may have been intended by one branch of the legislature at least, to control the extraordinary jurisdiction exercised by the Council, and subsequently by the Chancellor; but if so, they failed of their intended effect, as regards both: and the same fate attended the stat. 4 Hen. IV. c. 23, which will be presently mentioned.

The Commons not succeeding in their attempts to extinguish this extraordinary jurisdiction, they addressed their petitions to its due regulation, and in consequence, by the statute 17 Rich. II. c. 6, it was enacted, that where persons were compelled to appear before the Council or the Chancery on suggestions found to be untrue, the Chancellor should have the power to award damages according to his discretion; and though it was not until the statute or ordinance of the 15th Henry VI. c. 4, that it was directed that no writ of subpœna should issue until surety should be found to answer the party his damages if the matter contained in the bill could not be made good, sureties had been in fact required in the reign of Rich. II.1

From the time of passing the stat. 17 Richard II. we may consider that the Court of Chancery was established as a distinct and permanent court, having separate jurisdiction, with its own peculiar mode of procedure similar to that which had prevailed in the Council, though perhaps it was not yet wholly separated from the Council.2

The writ of subpœna, in its modern form, prior to the late alterations, now came into general use in the Court of Chancery, though, as appears from the preceding authorities, it was not then invented, as stated by the Commons, 3 Hen. V.3 In many of the petitions or bills, no other relief was prayed, than that a subpœna might issue.4

References to the Council were still made in extraordinary cases of a nature purely civil, but it seems to have been considered there, that the Chancery was the proper Court for making decrees in such matters.5

In this reign we find some matters delegated to the Chancellor by authority of Parliament. In the 15 Rich. II. two petitions were addressed to the King and the Lords of Parliament; the answer to each was the same, that the petition be sent to the Chancery, and by authority of Parliament the Chancellor was to cause the parties to come before him in the said Chancery, and there, the matter contained in the petition, to diligently view and examine, and hear the reasons of the one party and the other; “and further, let there be done by authority of Parliament that which right and reason and good faith and good conscience demand in the case.”1

Petitions for extraordinary remedies were still presented to the king, but they were usually referred by him to the Chancellor.2

The Chancellor at this time was assisted in the exercise of his judicial duties, legal and equitable, by the Master of the Rolls;3 but this high officer and his duties will be the subject of particular notice hereafter.

An event which I am about to notice took place in this reign, which appears to me to have had great influence in the establishment of the extraordinary jurisdiction of the Court of Chancery, and in throwing it into the hands of the clergy.

In the reign of Edward III. the exactions of the court of Rome had become odious to the king and the people. Edward, supported by his Parliament, resisted the payment of the tribute which his predecessors from the Conquest downwards, but more particularly from the time of John, had been accustomed to pay to the court of Rome; and measures were taken to prevent any further encroachments of the papal power.4 A general distaste on the part of the laity of all ranks to everything connected with the Holy See had begun to spring up. The name of the Roman Law, which in the reigns of Henry II. and III., and of Edward I., had been in considerable favor at court, and even as we have seen with the judges, became the object of aversion.

In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common law tribunals.1 Perhaps one object on the part of the judges might have been to exclude the doctrine as to fidei commissa, or trusts, which, as we shall see, first came distinctly into notice in this reign. The effect, however, of the exclusion of the Roman law from the common law tribunals, was, as will be more particularly noticed when I come to treat of Trusts, that a distinct code of laws was formed and administered in the Court of Chancery, by which the enjoyment and alienation of property were regulated on principles varying in many essential particulars from the system which those who originated and carried into effect the exclusion of the Roman law, were so anxious to preserve.

Nor were these united endeavors for the exclusion of the Roman law, as it appears to me, less important in fixing the appointment of the office of Chancellor in the members of the clerical body. Notwithstanding all the efforts that were made to repress them, Trusts soon became general. Some rules for their regulation were absolutely necessary—it was from the Roman law they had sprung up;—who so proper to introduce and systematize the necessary rules for their regulation, as those who were now exclusively conversant with this law, and who alone, as it was excluded from the Common Law Courts, could resort to it for their guidance? Accordingly, from this time (with some exceptions, which only tend to affirm the general proposition) none but clerical Chancellors were appointed, down to the 21st year of Henry VIII.

It may well be doubted, whether, but for this last circumstance, the system of equitable jurisprudence which we find established in the reign of Henry VIII., on which the doctrine of Uses, and much of the modern jurisdiction of the court is founded, would then have existed. The antipathy to the Roman law, which in the reign of Elizabeth was extended as regards a considerable portion of the community, to everything Roman, and the intensity of which has scarcely yet subsided, broke forth in the latter end of the reign of Elizabeth, and in that of James I., in a way that leaves little doubt as to what would have become of the equitable principles of the Court of Chancery, if that court in its infancy had been permanently committed to Common Law Judges as Chancellors. Although a little in anticipation, I cannot but here notice, as some confirmation of the conjecture which is hazarded above, that a writer of the reign of James I., who, if not as he styles himself, a Serjeant, was evidently speaking the sentiments of that order,1 says, “The Common Law commandeth all that is good to be done.”2 —“The suit by subpœna is against the common weal of the realm.”3 The whole of the system which formerly prevailed in the Court of Chancery as to Uses, and which was then applied to Trusts, is also denounced by him in terms,4 which show that, under Chancellors taken from the professors of the Common Law merely, the modern system of Equitable Jurisprudence (whether for good or for ill others will judge) would never have been reared, at least in the Court of Chancery.

But to resume. In the reign of Henry IV. the Commons renewed their petitions against the Court of Chancery, particularly complaining that the court interfered with matters that were remediable at law;1 and in the fourth year of this king, as before noticed, a statute was passed declaring that judgments given in the King’s Court should not be reversed, “adnihilentur,” excepting by attaint, or for error;2 not, however, expressly referring to the Court of Chancery, nor, in terms, touching the jurisdiction exercised by that court, which did not annul, but deprived the party of the fruits of his judgment.

No bills addressed to the Chancellor in this reign have been found; few in the reign of Henry V., though uses and trusts had then become very general: now, however, the bills began to be in English.3

In the reign of Henry V. the Commons repeated their remonstrances against the obnoxious subpœna, but without effect.4 However, it was admitted by the Commons in the most angry of their petitions, that there were some cases in respect of which no remedy, or at least no effectual remedy could be obtained, by the ordinary course of law, and over which the Court of Chancery might justifiably exercise jurisdiction.5 Nor was this altogether denied by the judges of the courts of Common Law.1 The Council still exercised an extraordinary jurisdiction concurrently with, but distinct from, the Court of Chancery.2 Applications were also still made to Parliament, in cases where justice was obstructed in the courts of Common Law, or where those courts had not the means of affording relief. There are some instances of such applications on the subject of Trusts.3

In the reign of Henry VI., this court was in full operation, and large additional powers of coercion were conferred on the Chancellor in particular cases.4 The writs in the reign of Henry VI. refer to the proceedings as being in Cancellaria, without reference to the Council.5 From this time the bills appear to have been filed.6

In the reign of Edward IV. proceedings by bill and subpœna became the daily practice of the Court of Chancery;7 and from that time, though the judges continued to dispute the Chancellor’s authority to interfere with the proceedings of the Common Law Courts,8 we do not trace any further opposition on the part of the Commons to the authority of the Court of Chancery;9 and down to the reign of Charles II. the court continued to be substantially the same as it was in the reign of Edward IV.

In the reigns of Henry V. and VI. various statutes were passed, which expressly delegated to the Chancellor, in particular cases, some branches of the jurisdiction which had been claimed or exercised both by the Council and by Parliament in aid of the Common Law, to be exercised with the advice of the Chief Justice of either bench, or of the Chief Baron of the Court of Exchequer.1

The Star Chamber—The Court of Requests—Special Commissions of Oyer and Terminer—The Equity Court of the Exchequer.

Having traced the extraordinary jurisdiction of the Court of Chancery as connected with or as forming part of the Council, until the time of its establishment as a separate and independent jurisdiction, it may be well cursorily to notice two other branches or offsets from the Council, which also formed themselves into distinct tribunals, namely, the Star Chamber and Court of Requests.

It has already been noticed that in the reign of Edward III. the Council were in the habit of sitting in what was called the Starred Chamber. After it became the habit to depute to the Chancellor a portion of the business of the Council, namely, that which related to civil rights, the Council usually sitting in the Star Chamber entertained jurisdiction over those cases which were not sent to the Court of Chancery. At length the Court of Star Chamber was established. This Court, like the Court of Chancery, derived its origin from the Royal prerogative.2 The Court of Star Chamber by continued usage, and as ultimately regulated by the stat. 3 (Clarendon says 10th) Henry VII. c. 1, and 21 Henry VIII. c. 30, had jurisdiction in cases of oppression and other exorbitant offences of great men, (where, as Lord Coke observes, inferior judges and jurors, though they should not, would in respect of the greatness of the offenders be afraid to offend,) bribery, extortion, maintenance, champerty, embracery, forgery, perjury, dispensers of false and dangerous rumors, news, and scandalous libeling; false and partial misdemeanors of sheriffs and bailiffs of liberties; frauds, deceits,1 great and horrible riots, routs, and unlawful assemblies, single combats, challenges, duels, and other heinous and extraordinary offences and misdemeanors;2 leaving ordinary offences to the courts of common law.3 Thus a jurisdiction founded on the inefficiency of the ordinary tribunals to do complete justice in criminal matters, and other offences of an extraordinary and dangerous character, arose almost concurrently with the establishment of the Court of Chancery and entirely analogous in principle and procedure to that Court, but confining its jurisdiction to cases partaking of a criminal character;4 “and whilst it was gravely and moderately governed,” says Clarendon, “it was an excellent expedient to preserve the dignity of the king and the peace and security of the kingdom.”

The Court of Chancery sometimes, besides itself granting civil relief, made use of the Court of Star Chamber to subject the parties to punishment where gross frauds had been perpetrated. Thus, we find an order of Lord Keeper Bacon to this effect, “Because the Court disliketh the said evil practices and fraud, and thinketh them not meet to be passed over without further examination,” it is ordered that the plaintiff and one Frankland, shall at their equal charges, exhibit a bill in the Court of Star Chamber, against Fulwood the defendant, “touching his indirect, lewd, and fraudulent practices.”5

This Court, however, having become odious by the tyrannical exercise of its powers, it met with a different fate to that of the Court of Chancery, having been abolished by the statute 16 Car. I. c. 10.6

The Court of Requests

It has generally been supposed that the Court of Requests, which was a minor Court of Equity, had its origin from the writ or proclamation of the 22d of Edward III., before referred to;1 but the more probable origin is an order of the 13th Rich. II., for regulating the Council, by which the Lords were to meet between eight and nine o’clock, and the bills of the people of lesser charge were to be examined and dispatched before the Keeper of the Privy Seal, and such of the Council as should be present for the time being. From this time, at least, the Lord Privy Seal held a Court of Equity called the Court of Requests. The course of procedure was the same as in the Court of Chancery. The bills of complaint filed there, ordinarily contained the one or the other of these two suggestions, namely, that the plaintiff was a very poor man not able to sue at common law, or that he was one of the King’s servants or ordinarily attendant on his person;—it was the poor man’s Court of Equity.2 The Lord Privy Seal, and the Masters of the Requests, who exercised similar functions to those of the Masters in Chancery, presided. This court continued to be resorted to down to the 41st of Eliz. when it ceased to exist, having been virtually abolished by a decision of the Court of Queen’s Bench.3 Greater facilities were from that time given to the poor for enabling them to proceed in the superior courts in formâ pauperis, which will be noticed hereafter in treating of the course of procedure in the Court of Chancery.

Special Commissioners of Oyer and Terminer

The King was frequently applied to, as has been before observed, to grant a more certain and speedy remedy in criminal cases than could be obtained by the ordinary proceedings of the Common Law Courts. In answer to these applications, Special Commissioners of Oyer and Terminer were frequently awarded by the Council, to whom such applications were usually referred, directed to persons specially named, who usually, as it would appear, were not justices of the one bench or the other.1

Poverty or the number of the applicant’s enemies, and the inefficiency of the Common Law, were also the ordinary grounds of the applications for this extraordinary exercise of the Prerogative. The great abuses attending these commissions, caused them to be confined to “great and horrible trespasses;”2 and even these became less frequent as the remedial jurisdiction exercised by the Council in its various branches, especially in the Star Chamber, became more fully developed.3

Courts of Equity of the Exchequer, Counties Palatine and of Lords and Ladies

Not only the Court of Exchequer,4 whose functions were in a peculiar manner connected with the Royal authority, but the Counties Palatine of Chester, Lancaster and Durham, the Court of Great Session in Wales, the Universities, the City of London, the Cinque Ports, and other places, silently assumed extraordinary jurisdiction similar to that which was exercised in the Court of Chancery; some of them yet subsist.5

The equitable jurisdiction of the Exchequer has lately been transferred to the Court of Chancery.

In the reign of Rich. I. the Earl of Moreton, a nobleman of vast possessions, had his Chancellor;6 and after this time many Lords and Ladies affected to establish in their several Honors a Court of Chancery, with similar powers to those exercised by the High Court, but they were extinguished by the Legislature.7

29.

THE ECCLESIASTICAL COURTS AND THEIR JURISDICTION1

By William Searle Holdsworth2

THE Ecclesiastical Courts have a longer history than the Courts of Common Law and Equity. At all periods in their long history prevailing theories as to the relations between Church and State have influenced both the law which they administer, and their position with regard to the English judicial system. If therefore we are to understand the arrangement of the Ecclesiastical Courts at different periods, and the sphere of jurisdiction assigned to them, it will be necessary to say something by way of introduction upon these matters. We can then proceed to treat of the courts themselves and their jurisdiction.

(i) The law administered by the Ecclesiastical Courts, and their relation to the English judicial system.

This subject falls naturally and chronologically into two divisions (a) the Pre-reformation, and (b) the Post-reformation period.

(a) The Pre-reformation period.

Throughout this period political and religious ideas were dominated by the theory of the survival of the Holy Roman Empire. It may be that in the common affairs of life, in the smaller associations in which men were grouped in a feudal state, this theory played little direct part. But in the law of the church, as administered in the Ecclesiastical Courts throughout Latin Christendom, it was all important. The Roman Empire had not perished. The Roman Emperor, represented by the emperor of Germany, still ruled the world in matters temporal; the Pope in matters spiritual. “The Pope, as God’s vicar in matters spiritual, is to lead men to eternal life; the Emperor, as vicar in matters temporal, must so control them in their dealings with one another that they may be able to pursue undisturbed the spiritual life, and thereby attain the same supreme and common end of everlasting happiness. In the view of this object his chief duty is to maintain peace in the world, while towards the Church his position is that of Advocate, a title borrowed from the practice adopted by churches and monasteries of choosing some powerful baron to protect their lands and lead their tenants in war. The functions of Advocacy are twofold: at home to make the Christian people obedient to the priesthood, and to execute their decrees upon heretics and sinners; abroad to propagate the faith among the heathen, not sparing to use carnal weapons. Thus the Emperor answers in every point to his anti-type the pope, his power being yet of a lower rank, created on the analogy of the papal, as the papal itself had been modelled after the elder Empire.”1 To Pope and Emperor the other rulers of the earth were subordinate.

On its temporal side this theory tended to become more and more untrue with the growth, during the Middle Ages, of the territorial state. But the influence of the old theory can be seen in the preamble of Henry VIII.’s statute which asserts that “by dyvers sundrie olde autentike histories and cronicles it is manifestly declared and expressed that this realme of England is an impire, and so hath ben accepted in the worlde, governed by oon supreme heede and King, having the dignitie and roiall estate of the imperiall crowne of the same.”2

The changing condition of Europe did not so obviously affect the dominion claimed by the Pope in matters spiritual. The claim of the Pope to be the head of a universal church was, in the Middle Ages, far less a mere theory than the parallel claim of the Emperor to be the head of a universal state. The Pope wielded a real authority over the faithful; and, of the fate of those who sought to cut themselves off from the communion of the faithful, the Albigenses and Southern France could tell. At the beginning of the 14th century Boniface VIII. could claim that the Pope held the chief place, that the Emperor was but his feudatory.1

The dominion of the papacy had been consolidated during the 11th and 12th centuries by a series of able popes—preeminent among whom were Gregory VII. (1073-1080) and Innocent III. (1198-1216). It was maintained by the rules of the Canon Law which was accepted as the “jus commune” of the church throughout Europe. It was from the 11th to the 13th centuries—during the most splendid period of the papacy—that the greater part of the Corpus Juris Canonici was compiled.

Roman civil law had never wholly perished. But the revival of interest in its study begins in the early years of the 12th century, when Inerius began to lecture upon the Digest at Bologna. “Roman law was living law. Its claim to live and to rule was intimately connected with the continuity of the empire.”2 A famous school of law was founded. The systematic study of the civil law produced a desire to reduce to a similar system the scattered rules of the canon law. Gratian, a monk of Bologna (1139-1142), gathered them up into a systematic treatise.3 The nature of his work is well illustrated by the name applied to it when it first appeared. It was called the “Concordia Discordantium Canonum.” Later it was known as the Decretum Gratiani. Henceforth the Canon Law stood side by side with the Civil Law. The University of Bologna possessed two faculties of law—the civil and the canon. The students were decretistæ or legistæ.4 There were doctores decretorum, doctores legum, or doctores utriusque juris.

The Corpus Juris Canonici is made up of the following parts:—(1) The Decretum Gratiani. This comprehended all the papal legislation down to the year 1139. The activity of papal legislation1 soon rendered a fresh compilation necessary. Several private collections were made. The collection made by Bishop Bernard of Pavia in five books is noteworthy as having supplied the method of arrangement of later portions of the Corpus Juris.2 (2) The Decretals of Gregory IX. (1234). This was composed of the decisions of the pope upon matters referred to him from all parts of Europe. (3) The Liber Sextus of Boniface VIII. (1298). As its name would imply it is intended as a supplement to Gregory’s five books. It contains not decisions, but abstract rules of law, which are no doubt extracted from the decisions. (4) The Clementinæ (1313). (5) The Extravagantes, i. e. the more important of later decretals. These were never formally promulgated as a code like the preceding four branches of the law.3 Professors of the canon law added many explanatory notes (glosses) to the text. Generally one gloss was accepted as the most important and was called the Glossa Ordinaria.4

The canon law was received in England, as in other parts of Europe, as the jus commune of the church. The English provincial constitutions formed but a small part of the law of the church. “They contain little that is new, and are only a brief appendix to the common law of the universal church.”5 William Lyndwood—the official principal of the Archbishop of Canterbury—wrote a commentary upon them in 1430, which has always been reckoned a leading authority in ecclesiastical law.1 He clearly regards them as a supplement merely to the jus commune of the church. The decretals of the pope are the edicts of a sovereign legislator whose authority it is heresy to question. Provincial constitutions are valid only in so far as they interpret or enforce these papal decrees.2 The test exacted of persons suspected of Lollardry was subscription to the Decretum, the Decretals, the Sext, and the Clementines.3

The canon law recognised the pope not only as the supreme legislator, but also as supreme judge of the Church, possessed not merely of appellate, but also of original jurisdiction. He could be called in by a litigant at any stage in the suit; and not merely the judgments he pronounced, but also any dicta he might be inclined to express, had the force of law.4 He could delegate his powers to legates a latere, who, by virtue of their commission, superseded all the ordinary courts. “The metropolitan must plead as plaintiff before the suffragan, the superior before the inferior, if the princeps will have it so.”5 In fact the Pope could, and did to a large extent, make himself the “Universal Ordinary.” He has, says Bracton,6 ordinary jurisdiction over all in things spiritual, as the king has ordinary jurisdiction over all in his realm in things temporal. It is clear from books of practice on the canon law that whenever any considerable sum was at stake in an action the usual course was to “impetrate” an original writ from Rome nominating papal delegates to hear the case.7 In the 13th century the number of English cases which came before the pope was larger than that from any other country in Europe.8 The methods by which, as we shall see, the Archbishop of Canterbury has attracted much of the business of the ordinary courts to his provincial courts, have been suggested by the practice of the Roman Curia.1

Such, then, was the system of the canon law, in force in England as in all the other countries of Western Europe. But the church and its law must necessarily exercise its activity within a state; and, whatever extreme churchmen might contend for, it was impossible that all ecclesiastical persons should live exempt from all temporal jurisdiction. Moreover, the canon law attempted to exercise a wide control over the laymen pro salute animæ. As the state grew into conscious life it was inevitable that occasions for disputes between the temporal and spiritual powers should arise. Two systems of courts exercising two systems of law cannot coexist in one state without disputes as to the limits of their respective authority. Within a certain sphere each was supreme. But there was always a debatable land over which neither party was completely sovereign.

The precocious growth of the state in England brought this necessary antagonism between the claims of Church and State into prominence at a comparatively early period. The controversy about investitures was settled in England in 1106. It was not till 1122 that a smilar controversy in Germany was ended by a similar compromise. In the royal writ of prohibition the royal courts had a weapon of precision which in the end secured for them the jurisdiction which they claimed. All questions touching lay fee, all questions concerning advowsons, all criminal cases, save cases of felony where a clerk was the culprit, all cases of contract and tort, were gradually drawn into the royal courts. They were drawn into the royal courts in spite of the protests of churchmen. Though churchmen sitting as royal justices helped to secure the victory of the common law, it is clear that the canon law and the churchmen qua churchmen must have regarded them as encroachments.2 Similarly, statutes, like the statutes of Provisors and the two statutes of Præmunire, attempted to check, in the interests of patrons and of the state, the abuses of papal patronage. The aim of the statute of Provisors1 was to protect spiritual patrons against the pope. If the pope attempted to appoint, the right of presentation lapsed to the crown. The bishops took no public part in the enactment of this statute. The first statute of Præmunire2 punished those who drew “any out of the Realm in Plea whereof the cognisance pertaineth to the king’s court, or of things whereof judgments be given in the king’s court, or which do sue in any other court to defeat or impeach the judgment given in the king’s court.” The statute plainly says nothing of cases over which the king’s court never claimed jurisdiction. The second statute of Præmunire3 was aimed at those who “purchased or pursued, in the Court of Rome or elsewhere,” any “Translations, processes, and sentences of Excommunications, Bulls, Instruments, or any other things whatsoever which touch the king, against him, his crown, and his regality,”4 whereby the king’s court was hindered in its jurisdiction over pleas of presentment. The guarded answer returned by the bishops, in reply to the question addressed to them as to the papal power in this respect, shows an obvious desire to conciliate the Parliament without committing themselves to any statement contrary to canon law.5 It is clear that such legislation is as “antiecclesiastical” as the issue of writs of prohibition. To argue from such legislation, or from the issue of such writs, that the Ecclesiastical Courts imagined that they were independent of the Pope or the canon law, would be about as reasonable, as to argue from the Grand Assize, and the possessory assizes that the feudal courts admitted the royal claim to jurisdiction over all cases of ownership or possession of freehold.

The state successfully asserted its rights to the jurisdiction which it claimed. But we can see from the benefit of clergy,1 and from the statute of Circumspecte Agatis,2 and the Articuli Cleri3 that it was willing to allow a large sphere to the Ecclesiastical Courts and the canon law. In one respect, indeed, it allowed to the rival jurisdiction a larger authority than it possessed in any other country in Europe. It abandoned to it absolute jurisdiction over testamentary and intestate succession to personal property.4 Where the jurisdiction of the Ecclesiastical Courts was admitted, the state automatically enforced their sentences of excommunication by the imprisonment of the excommunicate.5

Thus matters stood before the Reformation. The jus commune of the Western Church was administered in the Ecclesiastical Courts. The common law was administered in the royal courts. The royal courts claimed exclusive jurisdiction in certain matters. Other matters they were content to leave to the Ecclesiastical Courts. Certain rights allowed to the pope by the canon law had been curtailed by English statutes, which the royal courts would enforce if called upon to do so. Within their respective limits the canon law enforced by the Ecclesiastical Courts, and the common law enforced by the royal courts were separate systems of law, differing in many of their rules, deriving their binding force from different sovereigns.

The claims made by these rival systems produced much friction. But the prevailing theories as to the relations between church and state made it impossible for either of these rival powers to do without the other. Papal dispensations from the rules of the canon law acknowledged the power of the pope; but they enabled the crown to use the revenues of ecclesiastical benefices for the maintenance of his civil service. Diplomatic reasons demanded some kind of arrangement; and at the latter end of the Middle Ages an arrangement was arrived at on a profit-sharing basis. Such an arrangement produced peace; but it was a peace which made reform impossible. Abuses were allowed to spring up unchecked until an entirely new theory as to the relations between Church and State materially altered both the law administered in the Ecclesiastical Courts, and their relation to the English judicial system.

(b) The Post-Reformation period.

At the beginning of the 16th century many circumstances combined to show that the old theories as to the relations between Church and State were breaking down. All over Europe centralized territorial states were taking the place of the loosely knit feudal monarchies of the Middle Ages. The wealth and corruption of the church, and more particularly the abuses of the Ecclesiastical Courts, were exciting extreme unpopularity. The doctrines of the church, also, were beginning to be assailed with the more effective weapons which the New Learning had provided. The better class of ecclesiastical statesmen saw clearly that some reform was necessary.

England, like the rest of Europe, felt these influences. Cases like that of Hun1 bore witness to the unpopularity of ecclesiastics, their courts, and officials. We can see from the case of Standish2 that Henry VIII., backed by popular opinion, was minded to assert a larger control over ecclesiastics. Wolsey, who was perhaps the most far-seeing statesman of the day, was already taking measures to reform the corruption of the church. But neither Henry nor England had any desire to separate from the general system of the Western church. There were but few adherents to Protestant doctrine. If the pope would consent to Henry’s demands for an increased control over the clergy; if the church had been reformed as Wolsey desired, there appeared to be no necessity for a break with Rome. The Anglican church might have had a history very similar to that of the Gallican church.1

The divorce question made this solution impossible. The pope coerced by Charles V. could not grant the divorce. A break with Rome was therefore necessary. Although the break was accomplished with as little external change as possible, it necessarily involved an altogether new view as to the relations between Church and State.

The tentative way in which the separation was carried out shows how unwilling Henry was to break with the past. The attitude of the pope, however, rendered separation inevitable. In the preambles to Henry’s statutes we may see the gradual elaboration of the main characteristic of the changed relations of Church and State—the theory of the Royal Supremacy. The dual control over things temporal and things spiritual is to end. The Crown is to be supreme over all persons and causes. The Canon Law of the Western Church is to give place to the “King’s Ecclesiastical Law of the Church of England.”2

The Reformation Parliament met in 1529 after the fall of Wolsey. The first acts of that Parliament, carried in spite of the opposition of the clergy, were directed against certain abuses in the church and its courts.3 The clergy also (1531) recognised the royal Supremacy “so far as the law of Christ allows.”4 In 1532 it was so clear, from the unsatisfactory progress of the divorce, that there would be legislation aimed more directly at Rome, that Warham, the archbishop of Canterbury, drew up a formal protest against all statutes to be passed in the ensuing session, which should prejudice the ecclesiastical or papal power.5 An act was passed against the payment of Annates. But the act is still respectful to “our Holy Father the Pope”; who was still allowed to charge certain fees for the consecration of bishops; and the king was given a discretion as to its enforcement.1 In 1533 the Statute of Appeals was the necessary consequence of the king’s marriage and of the divorce proceedings taken before Cranmer.2 In the preamble to that statute the new relations between Church and State were sketched by the king himself. We have in it the first clear statement of the new Anglican position. “By divers sundry old authentic histories and chronicles it is manifestly declared . . . that this realm of England is an empire . . . governed by one supreme head and king . . . unto whom a body politic, compact of all sorts and degrees of people, divided in terms and by names of spirituality and temporality be bounden and owe to bear next to God a natural and humble obedience; he being also institute . . . with plenary whole and entire power, pre-eminence, authority, prerogative and jurisdiction to render and yield justice and final determination to all manner of folk, residents, or subjects within this his realm in all causes . . . happening to occur . . . within the limits thereof without restraint or provocation to any foreign princes or potentates of the world. The body spiritual whereof having power when any cause of the law divine happened to come in question or of spiritual learning, it was declared . . . by that part of the said body politic called the spirituality (now being usually called the English Church) which . . . is sufficient and meet of itself, without the intermeddling of any exterior person . . . to declare and determine all such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain . . . : and the laws temporal for trial of property of lands and goods for the conservation of the people of this realm in unity and peace . . . was and yet is administered . . . by sundry judges and administers of the other part of the said body politic called the temporality, and both their authorities and jurisdictions do conjoin together in the due administration of justice the one to help the other: and . . . the king his most noble progenitors and the nobility and commons of this said realm at divers and sundry Parliaments as well in the time of king Edward I., Edward III., Richard II., Henry IV., and other noble kings of this realm made sundry . . . laws . . . for the entire and sure conservation of the prerogatives, liberties, and pre-eminences of the said imperial crown of this realm, and of the jurisdictions Spiritual and Temporal of the same, to keep it from the annoyance as well of the see of Rome as from the authority of other foreign potentates.”1 The king is supreme in his realm. His courts, spiritual and temporal, can decide for themselves all cases which occur within the realm. This has always been the law. The anti-ecclesiastical statutes of the Middle Ages are vouched to support the historical theory put forward by the state. When the state’s theory has been accepted by the church, it will be an appropriate statutory foundation for the modern ecclesiastical claims of the church, now part of the state, and subject to the royal supremacy.

Later statutes of Henry’s reign further amplified and defined the supremacy which he claimed. The Act of Supremacy recognised the king as “the only Supreme Head in earth of the Church of England,”2 having full power to correct all “errors, heresies, abuses, offences, contempts, and enormities” which by any manner of spiritual authority ought to be reformed; and the oath taken in accordance with this act denies to the pope any other authority than that of bishop of Rome.3 It was in accordance with this act that Henry gave an extensive commission to Cromwell to act as his Vicar-General. It is clear that Henry is beginning to regard himself as possessing all that “usurped” authority which once belonged to the pope. This is shown by the act of 15454 which declares that the king has power to exercise all ecclesiastical jurisdiction, “and that the archbishops, bishops, archdeacons, etc., have no manner of jurisdiction ecclesiastical but by, under, and from the king.” In accordance with this theory the bishops and archbishops took out commissions to exercise their ordinary powers and authorities.1

Most of the other acts of Henry’s reign are the logical consequence of these changed relations between church and state. Annates and all other payments to Rome were definitely cut off.2 In the act for the submission of the clergy3 it was provided that no new canons should be enacted, except in convocations summoned by the king’s writ, with license to assemble and make canons. The existing canons were to be revised by a committee of 32, of whom 16 were chosen from layment and 16 from ecclesiastics. Further provision for this revision of the canon law was made by other statutes of this reign; and it was enacted that, in the meantime, those which did not conflict with God’s law and the king’s should be still in force.4 No such revision was in fact made in Henry VIII.’s reign. But the teaching of the canon law was in every way discouraged at the universities. In place of lectures on canon law lectures on civil law were established. Degrees soon cease to be taken in canon law as a separate faculty.5 The act of 1545 allowed the doctors of the civil law, though laymen and married, to exercise ecclesiastical jurisdiction. This discouragement of the canon law was a necessary consequence of Henry’s settlement. It is clear that the canon law as taught in the Middle Ages would have been in entire conflict with the new order.

Thus it may be said that the great work of Henry’s reign was to effect an entire change in the relations between church and state. The church ceased to form part of the Western church in communion with Rome. The law of the church ceased to be the canon law of Rome. But beyond that there was little change. The Act of the Six Articles reaffirmed most of the leading doctrines of the Roman Catholic Church.1 The existing organization of the Ecclesiastical Courts was maintained. The king had put himself in place of the pope. The king’s ecclesiastical law administered by civilians was put in place of the canon law of Rome. “The Reformation,” says Archdeacon Hale,2 “if under that general term we may include the whole series of events by which this country was freed from the authority of the Bishop of Rome, was in its commencement nothing more than a legal and political Reformation; a renunciation of the intrusive power of the Pope over the King’s subjects, and an assertion of the competency of the Anglican Church to decide by her own tribunals all questions relative to Divine Law and to spiritual learning. A Reformation in religion soon followed; but it was a providential and not a necessary consequence.”

Little need be said of the reigns of Edward VI. and Mary.3 They are episodes which added little of permanent importance to Henry’s settlement. Edward VI. applied the doctrine of the royal supremacy in its extreme form. Henry had left the authority of the bishops unimpaired. Edward in many cases excluded their authority. He directly appointed them. Process in the Ecclesiastical Courts ran in his name. Only those who had special authority from him could exercise jurisdiction. Frequent commissions issued by him, in virtue of his supremacy, in many cases superseded the authority of the ordinary courts. As we might expect, their jurisdiction fell into contempt.4 The reform in doctrine and the reform of the canon law was hastily pressed forward. Mary on the other hand went to the opposite extreme. The old state of things as it existed in 1529 was as far as possible restored.

Elizabeth’s reign is marked by a recurrence to Henry VIII.’s principles, both as regards the relation between church and state, and as regards the position and jurisdiction of the Ecclesiastical Courts. “The policy of Elizabeth and her ecclesiastical settlement is historically linked on directly to that of her father.”1 The church was given a more definitely Protestant character, but with as little change of the older order as was possible. In the Acts of Supremacy and Uniformity the relations between church and state are permanently and definitely ascertained.

The Act of Supremacy2 annexed to the “imperial crown of this realm” all “such jurisdictions, privileges, superiorities and pre-eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath heretofore been or may lawfully be exercised or used for the visitation of the ecclesiastical state, and persons, and for reformation, order and correction of the same and of all manner of errors, heresies and schisms abuses offences contempts and enormities.” The supremacy was of wide and somewhat indefinite extent. But it did not go the whole length of Henry VIII.’s later statutes or of Edward VI.’s statutes.3 The crown made no claim to “the ministering either of God’s Word or of the Sacraments.”4 The older organization of the Ecclesiastical Courts was maintained. The crown simply claimed to be supreme over all causes and persons to the exclusion of any foreign power.

With a view to the better maintenance of the Supremacy, and the ecclesiastical settlement therein involved, the crown was empowered to entrust its exercise to commissioners appointed under the Great Seal.5 In thus exercising the royal jurisdiction by commission precedents of Edward VI. and Mary’s reign were followed.6 The power was exercised when the Court of High Commission was created in 1559.

Some attempts were made to pursue the plan of revising the canon law. But though the revision had been completed by Cranmer and Peter Martyr, it never obtained legislative sanction.7 The canon law, so far as it was in harmony with the new settlement, still continued to be administered by the civilians, who combined their practice in the Ecclesiastical Courts with their practice in the court of Admiralty.1 As the exercise of the jurisdiction of the court of Admiralty was controlled by the writ of prohibition, so (in spite of all protests)2 was the exercise of the jurisdiction of the Ecclesiastical Courts.

Administered in this way, the law of the church, like the maritime law, has ceased to possess an international character.3 It has become national like the church itself. “The ecclesiastical law of England,” said Lord Blackburn,4 “is not a foreign law. It is a part of the general law of England—of the common law—in that wider sense which embraces all the ancient and approved customs of England which form law, including not only that law administered in the courts of Queen’s Bench, Common Pleas, and Exchequer, to which the term common law is in a narrower sense confined, but also that law administered in Chancery and commonly called Equity, and also that law administered in the courts Ecclesiastical, that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm, and form . . . the king’s ecclesiastical law.”

But though Henry’s settlement as to the royal supremacy, as to the courts, and as to the ecclesiastical law was followed in its main lines, the doctrines of the church were given a more definitely Protestant character. The matters which the Court of High Commission could declare to be heresy were defined.1 Statutory force was given by the Act of Uniformity, to the second book of common prayer of Edward VI.’s reign, with certain alterations and additions.2 Not only the Ecclesiastical Courts, but also the justices of oyer and terminer and of assize, were empowered to see to the observance of the Act.3

This settlement has been fully accepted both by the judges and the bishops. In Caudrey’s Case4 “It was resolved that the said Act (the Act of Supremacy) . . . concerning ecclesiastical jurisdiction was not a statute introductory of a new law, but declaratory of the old.”5 The relations between church and state were explained almost in the words of the preamble of Henry VIII.’s statute of Appeals; and the historical argument, as to the continuous independence of the church, hinted at in that preamble, was expanded and improved. Though the Canon law had been laid under contribution it never was the law of the Church of England. “As the Romans fetching divers laws from Athens, yet being approved and allowed by the state there, called them notwithstanding jus civile Romanorum: and as the Normans borrowing all or most of their laws from England, yet baptized them by the name of the laws and customs of Normandy: so, albeit the kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here by and with a general consent, are aptly and rightly called the King’s Ecclesiastical Laws of England.”1 In 1851 the two archbishops and the twenty bishops of England declared the “undoubted identity of the church before and after the Reformation”; and that though severed from Rome the church had in no respect severed her connexion “with the ancient Catholic Church.”2

Neither the legal nor the doctrinal theory should blind us to the fact that a very real change had been made at the Reformation. The relations between church and state, and the position of the Ecclesiastical Courts were fundamentally altered. The church was brought within the state. It was subjected to the power of the crown. That has involved in the course of time other consequential changes. Having been brought within the state, its position has been modified with changed ideas as to the balance of powers within the state, and as to the limits of state control. The court of High Commission wielded the royal supremacy, when the royal supremacy over the church conferred powers as large and indefinite as the royal prerogative in the state. That court disappeared, with the court of Star Chamber, when so large a prerogative was found incompatible with liberty.3 Similarly the royal supremacy conferred a wide dispensing power. That too was limited at the Revolution when it was found to put too large a discretionary power in the hands of the crown.1 In later times the proper sphere of ecclesiastical jurisdiction has been curtailed. Membership of the church is not considered a necessary qualification for full rights in the state. The members of other religious communities have been admitted to share them. The jurisdiction of the Ecclesiastical Courts has necessarily been weakened by the disappearance of the idea that it is the duty of the state church to use coercive measures to secure, pro salute animæ, the morality of all the members of the state. On the other hand later statutes have provided new courts or new machinery for the more effective discipline of the clergy in communion with the church.2

In this manner the Tudor settlement, without sacrificing what was valuable in the institutions and the doctrines of the past, has founded a church well fitted to be an English State Church, because, like the constitution of the English State, it is capable of adaptation to altered circumstances without a palpable breach of continuity. In no respect did the Tudors more clearly show their capacity to understand and to represent their people. In the age of Elizabeth, when religious feeling ran high, it often appeared to the more enthusiastic that her establishment was neither Protestant nor Catholic. But however illogical it appeared to the fanatic, it appealed to the more moderate. Being successful it did not long want defenders; and it has secured defenders so skilful that they have made love for the Church an essential factor in English political life.

The lawyer has deduced from the uncertain utterances of Anglo-Saxon history, and from the anti-ecclesiastical legislation of the Middle Ages, the existence, from the earliest times, of an independent national church. The theologian has conferred upon it an unique Catholicity. The benches of judges and bishops have enunciated the same doctrines in language only technically different. In fact the Reformation did in a similar manner for the church, what the Revolution did for the state. Macaulay says of the Revolution, “the change seems small. Not a single flower of the crown was touched. Not a single new right was given to the people. The whole English law, substantive and adjective, was in the judgment of all the greatest lawyers, of Holt and Treby, of Maynard and Somers, almost exactly the same after the Revolution as before it. Some controverted points had been decided according to the sense of the best jurists; and there had been a slight deviation from the ordinary course of succession. This was all; and this was enough.” The same sentiments, applied to the church, are both good law and sound doctrine. But if we look a little beyond the immediate consequences of either the Reformation or the Revolution we can see that the changes involved are very far reaching. The result of the Revolution was the transference of control over the executive from the prerogative to Parliament through the growth of the cabinet system. The result of the Reformation was the abolition of the dual control of church and state, the transference to the state of complete control over the church, and the substitution for the canon law of the King’s Ecclesiastical Law. The crown’s prerogative still retains traces of its origin in a feudal society; and it could be described by Blackstone in terms which might have commanded the approval of a Stuart king, or the censure of a Stuart Parliament. The Church still retains her courts with some remnants of their ancient jurisdiction, and in her formularies some traces of a Catholicism older than that of Rome.

(ii) The Ecclesiastical Courts.

The courts which have administered the ecclesiastical law at different periods may be divided into the following groups:—

(1) The ordinary courts of the Diocese, the Peculiar and the Province.

(2) The High Court of Delegates.

(3) The Court of High Commission.

(4) The Statutory courts of the 19th century.

(1) The ordinary courts of the Diocese, the Peculiar, and the Province.

(a) The Diocese.

The Bishop of each diocese held a Consistory Court for the diocese. From about the middle of the 12th century the Chancellor or “Official” of the bishop usually presided over this court. He was the ordinary judge competent, like the judge of the court of Admiralty, to exercise all the jurisdiction inherent in his principal, except in such cases as the bishop might expressly reserve for his own hearing. In time he comes to be the permanent judge of the court, and retains office after the death, removal, or beyond the pleasure of the bishop by whom he was appointed.1 But the bishop has never lost the right of withdrawing cases from his cognisance, if he wishes to hear them himself.2 Similarly, the bishop sometimes delegated jurisdiction over certain parts of his diocese to his “commissary.”3 There was an appeal from the Consistory Court to the Provincial Court of the archbishop.

Each archdeacon in the diocese held a court for his archdeaconry.4 The ordinance of William I., removing ecclesiastical pleas from the hundred court, mentions both the archdeacon and the bishop as persons who held pleas in the hundred court.5 In its origin the office of archdeacon was ministerial. He held a court as a deputy of the bishop, just as the steward held the manorial court as a deputy of his lord. “But the tendency of all such institutions is to create new jurisdictions, and, early in the 12th century, the English archdeacons possessed themselves of a customary jurisdiction.”6 It was possibly with a view to stop the encroachments of the archdeacon that the bishops adopted the plan of exercising their jurisdiction through officials. An appeal lay from the archdeacon’s court to the Consistory Court.1

(b) The Peculiar.

The tendency in all feudal states was to vest jurisdiction in any considerable landowner. This tendency was felt in the church as well as in the state. Just as in the state the jurisdiction of the ordinary communal courts was displaced by the franchise jurisdiction, so in the church the jurisdiction of the ordinary Diocesan courts was displaced by the jurisdiction of the Peculiar Courts. One cause for the growth of these Peculiar Courts was the conflict between the bishops and their chapters, which resulted in the apportionment of the land, and jurisdiction over the land, between the bishop and the chapter. Thus both the bishops and the deans of the chapters possessed Peculiar Courts. A second cause was the exemption of the greater abbeys from episcopal jurisdiction. A third cause was a similar exemption of the king’s chapels royal.2 The variety of these Peculiar Courts can be seen from the statement of the ecclesiastical commissioners of 1832,3 that “there are Peculiars of various descriptions in most Dioceses, and in some they are very numerous: Royal, Archiepiscopal, Episcopal, Decanal, Subdecanal, Prebendal, Rectorial, and Vicarial; and there are also some Manorial Courts.” Some of these Peculiars were wholly exempt from Episcopal, and even from Archiepiscopal control. But there was an appeal from them in earlier days to the Pope; in later days to the High Court of Delegates. Recent legislation has abolished most of these courts.1

(c) The Province.

The archbishops of Canterbury and York possessed various Provincial Courts.2 The Provincial Courts of the Archbishop of Canterbury were the following:—

(α) The court of the “Official Principal” of the archbishop (usually known as the Court of the Arches3 ) was at once the court of appeal from all the Diocesan Courts, and also a court of first instance in all ecclesiastical causes. The latter jurisdiction it attained by a series of encroachments (not without protest on the part of the bishops) analogous to the encroachments of the papal jurisdiction.4 This jurisdiction was restrained by the Statute of Citations,5 which put an end to the practice of citing persons outside their dioceses, except on appeals, on request of the bishop, or in case of the bishop’s negligence to hear the case. “As official principal the judge was held to possess all the judicial power of the archbishop . . . he issued process in his own name, and seems in all respects to represent the archbishop in his judicial character as completely as the chief justice represented the king.”6 Whether or no this deprived the archbishop of the right to sit and act personally in his court is not quite clear.7

(β) The Court of Audience. Just as the bishop did not deprive himself of all jurisdiction by delegation to an official or commissary, so the archbishop did not originally deprive himself of all jurisdiction by delegation to the official principal. He possessed a jurisdiction concurrent with that of the Court of the Arches, which was exercised in the Court of Audience. In later times this jurisdiction was exercised by the judge of the Court of Audience.1 At one time the archbishop may have exercised a considerable part of his jurisdiction in this court. It is mentioned in a 17th century account of the Ecclesiastical Courts; but it does not appear to have been revived as a separate court after the Restoration.2 It has now fallen into disuse. It must not be confused with the personal jurisdiction which the archbishop has over his suffragan bishops.3

(γ) The Prerogative Court.4 This court was sometimes presided over by the official principal, sometimes by a special commissary. It took cognisance of the testamentary jurisdiction belonging to the archbishop. It originally sat in the archbishop’s palace. It was moved, about the time of the Reformation, to Doctors’ Commons. The archbishops attracted to this court most of the testamentary business of the country. Whenever a man left bona notabilia in more than one diocese they claimed to oust the jurisdiction of the bishop.5 In spite of much opposition they made good their claims, which were recognised by the canons of 1604.6

(δ) The Court of Peculiars.7 This Court was held by the Dean of the Arches at Bow church for the thirteen London parishes, which were exempt from the diocesan jurisdiction of the bishop of London.

(ε) The Court of the Vicar-General in which the bishops of the province are confirmed.8

The provincial courts of the archbishop of York were the Chancery Court, the Prerogative Court, and the Court of Audience. These courts corresponded to the Court of the Arches, the Prerogative Court, and the Court of Audience of the archbishop of Canterbury.1

The Public Worship Regulation Act2 provides for the appointment by the archbishops of Canterbury and York of a single judge for their provincial courts. Such person is to hold the posts of the official principal of the Arches Court and the Chancery Court, and Master of the Faculties3 to the archbishop of Canterbury. The person appointed must be either a practising barrister of ten years’ standing, or a judge of one of the Superior Courts. He must also be a member of the Church of England. He holds office during good behaviour.

There is a question whether at any time Convocation ever acted as a court.4 There is some evidence to show that in the 14th and 15th centuries persons accused of heresy were brought before Convocation by the bishop who had cognisance over the case. But the members of Convocation did not vote on such trials. It was probably rather in the nature of a body of assessors to the archbishop than a court possessing jurisdiction. Coke, it is true, treats it as having once possessed jurisdiction in cases of heresy;5 and a majority of the judges in Whiston’s case6 seemed to think that it might still possess such jurisdiction. The statute 24 Henry VIII. c. 12 made the upper house a final court of appeal in ecclesiastical causes which concerned the king. Possibly the idea was to follow up the analogy between the temporal and spiritual jurisdictions, suggested in the preamble to the statute, by giving to it the position of the House of Lords. But this jurisdiction was, as we shall see, taken away by 25 Henry VIII. c. 19. It is clear that Convocation exercises no jurisdiction at the present day.

(2) The High Court of Delegates.

In the pre-Reformation period there was practically an unlimited right of appeal to the pope in all cases which fell within the jurisdiction of the Ecclesiastical Courts. This right was fettered to a slight degree by the rules made by the pope himself,1 and by the statutes of præmunire, in those cases in which the civil tribunals claimed exclusive jurisdiction. But where it existed the system of appeals and rehearings was, or might be, never ending. “Not only might a matter in dispute be treated over and over again, delegacy superseding delegacy, and appeal being interposed on every detail of proceeding one after another, but even after a definitive decision a question might be reopened and the most solemn decision be reversed on fresh examination. On this system of rehearing there was practically no limit, for, however solemn the sanction by which one pope bound himself and his successors, it was always possible for a new pope to permit the introduction of new evidence or a plea of exceptions. In this way the Roman Court remained a resource for ever open to litigants who were able to pay for its services, and the apostolic see avoided the imputation of claiming finality and infallibility for decisions which were not indisputable.”2

The Statute for the restraint of appeals3 prohibited all appeals to Rome, and provided that certain4 appeals should go from the archdeacon to the bishop, and (within 15 days) from the bishop to the courts of Arches or Audience, and from those courts to the archbishop himself. His decision was final except in cases touching the king. In that case there was an appeal from any of the Ecclesiastical Courts to the upper house of Convocation. This act was superseded by one passed in the following year which provided a new court of appeal for all ecclesiastical causes.5 The court created by this act becomes known as the High Court of Delegates. The act provided as follows:—“For lack of justice at or in any of the courts of the archbishops of this realm, or in any of the king’s dominions, it shall be lawful for the parties grieved to appeal to the King’s Majesty in the King’s court of Chancery; and that upon every such appeal a commission shall be directed under the Great Seal to such persons as shall be named by the King’s Highness his heirs and successors, like as in case of appeal from the Admiral’s court, to hear and definitively determine every such appeal, and the causes concerning the same. And that such judgment as the said commissioners shall make and decree . . . shall be good and effectual, and also definitive.”1 An appeal to the same body was provided from such peculiar jurisdictions as were exempt from episcopal or achiepiscopal control.2

A person desiring to appeal addressed a petition to the crown in Chancery, on which a commission of appeal issued appointing certain commissioners. If any of these commissioners died pending the appeal, if they were equally divided, or if, for any reason, it was desired to increase the strength of the court, a “commission of adjuncts” issued, adding certain persons to the court. It followed that the court was differently constituted for the hearing of each appeal.3

Henry VIII.’s statute declared the judgment of the Delegates to be final. But it was decided by the Elizabethan lawyears that the crown could, like the Pope, issue a commission of Review, to hear the whole case over again.4

The Court was not a court of first instance. It heard appeals from the provincial courts, and from the exempt peculiar jurisdictions. It did not control the court of High Commission, the abolition of which necessarily added to the number of cases heard before it.4

The crown had an absolute discretion as to the persons to be appointed. But, as the lawyers of Doctors’ Commons were the only lawyers acquainted with canon or civil law and procedure, certain of them were usually included in the commission. In some of the earlier cases bishops and judges were included. In the 18th century the bishops are rarely included, and are at length entirely excluded.5 It was stated in 1832 that in ordinary cases the delegates were three puisne judges and three civilians, though, in special cases, temporal peers, and other judges might be added.1

The Court was not satisfactory. It was a shifting body. No general rules of procedure could be established. It did not as a rule give reasons for its decisions. Its members were only paid a guinea a day; and consequently it was usually composed of the junior civilians. On them, the judges of the Common Law Courts, appointed as delegates, were obliged to rely for their law.2

In consequence of the dissatisfaction felt at the working of this tribunal the Ecclesiastical Commission of 1832, in a special report, recommended the transfer of its jurisdiction to the Privy Council. This recommendation was carried out by 2, 3 Will. IV. c. 92.3 The jurisdiction is now exercised by the Judicial Committee of the Privy Council created by 3, 4 Will. IV. c. 41.4

(3) The Court of High Commission.

The Court of High Commission was created, as we have seen, under powers given to the crown by the Act of Supremacy.5 The first commission was issued in 1559 to Parker, Grindal, and seventeen others. Their duties were to enforce the Acts of Supremacy and Uniformity, and to deal generally with ecclesiastical offences. They could conduct their enquiries with or without a jury. They could summon persons on suspicion. They could examine any one on oath.6 The later commissions are all formed on the model of the first. But they show a tendency to increase the jurisdiction of the commissioners. They were entrusted with the acts for the protection of the Establishment passed later in the reign. The qualifying clause, “according to the authority and power limited, given, and appointed by any laws or statutes of the realm,” which is inserted in the earlier commissions, was omitted in 1596. The authority given to the commissioners was not diminished under James I. and Charles I. In 1613 they were empowered to execute the Star Chamber rules as to the censorship of the press, and to hear complaints of wives against husbands. In the commission of 1625 it was provided that, during the session of Convocation, their powers should be exercised only by the bishops in Convocation. But this clause was dropped in the following reign.1

The Court entertained all important causes of doctrine and ritual. During its existence not many of these causes came before the Court of Delegates. But the causes which it most frequently entertained were proceedings in respect of immorality and misconduct of the clergy and laity, and proceedings in respect of recusancy and non-conformity. It did not supersede the ordinary Ecclesiastical Courts. It exercised a concurrent jurisdiction.2

The Commissioners could exercise their powers throughout England. But, as a rule, separate commissions were issued for the provinces of York and Canterbury, and sometimes for separate dioceses.3 Their powers were, as we have seen, wide and indefinite; and, except in the commissions of 1611, 1613, 1620, and 1625, their exercise was subject to no appeal.4

A strong court of this nature was necessary to support the Established Church against its Puritan and Catholic enemies.5 It was not at first unpopular. But, as Mr. Prothero points out, “The efficiency of the system . . . and the general results produced, depended mainly on the views and characters of the archbishops and their episcopal colleagues, on whom fell almost all the burden of carrying the commission into effect.”1 In the Stuart period, as we have seen, the state was divided into two camps.2 Just as the supporters of the Council, the Admiralty, and the court of Chancery, relying on the prerogative, opposed the common lawyers, who led the parliamentary opposition; so the supporters of the State Church relied upon the court, which exercised the Royal Supremacy, in their efforts against sectaries of all kinds. The Puritans necessarily found themselves in alliance with the common lawyers; and in this manner a religious element was imported into the political and legal controversy, which was destined to prove, for an interval, fatal to the constitution. Though Coke had, in Caudrey’s case,3 unduly magnified the Royal Supremacy, he found, in his Fourth Institute, many reasons for showing that the Court of High Commission had exceeded its powers. He denied it the right to fine and imprison.4 He commented upon the lengthy provisions of the more recent commissions and the denial of all right to appeal.5 He contended that it should deal only with important cases.6 The common lawyers followed his lead. The action of the court was fettered by writs of prohibition. Persons imprisoned by it were released by writs of habeas corpus.7 It was attacked by Parliament in 1610,8 and necessarily fell with the victory of the Parliamentary party in 1640.9 The same act abolished all the other Ecclesiastical Courts. The court of High Commission was not restored at the Restoration with the other Ecclesiastical Courts.10

(4) The Statutory Courts of the 19th century.

Certain statutes of the last century have provided new and more convenient procedure, and, in some cases, new courts, for the exercise both of criminal and civil jurisdiction.

The procedure of the Ecclesiastical Courts had become so dilatory and expensive that much difficulty had been found in bringing to justice clergy guilty of immoral conduct. The ecclesiastical commissioners reported in 1832 that, “some cases of a flagrant nature, which have occurred of late years, have attracted the attention of the Public to the corrective Discipline of the Church, as administered by the Ecclesiastical Courts, and have at the same time exhibited in a strong light the inconveniences which have attended the application of the ordinary process of the Courts to such suits; namely, an injurious delay in effecting the desired object of removing Ministers of immoral and scandalous lives from the administration of the sacred offices of the Church; and the large expense incurred in such suits.”1

The Church Discipline Act of 18402 was passed to deal with the cases of clerks “who may be charged with any offence against the laws ecclesiastical, or concerning whom there may exist scandal or evil report as having offended against the said laws.”3 It enacted that no criminal suits be instituted otherwise than according to procedure provided by the Act.4

In cases where a clerk is charged with an offence the bishop, may, on the application of a complainant, or of his own motion, issue a commission to five persons to inquire. They must report to the bishop whether there are prima facie grounds for instituting proceedings.5 With the consent of the party accused, the bishop may pronounce sentence without further proceedings.6 If he does not consent, articles are drawn up against the party accused.7 If he admits the truth of the articles the bishop (or his commissary specially appointed for that purpose) may pronounce sentence.8 If not, either the bishop assisted by three assessors may hear the case, or the bishop may send the case to be tried by the court of the Province.9 But the letters of request for this purpose must have been sent before the filing of the articles.10 An appeal is provided to the court of the Province and to the Privy Council.11 In order to avoid the double appeal, most cases were sent by the bishop to the court of the Province in the first instance.1

The provisions of the Act did not apply to persons instituting suits to establish a civil right.2 They did apply to all exempt and peculiar places, except those belonging to bishoprics or archbishoprics.3 Pending the enquiry or trial, the bishop was empowered to inhibit the party accused from continuing to perform the services of the church.4 This act has for most purposes been repealed, in respect of offences committed by clergymen, which come within the provisions of the Clergy Discipline Act of 1892.5

The Act provides that a clergyman convicted of treason, certain felonies and misdemeanours, or adultery, or against whom a bastardy order, or a decree for judicial separation has been made, shall ipso facto forfeit his preferment within twenty-one days.6 It provides that a clergyman may be prosecuted, in the Consistory Court of his diocese, by any of his parishioners, if he is convicted by a temporal court of an act (other than those named above) constituting an ecclesiastical offence, or, if he “is alleged to have been guilty of any immoral act, immoral conduct, or immoral habit, or of any offence against the laws ecclesiastical, being an offence against morality, and not being a question of doctrine or ritual.”7 The bishop may in all cases disallow the prosecution if he sees fit. The trial is before the bishop’s chancellor; but, if either party so requires, questions of fact must be decided by five assessors.8 There is an appeal on any question of law, and, with the leave of the appellate court, on any question of fact, either to the court of the Province or to the Privy Council.9

In 1874 the Public Worship Regulation Act10 gave to the existing Ecclesiastical Courts a new machinery for the trial of offences against the ceremonial law of the church. An archdeacon, a churchwarden, or any three parishioners of the archdeaconry or parish within which a church or burial ground is situate, may represent to the bishop that unlawful additions have been made in the fabric or ornaments of the church, or that there has been use of unlawful ornaments, or neglect to use prescribed ornaments, or that there has been failure to comply with the rules of the book of Common Prayer, as to the conduct of services.1 The bishop may, if he pleases, refuse to institute proceedings.2 If he thinks that proceedings should be taken, he may himself, with the consent of both parties, deal finally with the case.3 If they do not consent, the case is heard by the judge of the court of the Province.4 From his decision an appeal lies to the Privy Council.5

The working of this act has not been found to be altogether satisfactory. The ecclesiastical commissioners of 1883 reported that it added little to the powers conferred on the Court of the Arches by the Church Discipline Act; and that, in practice, proceedings taken under it were no more convenient than proceedings taken under the earlier act.6

The Benefices Act of 18987 gave to the bishop in certain cases8 the power to refuse to institute a person presented to a benefice. An appeal from such refusal lies to the archbishop of the Province, and to a judge of the supreme court, nominated pro hac vice by the Lord Chancellor.9 The judge decides any question of law, and finds the facts. The archbishop gives judgment as to whether the facts so found renders the presentee unfit for the duties of the benefice.10 From this decision there is no appeal.10 The same tribunal is given a jurisdiction in cases where a bishop has superseded and inhibited an incumbent, by reason of negligent performance of his duties. The incumbent can in such cases appeal to this tribunal. The judge decides whether there has been negligence. The archbishop, if negligence is found, decides whether it is good ground for the inhibition.11

(iii) The jurisdiction of the Ecclesiastical Courts.

In the 12th century the Ecclesiastical Courts claimed to exercise wide jurisdiction. (1) They claimed criminal jurisdiction in all cases in which a clerk was the accused, a jurisdiction over offences against religion, and a wide corrective jurisdiction over clergy and laity alike “pro salute animæ.” A branch of the latter jurisdiction was the claim to enforce all promises made with oath or pledge of faith. (2) They claimed a wide jurisdiction over matrimonial and testamentary causes. Under the former head came all questions of marriage, divorce, and legitimacy; under the latter came grants of probate and administration, and the supervision of the executor and administrator. (3) They claimed exclusive cognisance of all matters which were in their nature ecclesiastical, such as ordination, consecration, celebration of service, the status of ecclesiastical persons, ecclesiastical property such as advowsons, land held in frankalmoigne, and spiritual dues.

These claims were at no time admitted by the state in their entirety. In course of time most of these branches of jurisdiction have been appropriated by the state. All that is practically left at the present day is a certain criminal or corrective jurisdiction over the clergy, and a certain jurisdiction in respect of some of the matters contained under the third head. The history of this jurisdiction we must now sketch.

(1) Criminal and corrective jurisdiction.

(a) Criminal jurisdiction.

In the 12th century the Church claimed that all clerks should be exempt from any kind of secular jurisdiction, and, in particular, that “criminous clerks” should be subject to the jurisdiction of the Ecclesiastical Courts alone.1 In answer to this claim Henry II., in 1164, propounded the scheme contained in the third clause of the Constitutions of Clarendon.2 He contended that that scheme represented the laws in force in the time of Henry I. According to the clause the clerk is accused before the temporal court. He must there plead his clergy. He will then be sent to the Ecclesiastical Court for trial, and a royal officer will attend the trial. If he is found guilty and degraded the royal officer will bring him back, as a layman, to the temporal court to suffer the layman’s punishment. Becket objected to this scheme on three grounds:—(1) A clerk ought not to have been accused before the temporal court; (2) a royal officer ought not to have been present in the Ecclesiastical Court; (3) further punishment by the lay court involved an infringement of the rule that no man ought to be punished twice for the same offence. The first two of these objections were good according to the canon law. As to the third the canon law was not at that date clear; but the principle for which Becket contended was shortly afterwards condemned by Innocent III.1 The results of Becket’s murder were curious. The temporal courts maintained their claim to bring the criminous clerk before them. They abandoned their claim to punish the degraded clerk. This abandonment gave rise to the Privilege or Benefit of Clergy.

Originally the Benefit of Clergy meant that an ordained clerk charged with felony could be tried only in the Ecclesiastical Court. But, before the end of Henry III.’s reign, the king’s court, though it delivered him to the Ecclesiastical Court for trial, took a preliminary inquest as to his guilt or innocence.2 The Ecclesiastical Court then tried the accused by the obsolete process of compurgation.3 The court could sentence to degradation, imprisonment or whipping. The Benefit of Clergy did not apply to high treason, to breaches of the forest laws, to trespasses or misdemeanours.4

In course of time the Benefit of Clergy entirely changed its nature. It became a complicated series of rules exempting certain persons from punishment for certain criminal offences.1

(1) The class of persons who could claim it was enlarged, and distinctions were drawn between them. In 13502 it was enacted that secular as well as religious clerks should have the privilege. After this statute the privilege became extended to all who could read. In 17053 even this requirement was abolished. But traces of the time when the privilege was really a privilege of the clergy were long maintained in the rules that the “bigamus” (i. e. the men twice married or married to a widow) and a woman, could not claim it. The first exception lasted till 1547,4 the second till 1692.5

In 14876 it was enacted that all persons, except those actually in orders, should, if convicted of a clergyable felony, be branded and disabled from claiming the privilege a second time. In 15477 a peer, even if he could not read, was given the same privilege as a person actually in orders.

(2) Changes were made in the method and consequences of successfully pleading clergy.

It had been found better for the prisoner not to plead his clergy at once, but to plead to the indictment, and take his trial, as he could then challenge the jury, and there was always a chance that he might be acquitted. If he was convicted he could then plead his clergy.8

In 15769 the necessity for proving innocence in the Ecclesiastical Court by compurgation was abolished. But the judges could imprison persons (not being peers or clerks in orders), who had taken the Benefit of Clergy, for any term not exceeding a year. In 17171 it was enacted that persons convicted of clergyable larcenies (not being peers or clerks in orders) should be transported for seven years.

(3) The number of offences not clergyable were gradually increased and, when new offences were created, they were generally stated to be without Benefit of Clergy.

We have seen that at common law, high treason, breaches of the forest laws, and misdemeanours were not clergyable. On the other hand all felonies except insidiatio viarum, and depopulatio agrorum were clergyable.2 By successive statutes the following offences were deprived of the benefit of clergy:—Petty treason, murder in churches or highways, and later all murders, certain kinds of robbery and arson (except in the case of clerks in orders), piracy, burglary and housebreaking if any one was in the house and put in fear, horsestealing, rape, abduction with intent to marry, stealing clothes off the racks, or stealing the king’s stores.3

In 18274 the Benefit of Clergy was abolished.

(b) Corrective jurisdiction.

The Ecclesiastical Courts exercised a wide and vague control over the religious beliefs and the morals of clergy and laity alike. The state regarded itself as under a duty to enforce obedience to the laws of God. The Ecclesiastical Courts were the instruments through which the state acted. The result was “a system of moral government emanating from the episcopal order, and forming that part of the pastoral care, which is fully expressed in the Consecration Service, when the bishop promises that such as be unquiet, disobedient, and criminous within his diocese, he will correct and punish, according to such authority as he has by God’s word, and as to him shall be committed by the ordinance of this realm.”5

We may divide the extensive jurisdiction thus exercised by the Ecclesiastical Courts into two heads:—(α) offences against religion, (β) offences against morals.

(α) Offences against religion.

Of such offences the most important is heresy. It was regarded as a species of high treason against the church. “A man who did not begin by admitting the king’s right to obedience and loyalty, put himself out of the pale of the law. A man who did not believe in Christ or God put himself out of the pale of human society; and a man who on important subjects thought differently from the church, was on the high road to disbelief in Christ and in God, for belief in each depended ultimately upon belief in the testimony of the church.”1 The infrequency of heresy, down to the time of Wicklif and the Lollards, makes it somewhat uncertain in what manner the Ecclesiastical Courts could deal with it. The case of the deacon, who was burnt at Oxford because he apostatized for the love of a Jewess, is the only undoubted case mentioned in the older books.2 But heresy was known on the continent, and there is no doubt that the canon law distinctly laid it down that the penalty was death by burning.3 It is to this rule of the canon law that Lyndwood refers as authority for the proposition the heretics must be burnt.4 The accounts we have of the story of the deacon and the Jewess are too obscure to make it an authority for any distinct legal proposition. But the case of Sawtre (1400) is a clear case in which the rule of the canon law was applied. He was convicted of heresy before the bishop of Norwich and recanted his heresy. He fell again into heresy, and was condemned by the archbishop and his provincial council, as a relapsed heretic. On this conviction the king issued a writ de hæretico comburendo.1

This case clearly shows that the common law recognised the rule of the canon law, and that therefore such a writ lay at common law. It was not till a fortnight after this writ was issued that the act 2 Henry IV. c. 15 was passed with a view to strengthen the hands of the law in dealing with heresy. That act provides that persons “defamed or evidently suspected” of heresy shall be detained in the bishop’s prison till they abjure. If they decline to abjure, or relapse, they are to be burnt. By a later act of 14142 all officials “having governance of people” were directed to take an oath to use their best endeavours to repress heresy. They were to assist the Ecclesiastical Courts whenever required. The justices of assize and the justices in quarter sessions were to receive indictments of heresy, and to deliver over the persons indicted to be tried by the Ecclesiastical Courts.

The act thus gave the clergy power to arrest and imprison by their own authority, and to requisition the aid of the civil power in so doing.3

Henry VIII.’s legislation necessitated some changes in the law relating to heresy. By an act of 15334 it was declared that speaking against the authority of the pope, or against spiritual laws repugnant to the laws of the realm, should not be heresy. The act of 2 Henry IV. c. 15 was repealed, and the bishops were thereby deprived of the power to arrest and imprison on suspicion. The tourn and the leet, as well as the justices of assize and the quarter sessions, were given power to receive indictments of heresy. Thus an accusation for heresy must, as a rule, begin by an indictment before some recognised temporal court. The result was a great cessation in prosecutions for heresy.5 The act of the Six Articles6 (1539) made the holding of certain opinions felony; and it was provided that commissions should issue to the bishop and other persons to inquire into these offences four times a year.

In Edward VI.’s reign all the previous legislation touching heresy was repealed. The common law was restored.1 But the common law was the law settled by Sawtre’s case.2 The result was curious. Persons might be burnt for heresy in a Protestant country under the authority of the papal canon law.

Elizabeth’s Act of Supremacy authorised the establishment of the court of High Commission for the trial of ecclesiastical offences.3 But it considerably limited their powers to declare opinions heretical.4 If, however, a man was convicted of heresy by the court he might be burnt according to the rule of the common law. Heretics were burnt in 1575 and 1612. In the latter case Coke’s opinion was against the legality of the issue of the writ de hæretico comburendo, but four judges were against him.5 In 16776 “all punishment of death in pursuance of any ecclesiastical censures” was abolished. But the act contained a proviso that nothing in it shall “take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any Ecclesiastical Courts, in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may proceed to punish the same according to his Majesty’s ecclesiastical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death.” Many of these offences can now be punished in the temporal courts: but by virtue of this saving it is probably theoretically possible that persons guilty of such offences may be excommunicated, and imprisoned for six months by an Ecclesiastical Court.

(β) Offences against morals.

The Ecclesiastical Courts exercised a wide disciplinary control over the moral life of the members of the church. The criminal precedents published by Archdeacon Hale in 1847 illustrate the nature of the jurisdiction. They consist of a collection of extracts from the Act Books of six Ecclesiastical Courts between the years 1475 and 1640. The offences dealt with are varied and numerous. They comprise, adultery, procuration, incontinency, incest, defamation, sorcery, witchcraft, behaviour in church, neglect to attend church, swearing, profaning the Sabbath, blasphemy, drunkenness, haunting taverns, heretical opinions, profaning the church, usury, ploughing up the church path.1 The methods by which the Ecclesiastical Courts proceeded were well calculated to produce evidence of the commission of such offences. They might proceed:—(1) By inquisition. In this case the judge was the accuser. He might proceed upon his own personal knowledge or on common fame. As a rule the apparitors or other officers supplied the information. They used their powers in many cases in the most corrupt manner. Chaucer probably represented the popular view when he makes the Friar say of the “sompnour”—

• “A sompnour is a renner up and doun
• With maundementz for fornicacioun,
• And is y-bete at every tounes ende.”

Or (2) they might proceed on the accusation of some individual who was said to “promote the office of judge.” Or (3) they might proceed by Denunciation. In that case the person who gave the information was not the accuser, nor subject to the conditions attaching to this position.1 This system was, as Stephen says, “in name as well as in fact an inquisition, differing from the Spanish Inquisition in the circumstances that it did not . . . employ torture, and that the bulk of the business of the courts was of a comparatively unimportant kind.”2 We can see, from the number of cases tried, that up to 1640 the system was in full vigour. In the archdeacon of London’s court, between Nov. 27, 1638, and Nov. 28, 1640, there were 30 sittings and 2500 causes entered. If each person attended on two or three court days the number of persons prosecuted would be less than this. But the records show that 1800 people were before the court in that time, “three-fourths of whom, it may be calculated, were prosecuted for tippling during Divine Service, breaking the Sabbath, and non-observance of Saints days.”3

It is not difficult to see why the Parliament in 1640 abolished the Ecclesiastical Courts. A system which enabled the officers of inferior courts to enquire into the most private affairs of life upon any information was already out of date.

The ordinary Ecclesiastical Courts and their jurisdiction were restored in 1661;4 and there is no legal reason why at the present day they should not try cases of adultery or fornication. But between the Restoration and the present day their jurisdiction has been much curtailed, and has finally altered its shape, not only because men’s ideas upon methods of moral government have changed, but also because the state has interfered to punish offences which were once left to the Ecclesiastical Courts. In 1533 unnatural offences, and in 1541 witchcraft were made felonies.1 In 1603 bigamy was made felony.2 In 1823 jurisdiction in cases of perjury was taken away from the Ecclesiastical Courts.3 In 18554 suits for defamation, and in 18605 suits against laymen for brawling in church were similarly removed. It was a principle laid down by Coke, as an established maxim in law, “that where the common or statute law giveth remedy in foro seculari (whether the matter be temporal or spiritual), the conusance of that cause belongeth to the king’s temporal courts only; unless the jurisdiction of the spiritual courts be saved, or allowed by the same statute, to proceed according to the ecclesiastical laws.”6 The result is that while the jurisdiction of the Ecclesiastical Courts over certain kinds of immorality still in theory remains, in practice these courts are only called upon to act in the case of the clergy. In this respect, as we have seen, their jurisdiction has been improved.7 They are no longer “courts of law having authority over the sins of all the subjects of the realm.” They are “courts for enforcing propriety of conduct upon the members of a particular profession.”8

The Ecclesiastical Courts at one time claimed a species of corrective jurisdiction in all cases in which there had been fidei læsio. This, if conceded, would have given them an extensive jurisdiction over contract. We have seen that in the 14th century the temporal courts stopped the exercise of this species of jurisdiction.9

(2) Matrimonial and Testamentary causes.

(a) Matrimonial.

The Ecclesiastical Courts had, certainly from the 12th century, undisputed jurisdiction in matrimonial causes. Questions as to the celebration of marriage, as to the capacity of the parties to marry, as to the legitimacy of the issue, as to the dissolution of marriage were decided by the Ecclesiastical Courts administering the canon law.1 The common form of the writ of prohibition always alleged that the matter over which jurisdiction had been assumed was neither matrimonial nor testamentary.2

The temporal courts had no doctrine of marriage. But questions as to the validity of marriage might come incidentally before them. Was a woman entitled to dower? Is the child of a marriage entitled to inherit English land? What if the parties, ignorant of any impediment, marry in good faith and have issue? What if the jurors in an assize find facts from which a marriage can be presumed? In answering some of these questions the temporal courts often laid down rules about marriage which were at variance with the rules of the canon law. The canon law laid it down clearly that mere consent—without any further ceremony, and without cohabitation—sufficed. The temporal courts laid more stress upon some ceremony, or some notorious act. The death-bed marriage was not regarded as sufficient to establish a claim to dower. A child legitimated per subsequens matrimonium could not inherit English land. If the parties were ignorant of the impediment, and later whether or not they were ignorant, the children were legitimate, if born before divorce, or, later, if their parents were not divorced. For the purposes of an assize a de facto marriage would be recognised.3 It was probably a consideration of these rules of the temporal courts, adjudicating on marriage, or rather on the reputation of marriage, for very special purposes, which led the House of Lords in 18434 to assert, in defiance of the canon law of the Middle Ages, that the presence of an ordained clergyman was necessary to constitute a valid marriage.

Over the law of divorce the Ecclesiastical Courts had complete control till 1857. This jurisdiction comprised suits for the restitution of conjugal rights, suits for nullity, either when the marriage is ab initio void, or when it is voidable, suits for a divorce a mensa et thoro by reason of adultery or cruelty. The Ecclesiastical Courts could pronounce a marriage void ab initio; and in that case the parties were said to be divorced a vinculo matrimonii. But they had no power to pronounce a divorce a vinculo if there had been a valid marriage.1

For a short time after the Reformation the Ecclesiastical Courts seemed to have considered that they had this power.2 But this opinion was overruled in 1602.3 A valid marriage was therefore indissoluble, except with the aid of the legislature. At the end of the 17th century a practice sprang up of procuring divorces by private act of Parliament.4 The bills were introduced into the House of Lords, who strictly examined the circumstances of the case. As conditions precedent it was necessary to have obtained a decree a mensa et thoro from the Ecclesiastical Court, and to have recovered damages against the adulterer in an action at common law for criminal conversation.

The anomaly of this state of the law was striking. It practically made divorce the privilege of the very rich. This was forcibly expressed by Maule, J., in his address to a prisoner who had been convicted of bigamy, after his wife had committed adultery, and deserted him. “Prisoner at the bar,” he said, “you have been convicted of the offence of bigamy, that is to say, of marrying a woman while you have a wife still alive, though it is true she has deserted you, and is still living in adultery with another man. You have, therefore, committed a crime against the laws of your country, and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the Ecclesiastical Court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the Courts of Common Law and recovered, as no doubt you would have recovered, damages against your wife’s paramour. Armed with these decrees you should have approached the legislature, and obtained an act of Parliament, which would have rendered you free, and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. It is quite true that these proceedings would have cost you many hundreds of pounds, whereas you probably have not as many pence. But the law knows no distinction between rich and poor. The sentence of the court upon you therefore is that you be imprisoned for one day, which period has already been exceeded, as you have been in custody since the commencement of the assizes.”

In 1857 all jurisdiction over divorce and over “all causes and suits and matters matrimonial” were taken from the Ecclesiastical Courts and vested in a court called the Divorce court.1 The Lord Chancellor, the chief justices, and the senior puisne judges of the Courts of Common Law, and the judge of the court of Probate were made the judges of the court. The judge of the court of Probate was made the judge ordinary of the court.2 In some cases he could sit alone, in others he must sit with one of the other judges of the court. When he sat alone there was an appeal to the full court.3 An appeal to the House of Lords from decrees of dissolution or nullity of marriage was provided in 1868.4

In this court was vested the jurisdiction and powers of the Ecclesiastical Courts, the powers of the legislature to grant an absolute divorce, the powers of the Common Law Courts to award damages in an action for criminal conversation.5 The latter action was abolished.6 In addition a wife deserted by her husband was enabled to apply to the magistrate for a protection order.7

The act has been in the opinion of the person most qualified to judge a complete success. Sir Francis Jeune writes,1 “Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through Parliament with such dexterity and determination. The leading opponent of the measure was Mr. Gladstone, backed by the zeal of the High Church party, and inspired by his own matchless subtlety and resource. But the contest proved to be unequal. After many debates, in which every line, almost every word, of the measure was hotly contested . . . it emerged substantially as it had been introduced. Not the least part of the merit and success of the act of 1857 is due to the skill which, while effecting a great social change, did so with the smallest possible amount of innovation.”

(b) Testamentary.

The ecclesiastical courts obtained jurisdiction over grants of Probate and Administration, and, to a certain degree, over the conduct of the executor and administrator. All these branches of their jurisdiction could be exercised only over personal estate; and this abandonment of jurisdiction to the Ecclesiastical Courts has tended, more than any other single cause, to accentuate the difference between real and personal property. Even when the Ecclesiastical Courts had ceased to exercise some parts of this jurisdiction, the law which they had created was exercised by their successors.

We shall consider (1) the origin and extent of the jurisdiction of the Ecclesiastical Courts, and (2) the decay of this jurisdiction.

(1) The origin and extent of the jurisdiction of the Ecclesiastical Courts.

(a) Jurisdiction over grants of Probate.

The origin of this jurisdiction is difficult to discover. Neither the civil nor the canon law sanctioned it.2 We hear nothing of it in England in the 12th century; and Selden says “I could never see an express probate in any particular case older than about Henry III.”3 Testators rather sought the protection of the king or of some powerful individual; and the effect might be somewhat similar to that of a grant of probate in later law.1

But as early as the reign of Henry II. it is probable that jurisdiction in cases of disputed wills belonged to the Ecclesiastical Courts. Glanvil says definitely that this was the law in his day;2 and amid all the disputes of Henry II.’s reign, as to the limits of the jurisdiction of the Ecclesiastical Courts, no claim to exercise this species of jurisdiction was put forward by the king’s courts.3 Once admit that the Ecclesiastical Courts have jurisdiction to decide cases of disputed wills, and a jurisdiction to grant probate will follow. At the same time old ideas die hard. Some lords of manors successfully asserted the right to have all the wills of their tenants proved in their courts. Possibly in some cases this is a survival from the days when, probate in the technical sense being unknown, the protection of a lord was sought for a will;4 though in other cases it may, as Professor Maitland suggests, have originated in later grants from the Pope.5

In a constitution of Archbishop Stratford of 1380, the jurisdiction is said to belong to the Church, “consensu regis et magnatum regis.”6 Lyndwood says “de consuetudine tamen hæc approbatio in Anglia pertinent ad judices ecclesiasticos.”7 Selden, too, considers that it rests upon immemorial custom; though he conjectures that it may have been handed over to the Church by a Parliament of John’s reign.8 We shall see that this is more probably true of the jurisdiction over grants of the administration to one who has died intestate. But the fact that about this time the Ecclesiastical Courts got jurisdiction over grants of administration, over legacies, and, in some cases, over debts due by or to a deceased testator, may have been decisive in favour of this closely allied branch of the same jurisdiction.

(b) Jurisdiction over distribution of intestates’ goods and grants of Administration.

Probably jurisdiction over the distribution of intestates’ goods belonged originally to the temporal courts.1

In Saxon times the kindred who inherit would seem to have been the persons who superintended the distribution of intestates’ goods.2 This is the arrangement which we find in Glanvil; and neither Walter de Map nor John of Salisbury mention this branch of the jurisdiction of the Ecclesiastical Courts, though they have much to say respecting them.3

A canon made at a council held at St. Paul’s before Othobon4 (1268) speaks of “a provision made as to the goods of intestates which is said to have emanated from the prelates of the realm with the consent of the king and barons.” In the opinion of Selden5 and of Professor Maitland6 this refers to § 27 of Magna Carta, which provides that the goods of an intestate shall be distributed by the hands of his near relations and friends “per visum ecclesiæ salvis unicuique debitis.”7 This was the rule known to Bracton. “Ad ecclesiam et ad amicos pertinet executio bonorum.”8 A claim to superintend the distribution made by the kinsfolk will without much difficulty become a claim to administer. And the claim was here peculiarly strong. The man who dies intestate will probably have died unconfessed.9 There could be no sure and certain hope as to the state of such a person. The Church should obviously see that the property, of which he might have disposed by will, is distributed for the good of his soul. Distribution by the kinsfolk “pro anima ejus” of Henry I.’s Charter; distribution “per visum ecclesiæ” of Magna Carta; actual administration by the Ordinary, perhaps mark the stages by which the Ecclesiastical Courts acquired jurisdiction. Up till Edward III.’s reign the court actually administered and made the distribution among those relatives of the deceased who were entitled. But its conduct was so negligent and even fraudulent that the legislature interfered.1 The court was obliged to delegate its powers to administrators, whom it was obliged to appoint from among the relatives of the deceased.2 Instead of distributing the estate the Ecclesiastical Court merely grants administration. These administrators were by the statute assimilated in all respects to executors. Like executors they are the personal representatives of the deceased.

(c) Jurisdiction over the conduct of the executor and administrator.

In the 13th century the Ecclesiastical Courts obtained jurisdiction over legacies, and in certain cases over debts due to or by a testator.

According to the civil law the bishop had a concurrent jurisdiction with the lay courts over legacies left in pios usus.3 There is a vague provision made by some council of Mentz which seems to give the bishop an indefinite right of interference.4 But in other countries this does not appear to have given to the Ecclesiastical Courts any jurisdiction beyond that over legacies left in pios usus. In Glanvil’s time legacies could be recovered in the king’s court.1 Selden gives specimens of writs of the time of Henry III. ordering executors to fulfil the wills of their testators.2 But it is possible that the royal courts assumed jurisdiction in some of these cases for special reasons. It is probable that, even in Henry II.’s reign, the Ecclesiastical Courts had a jurisdiction concurrent with that of the temporal courts. No writ of prohibition issued if a suit for legacies was begun in the Ecclesiastical Court. Selden said that he had seen none on the plea rolls of either Richard I., John, or Henry III.3 Both Bracton and Fleta state definitely that no prohibition lies in such a case.4 In 1230 it was decided that a legatee could not recover in the king’s court, but must sue in the Ecclesiastical Court.5

When the Ordinary was obliged by law to delegate its power over the goods of an intestate to an administrator, the Ecclesiastical Court naturally assumed jurisdiction over the due distribution of the estate by the administrator.

The Ecclesiastical Courts never possessed more than a limited jurisdiction over debts due to or by a testator; and that jurisdiction was effectively exercised only for a short time.6

When Glanvil wrote, the heir is the person liable to carry out the will and to pay the debts.7 In Bracton’s time the heir must pay the debts to the extent of the chattels which he has received from the deceased, and he can sue the deceased’s creditors.8 In the time both of Glanvil and Bracton the heir sues and is sued in the king’s court. In the time of Bracton, however, the executor can sue on debts acknowledged in the testator’s lifetime, because such debts are substantially the testator’s goods. He can be sued if he has been directed in the will to pay the debts, because such direction amounts to something very like a legacy.1 Britton and Fleta limit the liability of the heir to cases where he has been specially bound to pay by the deed of his ancestor, or where the debt is owed to the king.2 It is clear that the heir is ceasing to be the person primarily liable to pay the debts of the deceased.

When the executor sues, or is sued, the proceedings take place in the Ecclesiastical Courts. The Ecclesiastical Courts naturally attempted to extend their jurisdiction to cover all actions by or against executors.3 But, in the late 13th and in the 14th and 15th centuries, the king’s court refused to allow this extension. They gave rights of action to or against executors (and later), to or against administrators.4 The Ecclesiastical Courts thus lost jurisdiction over actions of this kind.

Indirectly, however, the position which the executor or administrator came to occupy in the king’s court assisted the jurisdiction of the Ecclesiastical Courts. He gradually takes the place which the heir had occupied in the 12th century.5 He becomes primarily, and, at length, with one exception,6 solely liable to the creditors of the deceased. He becomes in fact the deceased’s personal representative.

This new position taken by the executor or the administrator tended to develop the jurisdiction of the Ecclesiastical Courts over the administration of the estate. The executor or administrator was amenable to them; and he was now the personal representative. Thus we find that the Ecclesiastical Courts laid down rules intended to secure the creditors, the legatees, or those entitled on intestacy. The executor or administrator was compelled to make an inventory.7 He must account at the close of the administration;8 and in some cases he must give a bond to secure the production of the account.1 He was given remedies against those who detained the property of the deceased.2 Penalties were denounced against him if he appropriated the deceased’s property.3 Like the tutor suspectus of Roman law he could be removed by the court if good ground of suspicion were shown.4

This jurisdiction of the Ecclesiastical Courts was clearly the consequence of the jurisdiction over probate, legacies, and the administration of intestates’ effects which they had been allowed to assume in the 13th century. That they should have gained this jurisdiction about this time is not perhaps strange. As Selden points out,5 the clergy played a part—perhaps the most important part—in the events which led to the passing of Magna Carta. There were English precedents for the jurisdiction of the Ecclesiastical Courts—though not for their exclusive jurisdiction. The only serious rival to the Ecclesiastical Courts was the king’s court. The judges of that court were generally clerics. They acted, it is true, loyally as temporal judges.6 But they cannot have been altogether opposed to “arranging a concordat” with the Ecclesiastical Courts, which eventually gave to the Ecclesiastical Courts in England a jurisdiction over matters testamentary, larger than that possessed by any other Ecclesiastical Courts in Europe. For, as Lyndwood says, this jurisdiction “de consuetudine Angliæ pertinet ad judices ecclesiasticos . . . secus tamen est de jure communi.”7

(2) The decay of the jurisdiction of the Ecclesiastical Courts.

We have seen that, in the 14th century, the executor and the administrator had been granted rights of action, and had been rendered liable to be sued in the king’s court for the debts due to and by the deceased. But the remedies given by the king’s courts were by no means complete, till, at the end of the 16th and beginning of the 17th century, it was definitely decided, that executors and administrators could sue and be sued by the action of assumpsit.1 The extension of what was in its origin a quasi delictual action to the representative was no doubt caused by the fact that he would otherwise have had recourse to the court of Equity.2 This move on the part of the Common Law Courts made a recourse to the court of Equity unnecessary in this particular class of case. But, it was the extension of the equitable jurisdiction in other directions, which finally deprived the Ecclesiastical Courts of all effective jurisdiction, except that over probate and grants of administration. This extension was necessitated by the jealousy felt by the Common Law Courts for any rival jurisdiction. The jurisdiction of the Ecclesiastical Courts was crippled; and, as the court of Equity had succeeded in defeating the attempts made by the Common Law Courts to treat it,3 as they had treated the court of Admiralty,4 and the Ecclesiastical Courts, it was able to offer more complete and better remedies.

The Common Law Courts had made it almost impossible for the Ecclesiastical Courts to act at all. They would not allow the truth of the inventory to be enquired into.5 They would not allow the creditors to examine into the truth of the executor’s accounts because he had a remedy at common law.6 They issued writs of prohibition against all who sued upon the bonds taken to secure the production of a proper account.7 We are not surprised, therefore, to find that applications were made at the end of the 15th century to the Chancellor in cases which involved the taking of accounts.8 The Chancellor could also assist the plaintiff by enforcing discovery against the executor.9 The extension of the doctrine of trusts enabled the court to control the personal representative in the interest of all who claimed under a will or an intestacy, whether they were creditors or legatees.1 It was therefore in the court of Chancery, and not in the Ecclesiastical Courts, that the rules relating to the powers, rights and duties of the personal representative have grown up. The court followed the rules of the Ecclesiastical Courts and of the Common Law Courts respectively when they were applicable.2 But it was the procedure of the court of Chancery which made it possible to distinctly conceive the complicated equities which arise in the administration of an estate. It was the rules evolved by the court which provided for their adjustment.

The statute of Distributions, it is true, attempted to strengthen the jurisdiction of the Ecclesiastical Courts with a view to secure the proper distribution of the effects of an intestate. It enabled the Ecclesiastical Courts to call administrators to account, and gave the judge power to take bonds for this purpose.3 But the superior procedure of the court of Chancery prevailed.4 The Ecclesiastical Courts in practice retained jurisdiction only over grants of probate and administration. When, in 1857, their jurisdiction in matters testamentary was taken away, it was provided that the Court of Probate then established should have no jurisdiction over legacies, or over suits for the distribution of residues.5

The Act of 1857 established a court of Probate, presided over by a single judge, to whom was given the rank and precedence of the puisne judges of the superior courts.6 It was provided that he should be the same person as the judge of the court of Admiralty.7 He was given the jurisdiction to make grants of probate and administration formerly exercised by the Ecclesiastical Courts.1 An appeal from his decision lay to the House of Lords.2

(3) Jurisdiction over matters of exclusively ecclesiastical cognisance.

The Ecclesiastical Courts still have jurisdiction over many matters of exclusively ecclesiastical cognisance, such as questions of doctrine and ritual, ordination, consecration, celebration of divine service, disputed application for faculties.3 They formerly had jurisdiction over many questions concerning ecclesiastical property such as tithes, church dues, dilapidations. But recent statutes have much curtailed their jurisdiction over these matters.4 Over one species of ecclesiastical property the temporal courts have always kept a firm hand. From Henry II.’s day the advowson has been regarded as real property, and subject to the jurisdiction of the temporal courts.5 It would appear from the Constitutions of Clarendon that Henry was at that time prepared to allow the Ecclesiastical Courts jurisdiction over property held in frankalmoigne.6 But in the 13th century this jurisdiction was denied to them. All questions relating to land, other than consecrated soil, became the subjects of temporal jurisdiction, and subject to rules of temporal law.7 The barons at the council of Merton refused to change these rules as to legitimacy in order to bring them into harmony with the law of the church. Up to the 17th century a man might, if his parents had subsequently married, be legitimate for some purposes, without being capable of inheriting English land.8

The process by which the Ecclesiastical Courts enforced obedience to their decrees was excommunication. It was to the spiritual courts what outlawry was to the temporal courts. If the excommunicate did not submit within 40 days, the Ecclesiastical Court signified this to the crown, and thereon a writ de excommunicato capiendo1 issued to the sheriff. He took the offender and kept him in prison till he submitted. When he submitted the bishop signified this, and a writ de excommunicato deliberando issued.

The temporal consequences of excommunication were serious. The excommunicate cannot do any act which is required to be done by a probus et legalis homo. “He cannot serve upon juries, cannot be a witness in any court, and, which is worst of all, cannot bring an action either real or personal, to recover lands or money due to him.”2 An act of Elizabeth’s reign improved the procedure on the writ de excommunicato capiendo.3 In 1813 it ceased to exist as part of the process of the Ecclesiastical Court to enforce appearance, and as a punishment for contempt. For it was substituted the writ de contumace capiendo.4 The rules applying to the older writ were made applicable to the new. Excommunication is still a punishment for offences of ecclesiastical cognisance; and, on a definitive sentence for such an offence, the writ de excommunicato capiendo can still issue; but it is provided that a person pronounced excommunicate shall not incur any civil penalty or incapacity, except such imprisonment (not exceeding six months) as the court pronouncing the excommunication may direct.5

30.

THE HISTORY OF THE ADMIRALTY JURISDICTION1

By Thomas Lambert Mears2

THE Admiralty Court had its origin in the authority of the Admiral, of whom the judge was the deputy.

The title of admiral,3 to indicate the custos maris4 of earlier times—that is, the officer exercising the jurisdiction of the Crown in respect of the command and charge of the sea, either during a particular expedition or over a particular district—was not used in England as an official description before the year 1286,1 and the first patent of Admiral of England conferred upon a subject would appear to date from 1386.2 The command of the English seas was then divided, as had previously been the case with the custodes maris, between several admirals, with limits to the north, south or west from the mouth of the Thames;3 but owing to the necessity for the defence of the coast, especially of the county of Kent, which was particularly liable to invasion, and the importance of commanding the eastern entrance of the English Channel, special privileges, liberties and franchises were from early times bestowed on the so-called Cinque Ports, Dover, Hastings, Romney, Hythe and Sandwich, to which the two ancient towns of Winchelsea and Rye were added in the time of Richard I.4 In 1294 Gervoise Alard, of Winchelsea, was Capitaneus and Admirallus of the fleet of the Cinque Ports, and of all other ports from Dover to Cornwall.1 It is said that “the office of Admiral of the Cinque Ports is more ancient than the office of Lord High Admiral,” and that he had “all the authorities, rights, and royalties belonging to an admiral annexed to his office.”2 The Court of Admiralty of the Cinque Ports, locally situated at Dover,3 still exists, as it was not included in the sweeping changes effected by the Municipal Reform Act.

The authority of a Lord High Admiral depended upon his commission.4 He was sometimes instituted for life and sometimes during pleasure,5 and it would follow from his position in command of the fleet1 that his jurisdiction was originally of a disciplinary and administrative character, limited to the crews of the vessels under his direct orders, offenders being brought before him to “undergo and receive what the law and custom of the sea wills and requires”;2 whilst commissioners were appointed to try offences committed by others on board the ships of the fleet; but it is alleged that, before the time of Henry I.,3 in the case of indictments for felony, the admiral or his lieutenant sent a capias to the marshal of the court, or to the sheriff, to take the offender, and a procedure is indicated similar to that described by Bracton4 as applicable to cases of homicide where the accused person has taken flight. It is further stated5 that in the same reign (Henry I.) the admirals6 of the north and west were summoned to Ipswich, and ordinances were made, with the concurrence of the temporal lords, respecting the criminal jurisdiction to be exercised by the commanders of the fleets within the seas belonging to the Kings of England.1

The perquisites to which the admiral was entitled, in addition to his pay, were so numerous as to require separate investigation, and “a suit in the Admiralty was originally an inquisition of office for ascertaining and securing to the Lord High Admiral such part of his revenue as consisted of droits,”1 the suit being analogous to the inquisition of office concerning the droits of the Crown, which, being part of the King’s casual revenue, was restricted to the Court of Exchequer.2 The droits or perquisites formerly attaching to the office of Lord High Admiral, as enumerated in their later patents,3 consisted of flotsam, jetsam, ligan,4 treasure, deodands,1 derelicts found within the admiral’s jurisdiction, all goods picked up at sea, all fines, forfeitures, ransoms, recognizances and pecuniary punishments, all sturgeons, whales, porpoises, dolphins, and grampuses, and all such large fishes, all ships and goods of the enemy coming into any creek, road, or port by stress of weather, mistake, or ignorance of the war, all ships seized at sea, salvage, together with a share of prizes.2

Some writers assert that the starting point of the admiral’s jurisdiction in civil suits dates from an ordinance of Edward I., to the effect that “any contract made between merchant and merchant, or merchant or mariner beyond the sea, or within the flood mark, shall be tried before the admiral and nowhere else”;3 but half a century more was spent in efforts by reference to arbitration, and by treaty, to meet the difficulties which arose with foreign sovereigns over cases of alleged piracy and spoil, and it was not until the battle of Sluys, in 1340, gave Edward III. temporary maritime supremacy, that he was in a position to constitute an independent Court of Admiralty with power to deal with causes for which, in the case of a plaintiff foreigner, the Courts of common law afforded no redress.1

The result was that the Admiralty Court acquired jurisdiction in piracy, wreck, capture of royal fish, and obstructions to rivers; all matters previously dealt with by the chancellor, to whom petitions to the King in council were referred, and who, with a view to certifying the King thereon, would either dispose of the whole cause himself, as in the case of piracy, which was deemed specially within his purview,2 or direct an issue, for example, as to piracy or no piracy, or as to the ownership of property and ships spoiled, to the King’s Bench, or to commissioners of oyer and terminer with ordinary juries or merchants and mariners, according as the commissions directed the trial to be secundum legem et consuetudinem regni angliæ, or secundum legem mercatoriam or maritimam.

In the case of piracy, of which suits now became frequent in the Court of Admiralty, the criminal aspect was disregarded, the proceedings being for restitution,3 and no preliminary conviction was required, as was the case where the Lord High Admiral proceeded pro interesse suo, upon his royal grant of bona piratarum.1

In the bundle of documents known as the Fasciculus de superioritate maris2 is one, dated 12 Edw. III., from which it would appear that the King held a consultation with three commissioners as to what laws and ordinances should be observed by his Courts in maritime matters.

The law of the sea, to which the attention of Edward III. was now directed, consisted of those unwritten usages of seafaring men, combined with lingering memories of the so-called law of Rhodes, filtrated through the law of Rome,3 which, in the course of centuries, by the agency of the Consular Courts of the Mediterranean, had crystallised into “customs of the sea.”

The growth of this law, or usages of the ports, was favoured by its recognition from early times as distinct from the law of the land, and, on the downfall of the Western Empire, the so-called barbarians who settled in Gaul, Spain, Africa, and Italy, did not interfere with the existing Roman law, but the legislation took the peculiar turn of becoming personal instead of territorial—that is, each individual, in matters not provided for by the laws of the conquerors, was judged according to the laws and customs of the nation to which he belonged.1 In this way the municipal institutions which had been fostered by the Romans themselves preserved their vitality, and tended to strengthen the force of the local customs, so that they even overrode the law in matters in which they were deemed exclusive; but as time went on difficulty seems to have been experienced in keeping up these cherished customs by oral tradition, so that about the eleventh century a general tendency exhibited itself to reduce them to writing.1

That Courts of the sea followed a law distinct from that of the land is recognised in the Assises of Jerusalem, which date from the reign of Godfrey de Bouillon, the contemporary of Henry I. of England.2 These chapters on maritime law embody the customs of the sea of the Levant, and were drawn up for the benefit of the immigrant Frankish people who followed in the wake of the first Crusade, and established themselves in Syria at the beginning of the twelfth century. The Courts of the sea were presided over by burghers of the same nationality as the litigants. They followed a different procedure to that of the Courts of the land, and they adjudicated in civil disputes on maritime matters3 without regard to the usual mode of proof by wager of battle, which was unknown in the Levant. Where the plaintiff’s were merchants suing other merchants not possessing (like the Genoese, Venetians, or Pisans) the privilege of special Courts of the sea of their own nationality, they were required to sue in the Court of the King, that is, in the “Court of the chain,” which took cognizance of maritime matters and was in the nature of an instance Court of Admiralty with a procedure of its own.

The English municipal institution known as the borough lent its influence to the maintenance of the traditions of a general law in matters of international commerce and navigation. At Ipswich, which was an important maritime borough in the time of Edward the Confessor, a Court sat daily to administer the law merchant between strangers, and between burgesses and strangers, and from tide to tide to administer maritime law to passing mariners. The Domesday of Ipswich is the earliest extant record we posses of any borough Court, with elective officers sitting regularly and administering a customary law of the sea.1

Concurrently with this borough system, which in England transformed the personal union known as the guild into a local association, the communal system was growing up on the other side of the channel, and increased in importance in the western provinces of France after they became subject to the Kings of England. In particular King John, as Duke of Acquitaine, granted a charter to Oleron,2 confirming the liberties of that commune, and under these privileges the probi homines, who assisted the judge in questions arising out of the law of the land, were, in the case of the law of the sea, nautical men (prud’hommes) familiar with the customs of the sea. The Coutumier of the Commune of Oleron1 shows that there was a Court administering the law maritime not only in suits between foreigners and burgesses of Oleron, but in causes where both litigants were foreigners.2 The judgments of this Court were reduced to writing by the prud’hommes of the commune in the twelfth century. They are the earliest extant mediæval sea laws we possess after the ordinances of Trani;3 and it may be assumed that these judgments of the sea, or customs of Oleron, were the outcome of the privileges granted by the Dukes of Guienne to the commune of Oleron prior to the marriage of Eleanora, daughter of William, Duke of Guienne, with Henry II. of England, when the island passed into the possession of the British Crown. Amongst these privileges was that of the prud’hommes of the commune exercising jurisdiction in maritime matters, and adjudicating upon them in the Court of the mayor according to the usages of the sea and the custom of merchants and mariners.4 Some difficulty has been raised as to the time when these judgments of Oleron were introduced into England owing to the terms of the above-mentioned record, known as the Fasciculus, according to which it would seem that part of the object of the consultation which King Edward III. had with the Commissioners was the upholding of the laws and statutes, “which were by the Lord Richard, formerly King of England, on his return from the Holy Land, corrected, interpreted, and declared, and published in the island of Oleron”;5 but whether these judgments were so published as laws at that time or not, it seems clear that, prior to the consultation in question, the judgments of Oleron were in use in the City Courts which administered the law merchant and the law maritime, as two copies exist in the archives of the City of London, the writing of which is as early as the reign of Edward II.1

The judgments of Oleron are inserted in Part C. of the Black Book of the Admiralty as a code of maritime law.2 They are preceded by thirty-nine rules or orders relating to the Admiralty, some of which go back to the reign of Henry I.3 and Richard I.,4 and which were probably translated from Latin into French by the compilers of the Black Book, as French was the language of seafaring men in the time of Edward III.5 After Article 39 in Part C. follow thirty-four articles, of which twenty-four are identical with the most ancient version of the rolls or judgments of Oleron,6 whilst the ten following seem peculiar to the English Admiralty, unless these were deemed part of the laws of Oleron, as seems possible from the record of an appeal from the Mayor’s Court of Bristol1 in 24 Edward III., in which two of these articles would appear to be relied on as part of those laws. The next eighteen articles of the Black Book, lettered D., are stated in the recital in the preamble to be articles of a maritime inquest held at Queenborough in 49 Edward III. (1375) to ascertain and settle certain points of maritime law “as they have been used in ancient times”; and the jurats, in answer to the sixteenth article of inquiry in respect of the right of lodemanage (pilotage), return that “they know of no better advice or remedy, but that if it be from this time used and done in the manner which is contained in the law of Oleron.” The first twenty-four articles of the laws of Oleron as set out in the Black Book do not contain any provision for the punishment of a pilot for failure of duty; but the thirty-third and thirty-fourth articles specially provide for the payment of damages by a pilot, and for his punishment in the event of the loss of the ship through his default.2 It would, therefore, appear that these ten articles were regarded as part of the laws of Oleron in the time of Edward III.1

From the records it would seem that, at this time, the civil jurisdiction in Admiralty included torts and offences on the high seas, on British seas, and in ports within the ebb and flow of the tide, matters of prize,2 contracts within the laws of Oleron1 and causes arising on the seashore and in ports. In 1361 the Council held that, by the common law, felonies, trespasses, and injuries done on the sea should be tried by the admiral by the law maritime, and not according to the common law;2 but the extension of the admiral’s jurisdiction, founded on the theory accepted by the common lawyers at this time, that all matters arising outside the jurisdiction of the common law—that is, outside the body of a county3 —were inside the jurisdiction of the Admiralty,4 led to disputes between the Admiral’s Court and the “Courts of the Seaports” exercising a franchise jurisdiction,5 these disputes being heightened by the irregularities committed by the Court of the Earl of Huntingdon, Admiral of the West;1 and in 1389 and 1391 two statutes were passed defining and limiting in favour of the common law courts, first, the things with which the admiral might meddle, and, secondly, the places to which his jurisdiction might extend. The 13 Rich. II. st. 1, c. 5, refers to the complaints made of encroachments by the admirals and their deputies and of their holding sessions in divers places within and without franchises, impoverishing the common people. It then proceeds to enact that they “shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea.” This was followed two years later by the statute 15 Rich. II. st. 2, c. 3, by which it was declared that “the admiral’s court shall have no manner of cognizance, power, nor jurisdiction” . . . “of contracts, pleas, and quereles and all other things done or arising within the bodies of counties as well by land as by water, nor of wreck of the sea,”1 nevertheless “of the death of a man and of mayhem done in great ships being hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh to the sea (infra primos pontes), and in none other places of the same rivers, the admiral shall have cognizance, and also to arrest ships in the great flotes for the great voyages of the king.”

As it was found that these limitations were not duly observed, the Commons petitioned against the admiral,1 and a statute was passed in 1400 (2 Hen. IV. c. 11) providing a remedy for the party aggrieved by proceedings against him in the Admiralty Court, in cases not clearly within the jurisdiction of that Court, not only against the plaintiff but against the judge and the officers of the Court, by action in the common law courts with double damages; the statute further enacted that the statutes of Richard “be firmly holden and kept and put in due execution.”2

The leading idea in these statutes is the distinction between things done in the realm and on the high seas, and this distinction gave rise to the determined efforts on the part of the common law courts, persisted in through centuries, to prevent the Admiralty Court taking cognizance of contracts made in this country relating to maritime matters, and dealing with them according to the civil law so as to encroach upon the jurisdiction of the tribunals at Westminster and interfere with the institution of trial by jury. Two causes operated, the one to oppose, and the other to aid, the efforts of the Admiralty Court to retain its jurisdiction. The opposition arose from the strong dislike of the people at large to proceedings savouring of the civil law in disregard of the institution of trial by jury; the favouring cause lay in the technical process of the common law courts hampering their procedure and limiting their jurisdiction, so that in maritime cases there was a tendency to resort to the Admiralty Court to obtain a speedy and satisfactory remedy.

As a magistrate, the judicial powers of the Lord High Admiral as defined by patent3 were extravagantly large, and included the power to take cognizance of all causes, civil and maritime, within his jurisdiction; to arrest goods and persons; to preserve public streams, ports, rivers, freshwaters and creeks whatsoever within his jurisdiction, as well for the preservation of the ships as of the fishes; to reform too strait nets and unlawful endings and punish offenders; to arrest ships, mariners,1 pilots, masters, gunners, and any other persons whatsoever able and fit for the service of the ships, as often as occasion shall require and wheresoever they shall be met with; to appoint vice-admirals, judges, and other officers durante bene placito; to remove, suspend, or expel them and put others in their places as he shall see occasion; to take cognizance of civil and maritime laws and of death, murder, and mayhem.2

The patent of the Lord High Admiral also specially gave him the power to act by deputy, and according to the opening paragraph of the Black Book of the Admiralty,1 “When one is made admiral, he must first ordain and substitute for his lieutenants,2 deputies, and other officers under him, some of the most loyal, wise, and discreet persons in the maritime law and ancient customs of the seas3 which he can anywhere find, to the end that by the help of God and their good and just government the office may be executed to the honour and good of the realm”; and according to the documents connected with the Admiralty of Sir Thomas Beaufort, 13 Hen. IV.:4 “In the first place the lieutenant-general shall make oath to the high admiral to do right and due justice to all manners of parties complaining in the court of admiralty, as well to plaintiffs as to defendants, without having to do more for one party than the other, and he ought to make summary and hasty process from tide to tide, and from hour to hour, according to the law marine and ancient customs of the sea, without observing the solemnity of the law, and without mixing law civil with law maritime there where it may be equitable, knowing the right of the parties.” He is further directed to imprison or otherwise punish those putting themselves in opposition to the Admiralty, to appoint deputies, surveyors, and guardians of the office of Admiralty for all the coasts of the sea,5 and hold inquests upon the coasts of the sea touching the law marine, and if there is an Admiral of the North and another of the West, they shall each have a lieutenant-general.

In 1360 occurs the first intimation of the erection of that central maritime tribunal which Edward III. proposed to create, for when John Pavely was appointed capitaneus et ductor of the fleet with disciplinary powers, he acquired, in addition, the right of holding pleas secundum legem maritimam.1 Shortly afterwards in the same year, when Sir John Beauchamp was made Admiral of all the fleets, his patent contained a further power to appoint a deputy in causis maritimis;2 and the judge held his place by patent from the Lord High Admiral, but when there was no admiral, by direct commission from the Crown.3 The earliest extant patent appointing a judge to hear cases in the Admiralty Court, is in the time of Edward IV. (1482). He is empowered “ad cognoscendum procedendum et statuendum de et super querelis causis et negotiis omnium et singulorum de iis quæ ad curiam principalem Admirallitatis nostræ pertinent.”4

In 1509 and subsequent years, Henry VIII. made treaties with France providing for special tribunals to speedily try piracy claims, which had become very frequent. In England, the Earl of Surrey (Lord High Admiral), Cuthbert Tunstall (Master of the Rolls), and Christopher Middleton (judge of the Admiralty Court) were appointed judges. In the commission (1519) appointing them5 the procedure is directed to be, in accordance with the terms of the treaty between Henry VIII. and the French King, speedy and informal, and the same words are employed to indicate this procedure in the patents of the Lord High Admiral of this period. Similar terms are used in the so-called Valencian Regulations, in which the Consuls of the Sea were directed to decide the causes brought before them “briefly, summarily, and forthwith, without the noise or formality of a judgment, looking solely to the truth of the facts, according as has been accustomed to be done after the usage and custom of the sea”;1 and Mr. Justice Story says2 “that the Admiralty of England, and the maritime Courts of all the other powers of Europe, were formed upon one and the same common model, and that their jurisdiction included the same subjects as the Consular Courts of the Mediterranean . . . described in the Consolato del Mare,3 these consular Courts proceeding according to the forms of the civil law, and being regulated by the ancient customs of the sea.”

According to the Valencian Regulations included in the Consolato del Mare, as published in 1494, the jurisdiction of the consuls of the sea extended to “all questions concerning freight, damage to cargo laden on board ship, mariners’ wages, partnerships in shipbuilding, sales of ships, jettison, commissions entrusted to masters or to mariners, debts contracted by the master who has borrowed money for the wants or necessities of his vessel, promises made by a master to a merchant, or by a merchant to a master, goods found on the open sea or on the beach, the fitting out of ships, galleys, or other vessels, and generally all other contracts which are set forth in the customs of the sea.”1

In exercising jurisdiction “over all contracts which had to be determined according to the usage and custom of the sea,” the Court,2 under the Valencian Regulations, allowed oral proceedings up to and including judgment, and in the case of mariners’ wages and bonds they always were oral; but in the case of claims propounded in writing, a copy was transmitted by the officer of the Court to the defendant to be answered within a fixed term either by way of defence or counterclaim, unless the defendant objected to the jurisdiction, in which case, after consultation, the consuls either overruled the objection or remitted the parties to the competent judge; and if the defendant was a stranger the plaintiff could require security to meet the judgment, otherwise the defendant was liable to imprisonment, and the consuls were themselves liable to satisfy the judgment if they had failed to take security and the defendant absented himself. If the cause proceeded, the plaintiff replied or answered the counterclaim, and for the conduct of these proceedings assignations were made every three or more days as convenient. An oath that the action or defence was not based on false pretences could, if demanded, be then put to either party.1 In respect of matters denied, a first delay of ten days was allowed for proof, or four times that period if necessary, that is, four delays from ten to ten days, if an oath was taken that the fourth delay was not for the purpose of protracting the cause, and a reasonable time was granted if required for the production of witnesses who were at a distance. When these periods had elapsed, and the evidence had been published, the consuls, subject to exceptions to the character of the witnesses produced, and subject to the production of written evidence, appointed a day to give judgment, and caused the pleadings and proceedings to be read to mercantile experts, viz., the prud’hommes of the merchants, and to maritime experts, viz., the prud’hommes of the sea, and if their advice was the same they proceeded to pronounce sentence; but if, after the two sets of prud’hommes had consulted together, they did not agree, the consuls decided according to the written customs of the sea under the advice of the prud’hommes of the sea.2 There was no condemnation in the costs of the proceedings unless (after ad 1460) one of the parties had been guilty of bad faith, and the judgment was conclusive unless the party aggrieved appealed within ten days, either orally or in writing, to the judge of appeal to whom the proceedings were transmitted. After taking counsel with a different set of prud’hommes of the merchants and of the sea, the judge of appeal within thirty days gave a final judgment in writing (whether the proceedings were oral or not) and condemned the appellant in the respondent’s costs of the appeal if he confirmed the sentence of the consuls.

Interlocutory proceedings could be carried on before one consul, but a decree or order required to be given by both. After ad 1334 the consular judges acquired the power of enforcing their sentences, and the party condemned had ten days within which to pay or disclose unencumbered moveable goods, otherwise the Court took possession of moveable goods designated by the other party, whether seagoing vessels or other chattels, and sold them, the successful litigant being paid the amount due to him out of the proceeds, together with the costs of execution, on his finding sureties to return the money in case of a prior claim or better right being established; but if the successful party swore that he could not find sureties, proclamation was made that anyone having any claim to the thing sold or the proceeds, should prove his claim within thirty days, and if no claimant appeared the sureties were dispensed with. If the condemned party had no moveables, but had immoveable property, a request was made by the consuls to the competent judge to levy upon such property according to the form of the laws of the city or the custom of the place where the property was situated.

At this period the customs of the sea, as collected in the book of the Consulate of the Sea of Barcelona in 1494, together with the Gotland sea laws,1 called the maritime laws of Wisby,2 and the judgments of Oleron,3 formed a continuous chain of maritime law from the ports of the Baltic, through the North Sea, and along the coast of the Atlantic to the eastern shores of the Mediterranean, and the practice detailed above in the case of the Valencian Regulations may be assumed to indicate generally the mode in which suits in maritime matters were conducted on the continental seaboard. In England the records of the High Court of Admiralty do not begin until 1524,1 and details of the early practice are not forthcoming; but it seems probable that the Praxis Curiae Admiralitatis Angliæ of Clerke2 deals with a state of things that had been in force for a considerable period before the first edition of his work. He states that the actions instituted in the Admiralty Court were commonly between merchants of this country, or foreigners, or masters of ships and mariners, and that all the proceedings in civil and maritime causes were summary.3 The action, he says,4 commenced with the judge’s warrant obtained by the plaintiff, made out in the name of the Lord High Admiral,5 drawn up by the registrar and directed to the marshal to arrest the defendant6 and keep him in custody until he appeared on the day and place specified before the Lord High Admiral or his deputy the judge. The warrant was executed by the marshal, if the defendant resided in London or the suburbs, otherwise by an officer of the city, town, or village where he dwelt, and the defendant was released on giving security by bond for his appearance, the amount for which the sureties were liable being fixed by the sum for which the action was instituted, e. g., five pounds. The warrant was then returned to the judge indorsed with the person’s name who executed it, together with the day and place. On the day appointed the defendant, or his proctor, appeared with his sureties, but if without the sureties the defendant was imprisoned during the pending of the suit, or until he gave security, or unless his oath was accepted. A proctor was then appointed, as in ecclesiastical causes, to carry on the cause, with power to produce sureties and to obtain same from the adverse party. The proctor of the plaintiff exhibited his proxy in writing,7 and if the defendant had not appeared accused him of contumacy. The defendant was then called three times by the marshal, and on non-appearance the judge decreed the penalty of the bond and ordered the defendant into custody until he had satisfied the penalty, of which the plaintiff was allowed a reasonable sum in consideration of the suit being retarded. If the plaintiff did not appear, the defendant or his proctor applied to have the case dismissed with costs and his bond cancelled. The judge then, after the plaintiff had been called three times, either decreed accordingly, or that the plaintiff should not be heard until the costs were paid, or allowed the case to stand over to another court day, or (usually) summoned the plaintiff for a convenient day on pain of final dismissal, with costs. If both parties appeared, the defendant claimed a libel with sureties to be given by plaintiff, and the judge assigned the next court day for both parties to bring in their sureties, the defendant’s sureties being jointly and severally bound by bond to the judge or to the registrar for the appearance of the defendant as often as his presence was required until judgment, for the payment of costs, to confirm the acts of the proctor, to submit to the jurisdiction of the Court, renouncing all privileges and exemptions, and acknowledging themselves indebted to the plaintiff in the sum for which the action was brought, or such smaller sum as the judge fixed, conditioned that if the plaintiff cast the defendant, the defendant would pay the principal sum and taxed costs.1 The plaintiff was required to give sureties that he would prosecute the suit, and if cast pay the defendant’s costs, that he would ratify the acts of his proctor, and appear personally as often as required. The proctors of both parties could protest against the sureties produced by the opposite side as unknown and insufficient, and the principal party entered into a bond, usually in double the sum, in respect of all the matters for which his sureties were bound, and undertook to indemnify them. The plaintiff’s proctor gave in the libel, and asked for a decree, that is, a citation, for the defendant to answer the articles of the libel. If the defendant absconded, his sureties were called upon to produce him under the penalty of their bond, which the judge could either enforce or require further steps to be taken to give the defendant notice of the citation. Similar steps could be taken against the sureties of the plaintiff if he did not proceed. The grant of a commission to examine witnesses within or without the kingdom was applied for if necessary, and at the discretion of the judge the oath of calumny could be administered to either of the parties. The principal party and his witnesses were produced and sworn, as in ecclesiastical causes, to undergo their examination at the time appointed by the judge, under a pecuniary penalty, such as fifty shillings or five pounds, according to the gravity of the case. If a witness on being tendered his expenses refused to appear, a decree for his imprisonment until he should appear was issued, and the judge could commit the proctor, the principal party, or a witness for contempt. Matters of defence and of exception were then proceeded with, and the suppletory oath was usual in maritime causes. After sentence the proctor of the successful party applied to have the sentence put in execution and the costs taxed, but if the defendant had absconded the monition would be addressed to the bail to pay the thing adjudged and costs within a given time or to be taken into custody; or if the defendant lived beyond the sea or had no fixed domicile, so that he could not be admonished, the judge could cite the bail to show cause why the sentence should not be put in execution.

By Title 24 of Clerke’s Praxis, if the defendant could not be personally arrested in a civil cause by reason of being out of the kingdom, or because he had absconded, and he had any goods, wares, ship, or part of a ship, or vessel upon the sea, or within the flux and reflux of the sea, a warrant could be taken out to arrest such goods or such a ship belonging to the defendant debtor, in whose hands soever they were; and upon the attachment of such goods the debtor was cited specially in respect of the goods, and generally all others who had or pretended to have any right to, or interest in, the said goods, to appear on such a day to answer the plaintiff in a certain maritime and civil cause.1

The marshal or other officer of the judge, who arrested the goods, at the same time cited the defendant and all others having or pretending to have any right or interest in the goods to appear, and indorsed a return of the day and place of execution, together with a schedule of the goods arrested.

Proclamation was then made three times for the persons specially and generally cited. On their non-appearance, the judge pronounced them contumacious and declared them to have incurred the first default.

In the case of arresting goods of the debtor in the possession of others, or a debt owed by another person to the debtor, the proceedings were carried on between the plaintiff and the person in whose possession the goods were, as in an ordinary maritime cause for debt up to the fourth default, when, the plaintiff having declared upon and by what contract the debt arose, the goods arrested were by decree directed to be appraised, and the plaintiff, after giving security to answer any person or persons laying any claim to the goods so recovered within the term of the following year, was put in possession of the goods to the value of his demand, or, if not sufficient to answer the whole, as far as they would go towards it.2

To prevent the plaintiff being put in possession of the goods and to obtain their release, the defendant or a third person, to whom the goods arrested belonged, must appear and give security before the first decree in contumacy was pronounced. The goods were then returned to the defendant or the intervener, and the action proceeded as in an ordinary maritime cause for debt. If goods had been taken by enemies or pirates, and afterwards brought into this kingdom, or goods were taken possession of by another, or goods consigned from an agent abroad were detained by another, the owner could obtain a warrant to arrest the goods as his own proper goods, citing the detainers and all others pretending to any interest in them to answer in a civil and maritime cause. The warrant was then executed and returned, and after security had been given by the owner, and the goods had been appraised, they were on the fourth default adjudged to the owner as his own proper goods, and he was put in possession of them. If the goods arrested did not belong to the plaintiff, the owner could plead his possessory right and apply to have the arrest taken off. If the plaintiff justified, the question of the right of possession was tried and possession decreed by a definitive sentence to the person proving his right to the possession; but the party aggrieved or a third person intervening could, on giving security, claim in petitorio, and, proceeding as in other maritime causes, prove his interest in the goods and obtain a decree with costs, the goods in the meantime, whilst the proceedings in possessorio or in petitorio were going on, being sequestrated by the Court, and, if perishable, appraised and sold, the proceeds being handed to the successful party.

In the case of goods arrested by several persons, but not sufficient to answer their respective debts, the creditor first commencing the proceedings was preferred, and if anything remained over it went to the second.

Appeals lay from inferior judges or vice-admirals to the Lord High Admiral and his High Court of Admiralty, and an appeal lay to the King’s Majesty and the Court of Chancery1 from a definitive sentence of the judge of the Admiralty Court, or from an interlocutory decree having the force of one, the application to be made either at the time vivâ voce before the judge, or within ten days before a notary public.

The respondent was then arrested until he gave sufficient bail for his appearance, whilst the judge, the registrar and all others in general were inhibited from further proceeding with the cause. The appellant and respondent then gave bail, as in the Court below, to abide the decree of the Court, to pay costs and confirm the acts of the proctor, and the instrument of appeal was proceeded with as in ecclesiastical causes, substituting imprisonment or pecuniary punishments for sentence of excommunication. If the appeal was not prosecuted within the term allowed, or if in the Court of first instance the proceedings were not terminated within three years, the Court of Appeal or the judge discharged the respondent or the defendant from further attendance with costs.

The mode of exercising jurisdiction in the Admiralty Court was, therefore, “in the manner familiar to . . . all Courts regulated by the civil law (that is) either by an arrest of the person of the defendant if within the realm, or by the arrest of any personal property of the defendant within the realm, whether the ship in question or any other chattel,”1 that is to say, the procedure described by Clerke recognises no distinction between actions in rem and actions in personam, for where the person against whom a warrant was issued could not be found, or lived in a foreign country, and goods were seized (Roscoe’s Ad. Prac. p. 40) by the Court to answer the debt, these goods were not specific goods subject to a lien; but the seizure was made for the purpose of compelling appearance, in a way analogous to the proceedings by foreign attachment under the charters of the cities of London and Dublin. Hence if a foreigner owed money in England, and any ship of his came into a British harbour,1 or any goods of his were found in these realms, they were seizable by his creditors, the process of attachment going not only against goods in the actual possession of himself, his factors or agents, but also against those in the hands of his debtors; but the process was a proceeding in rem in the sense that if the defendant did not appear the “suit could go on without in any way touching the person,”2 and that by the operation of the judgment the defendant was deprived of his property in the chattel,3 unless he appeared, in which case the proceedings went on in the ordinary course as an action in personam.4

During the next few years of the reign of Henry VIII. the Admiralty Court acquired considerable addition to its power in civil suits, for though the trial of criminal causes was withdrawn in 1537,1 there was a stronger assertion by the admiral, in virtue of the royal prerogative, of a jurisdiction in maritime and commercial matters,2 which was expressed in plain terms in his patent, the usual limitations under the statutes of Richard II. being omitted and the clause inserted “statutis in contrarium non obstantibus.” In 1541, by statute 32 Hen. VIII. c. 14, cognizance was expressly given to the Admiralty to try summarily questions of charter-parties and affreightments arising from the negligence of mariners, including the trial of cases on contracts made abroad, bills of exchange, insurance, average, freight, non-delivery of cargo, damage to cargo, negligent navigation, and breach of warranty of seaworthiness.

In the next reign (Edward VI., 1547), the letters patent of the admiral include “any thing, matter, or cause whatsoever done or to be done as well upon the sea as upon sweet waters and rivers from the first bridges to the sea throughout our realms of England or Ireland or the dominions of the same.”

In 1570 the Admiral complained that the common law courts were encroaching, and Queen Elizabeth wrote to the Mayor and Sheriffs of London that this was “very strange” and that they were to forbear from intermeddling with causes arising out of contracts upon and beyond the seas.1 In 1575 a special commission was issued to the Admiralty empowering it to hear cases on charter-parties, bills of lading, bills of exchange, insurance, freight, bottomry, necessaries for ships and contracts binding ships, others being prohibited from taking cognizance of such pleas, and an agreement2 is alleged to have been come to between the Admiralty Court and the common law judges as to the limits of jurisdiction, according to which, after sentence pronounced by the Admiralty Court, no prohibition was to be granted at common law unless applied for within next term, and the judge of the Admiralty Court was to be allowed to appear and show cause against the prohibition, and further that the judge of the Admiralty, according to ancient order, as hath been taken by King Edward I. and his Council, and according to the letters patent of the Lord High Admiral for the time being, and allowed by other kings of the land ever since, and by custom time out of memory of man, may have and enjoy cognition of all contracts and other things, arising as well beyond as upon the sea, without let or prohibition, and the Admiralty Court was to have cognizance of breaches of charter-parties made to be performed upon and beyond the seas according to 32 Hen. VIII. c. 14, though such were made within the realm.1

In 1585, on the death of the Earl of Lincoln, the Lord High Admiral, the question arose whether the judge of the Admiralty Court could sit and decide cases during the vacancy: Queen Elizabeth was advised that he could, as the judge was appointed by letters patent from the Crown, so that he was judge of the Admiralty “be there an admiral or no admiral;” but the Queen, ex abundanti cautelâ, issued a special commission.2

In 1586 the power of the Court of the admiral was strengthened by 28 Eliz. c. 11, which enacted that all the offences therein mentioned “as thereafter should be done upon the main sea, or coasts of the sea, being no part of any county, and out of any haven or pier, shall be tried by the Lord High Admiral;” but the power exercised by the admiral was regarded by the nation as a dangerous unconstitutional usurpation, and in particular in respect of contracts the right of proceeding by process in personam was resisted, so that the jurisdiction asserted by the Admiralty over claims as to the supply of necessaries and materials to ships and over charter-parties was steadily undermined, for unless the contract was actually made or the goods actually supplied upon the high seas, a prohibition issued, as in Cradock’s Case,3 in the reign of James I., where a prohibition was granted on the ground that the suit in personam in the Admiralty by a material man in respect of necessaries supplied to a ship was in respect of a contract made at 5, Katherine’s Stairs, London, in the body of a county, though by the statute of 13 Richard II. the admiral could only meddle with things upon the sea. The rivalry, amounting to jealousy between the Common Law Courts and the Admiralty, was accentuated by the hostility of Sir Edward Coke, who evinced, with considerable show of reason, a dislike to both Chancery and Admiralty. In the controversy, though it may be open to question whether the original statutes of Richard were not directed principally to torts, they were construed literally by Coke, and in his answers to the complaints addressed to the Crown early in the reign of James I. by the Lord High Admiral, against the restraints imposed by the Common Law Courts upon his jurisdiction, Coke cites a number of authorities1 to show that charter-parties, policies of insurance and maritime contracts, though of foreign origin, were not within the Admiralty jurisdiction, and lays down a rule to determine whether or not any given contract is within the Admiralty jurisdiction, viz.: whether the Common Law Courts have exercised, and can exercise, jurisdiction over the same contract, that is to say, whether the party had a common law remedy. The civilians vainly urged, on behalf of the Admiralty, that, consistently with the statutes of Richard, its jurisdiction extended (1) over torts and injuries committed upon the high seas, in ports within the ebb and flow of the tide, and in great streams below the great bridges, that is, that the jurisdiction should depend upon locality; (2) over all maritime contracts arising at home or abroad, that is, that the jurisdiction should depend upon subject-matter; (3) over matters of prize and its incidents; but the Courts of Common Law held that the words “infra primos pontes,” in respect of the water of rivers, applied only to death or mayhem, and not to actions;2 that the words “upon the sea” referred to the water below low-water mark when the tide was out, and up to high-water mark when the tide was in (infra fluxum et refluxum maris), and divided the jurisdiction between the admiral and the common law accordingly, that is, on the sea coast, the water between high and low water mark, when the tide is in, is not in the body of a county,1 and, whilst not attempting to prohibit the Court of Admiralty with reference to wrongs committed on the high seas, they enforced by prohibition2 the construction of the statutes of Richard, so as to limit the jurisdiction of the Admiralty to contracts made upon the high seas, to be executed upon the high seas, in respect of matters in their nature maritime, and even as to prize the exclusive authority of the Admiralty was not finally admitted until the case of Lindo v. Rodney.3

Coke further attempted to destroy the Admiralty jurisdiction over contracts made beyond the seas by alleging that they were cognizable by the Court of the Lord High Constable and Earl Marshal (Court of Chivalry),1 but it would seem that the judicial functions of this Court were limited by stat. 13 Rich. II. c. 2, to contracts touching deeds of arms and war, and the Admiralty Court succeeded in maintaining its right to entertain suits to enforce the judgments of foreign Admiralty Courts, and to proceed in rem upon bottomry bonds executed in foreign parts.2

Coke retired from public life in 1629, and, though a heated contest went on with respect to prohibitions between the Admiralty Court and the common law judges, a compromise was effected in 1632 by the concurrence of the twelve judges of England to certain resolutions, which contained a very favourable interpretation of the extent of the Admiralty jurisdiction, and which, after adoption by the Privy Council, were approved by the King.3 They were to the effect that:—“(1) If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personal, done beyond the seas, or upon the sea, no prohibition to be awarded. (2) If suit be before the admiral for freight, or mariners’ wages, or for breach of charter-parties, for voyages to be made beyond the seas; though the charter-party happen to be made within the realm, so as the penalty be not demanded, a prohibition is not to be granted: but if the suit be for the penalty; or if the question be, whether the charter-party were made or not, or whether the plaintiff did release or otherwise discharge the same within the realm; this is to be tried in the King’s Courts at Westminster, and not in his Court of Admiralty. (3) If suit be in the Court of Admiralty for building, amending, saving, or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this be done within the realm.1 (4) Although of some of those causes arising upon the Thames beneath the first bridge, and divers other rivers beneath the first bridge, the King’s Courts have cognizance; yet the Admiralty has jurisdiction there, in the points specially mentioned in the statute of 15 Richard II. And also, by exposition of equity thereof, he may enquire and redress all annoyances and obstructions in these rivers, that are any impediment to navigation or passage to or from the sea; and also may try personal contracts, or injuries done there, which concern navigation upon the sea, and no prohibition is to be granted in such cases. (5) If any be imprisoned, and upon habeas corpus brought—if it be certified that any of these be the cause of his imprisonment, the party shall be remanded.”

During the Commonwealth the office of Lord High Admiral was abolished and the above resolutions disregarded; but it was subsequently found convenient to define the jurisdiction, and, accordingly, an ordinance (to continue for three years), in 1648, after referring to the public inconvenience to trade through “the uncertainty of the jurisdiction in maritime causes,” enacted “that the Court of Admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel, and furniture thereof, in all causes which concern the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea, and in all cases of bottomry, and likewise in contracts made beyond the seas concerning shipping or navigation or damages happening thereon, or arising at sea in any voyage; and likewise in all cases of charter-parties, or contracts for freight, bills of lading, mariners’ wages, or damages in goods laden on board ships, or other damages done by one ship or vessel to another, or by anchors, or want of laying of buoys, except always that the said Court of Admiralty shall not hold pleas, or admit actions upon any bills of exchange, or accounts betwixt merchant and merchant or their factors.”1

This ordinance was made perpetual in 1654, and three judges were appointed to preside over the Court;2 but it fell with the other Acts of the Commonwealth upon the restoration of Charles II.

The common law judges seem to have discovered that the Crown and the Admiralty had gained a decided advantage in the interpretation put upon the statutes of Richard II., and accordingly the above resolutions were treated as not being a correct exposition of those statutes, and also as a nullity by reason of their not being an adjudication on any particular case before the Court.3 In spite of the presentation of numerous petitions in support of the Admiralty jurisdiction and of the efforts of the judge of the Admiralty Court, Sir Leoline Jenkins,4 in the reign of Charles II., the effect of the denial of the authority of these resolutions, coupled with the refusal to allow parties to proceed in Admiralty who were summoned at common law to answer as to maritime matters, and the issue of prohibitions to the Admiralty Court against proceeding on any contract made on land to be performed at sea, or made at sea to be performed on land—that is, not wholly and exclusively done on the sea—so limited the actual jurisdiction in Admiralty at this time that Sir Matthew Hale says5 that it “is confined by the laws of this realm to things done upon the high sea only: as depredations and piracies upon the high sea, offences of masters and mariners upon the high sea; maritime contracts made and to be executed upon the high sea; matters of prize and reprisal upon the high sea; but touching contracts, or things made within the bodies of English counties, or upon the land beyond the sea,1 though the execution thereof be in some measure upon the high sea—as charter-parties, or contracts made even upon the high sea—touching things that are not in their own nature maritime, as a bond or contract for payment of money, &c., these things belong not to the admiral’s jurisdiction; and thus the common law and the statutes of 13 Rich. II. c. 5, 15 Rich. II. c. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea.” On the other hand, Chief Justice Holt speaks of the common law as “too severe against the Admiralty.”2

Another mode of ousting the Admiralty jurisdiction in contract was that of putting down by prohibition the practice of the Admiralty Court, which, in order to get cognizance of a cause, feigned that contracts really made on land were made at sea. This was in fact only imitating the fictitious venue introduced at common law to remove the technical difficulty, which embarrassed the common law Courts, arising from the necessity of laying a venue to every action. In this way a concurrent jurisdiction was obtained by the Courts of common law in all cases of marine contracts as the conusance of contracts and other things done upon the sea was “made triable at the common law, by supposing the same to have been done in Cheapside,”3 and as the locality of the matter or contract was not essential to the merits, the fiction was not traversable. Blackstone (in whose time the jurisdiction in Admiralty, besides being excluded within the body of a county, only extended to causes of action, in their nature maritime, arising on the high seas)4 observes5 that “it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the Royal Exchange, or other inland place, in order to draw the cognizance of the suit from the Court of Admiralty to those of Westminster Hall.”

In the exercise of the jurisdiction in prize causes, the great reputation of Lord Stowell,1 who was appointed judge in 1798, drew public attention to the Admiralty Court.2 Still, in respect of the instance Court, Browne, 3 writing in 1802, is driven to admit that the Admiralty jurisdiction in contract was limited to marine contracts, that is, contracts (1) made upon the sea, (2) whose consideration was maritime,4 and (3) not ratified by deed, nor under seal; and, with reference to personal contracts, he says that “at present the Admiralty acts only in rem, and no person can be subject to that jurisdiction but by his consent, expressed by his entering into a stipulation.” He then refers to Keble5 for the statement “that without a stipulation the Admiralty has no jurisdiction at all over the person”; and he quotes Godbolt6 that “the first process in the Admiralty is against the ship and goods, and the libel must not be against the person.” He adds the observation of Mr. Justice Buller—who accounts for the Admiralty being allowed to proceed on an hypothecation bond sealed abroad by the fact that the common law could give no remedy, there being no personal covenant for the payment of the money—that “in the struggles between the Court of Admiralty and the common law Courts respecting the extent of their respective jurisdictions, the common law Courts have said, that if the parties have bound themselves to answer personally, the Admiralty cannot take cognizance of the question”;1 and in a suit in the Admiralty by one part-owner to oblige another to sell a ship, Chief Justice Lee said (on an application for a prohibition), “that Court has no such power, for that would be proceeding in personam.”2 Browne supplements this by further admitting3 that “the Admiralty has in a great measure dropped its claim to taking cognizance of charter-party and freight, and suits by material men, and almost all other proceedings upon contract, except those for recovery of seamen’s wages, or enforcing bottomry bonds”; in a word, it may be said that personal contracts had ceased to be cognizable in Admiralty, and that the principle contended for by the civilians (viz., that, in contract, the jurisdiction ought not to depend upon locality, nor upon the object affected, but upon the subject-matter, that is, whether the contract, though made upon land, or affecting the person, was in its nature maritime) had essentially failed;4 and Browne sums up5 the jurisdiction in the instance Court of Admiralty at the beginning of the nineteenth century as “confined in matters of contract to suits for seamen’s wages, or those on hypothecations; in matters of tort to actions for assault, collision, and spoil; and in quasi-contracts to actions by part-owners for security, and actions of salvage”; but where the ship had been sold for other claims, and the money was in the registry, so that the master could not raise money on the bottom of the ship to satisfy demands which had been legally incurred, the practice had grown up of allowing the claims of material men and shipwrights, and even of the master himself, to be paid out of the proceeds.6

A decision, however, of the Privy Council,1 in the year 1835, declared this practice illegal, and so took away the last vestige of Admiralty jurisdiction in the case of necessaries. From that date the material man, who in early times could maintain a suit against the ship, had no longer any locus standi in the Admiralty Court. His only remedy was at common law, and there, unlike the mortgagee, whose position was that of a secured creditor, the material man could proceed only against the shipowner, not against the ship.2

These restrictions on Admiralty jurisdiction, and the inconvenience caused to litigants by the absence of any original jurisdiction over contracts under seal—so that the Court was unable to entertain questions of title or of mortgage, with the result that though the ship was under arrest or its proceeds in the registry, the rights of mortgagees were often adjudicated upon in a different cause in a different Court, together with the difficulties arising out of claims for salvage, questions of damage, demands for towage, which, if relating to matters within the body of a county were solely cognizable in the Courts of Common Law, and if proceeded with in the Admiralty Court subjected that Court to prohibition—led, in 1840,1 to the passing of the first of the Admiralty Court Acts, 3 & 4 Vict. c. 65, the object of which was to give jurisdiction in civil matters to the Admiralty in the body of a county, prevent the Court being prohibited, and by restoring the ancient jurisdiction of the Admiralty, give litigants the option of proceeding by the more summary process of that Court, instead of compelling them to resort to an action at law.

PART III.

PROCEDURE

• 31. The Older Modes of Trial.James Bradley Thayer.
• 32. The King’s Peace in the Middle Ages.Sir Frederick Pollock.
• 33. The Methods of the Royal Courts of Justice in the Fifteenth Century.Hubert Hall.
• 34. Criminal Procedure, from the Thirteenth to the Eighteenth Century.Sir James Fitzjames Stephen.
• 35. The Story of the Habeas Corpus.Edward Jenks.
• 36. The History of the Register of Original Writs.Frederic William Maitland.
• 37. An Action at Law in the Reign of Edward III.Luke Owen Pike.
• 38. The Development of Oral and Written Pleading.William Searle Holdsworth.
• 39. The Historical Development of Code Pleading in America and England.Charles McGuffey Hepburn.
• 40. A General Survey of the History of the Rules of Evidence.John Henry Wigmore.

31.

THE OLDER MODES OF TRIAL1

By James Bradley Thayer2

WHEN the Normans came into England they brought with them, not only a far more vigorous and searching kingly power than had been known there, but also a certain product of the exercise of this power by the Frankish kings and the Norman dukes; namely, the use of the inquisition in public administration, i. e., the practice of ascertaining facts by summoning together by public authority a number of people most likely and most competent, as being neighbors, to know and tell the truth, and calling for their answer under oath. This was the parent of the modern jury. In so far as the business of judicature was then carried on under royal authority, it was simply so much public administration; and the use of the inquisition came to England as an established, although undeveloped, part of the machinery for doing all sorts of public business. With the Normans came also another novelty, the judicial duel,—one of the chief methods for determining controversies in the royal courts; and it was largely the cost, danger, and unpopularity of the last of these institutions which fed the wonderful growth of the other.

The Normans brought to England much else, and found that much of what they brought was there already: for the Anglo-Saxons were their cousins of the Germanic race, and had, in a great degree, the same legal conceptions and methods, only less worked out. Looking now at these and at the Norman additions, what were the English modes of trying questions of fact when the jury came in, and how did they develop and die out? Some account of these things will serve as a background in trying to make out the jury.

I. The great fundamental thing, to be noticed first of all, out of which all else grew, was the conception of popular courts and popular justice. We must read this into all the accounts of our earliest law. In these courts it was not the presiding officers, one or more, who were the judges; it was the whole company: as if in a New England town-meeting, the lineal descendant of these old Germanic moots, the people conducted the judicature, as well as the finance and politics, of the town. These old courts were a sort of town-meeting of judges. Among the Germanic races this had always been so; nothing among them was more ancient than the idea and practice of popular justice.1 This notion among a rude people carried with it all else that we find,—the preservation of very old traditional methods, as if sacred; a rigid adherence to forms; the absence of a development of the rational modes of proof. Of the popular courts Maine says, in the admirable sixth chapter of his “Early Law and Custom,” while speaking of the Hundred Court and the Salic Law: “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.” The body of the judicial business of the popular courts, seven and eight centuries ago, lay in administering rules that a party should follow this established formula or that, and according as he bore the test should be punished or go quit. The conception of the trial was that of a proceeding between the parties, carried on publicly, under forms which the community oversaw. They listened to complaints which often must follow with the minutest detail certain forms “de verbo in verbum,”1 which must be made probable by a “fore-oath,” complaint-witnesses, the exhibition of the wound, or other visible confirmation. There were many modes of trial and some range of choice for the parties; but the proof was largely “one-sided,” so that the main question was who had the right or, rather, the privilege of going to the proof. For determining this question there were traditional usages and rules, and the decision of it was that famous Beweisurtheil,2 which disposed of cases before they were tried. Since the trial was a matter of form, and the judgment was a determination what form it should take, the judgment naturally came before the trial. It determined, not only what the trial should be, but how it should be conducted and when, and what the consequence should be of this or that result.

In these trials there are various conceptions: the notion of a magical test, like the effect of the angel’s spear upon Milton’s toad—

• “Him thus intent, Ithuriel with his spear
• Touched lightly; . . . up he starts,
• Discovered and surprised;”

that of a call for the direct intervention of the divine justice (judicium Dei, Gottesurtheil); that of a convenient form or formula, sometimes having a real and close relation to the probable truth of fact, and sometimes little or no relation to it, like a child’s rigmarole in a game—good, at all events, for reaching a practical result; that of regulating the natural resort of mankind to a fight; that of simply abiding the appeal to chance. There was also, conspicuously and necessarily, the appeal to human testimony, given under an oath, and, perhaps, under the responsibility of fighting in support of it. But what we do not yet find, or find only in its faint germs, is anything such as we know by the name of a trial, any determination by a court which weighs this testimony or other evidence in the scale of reason, and decides a litigated question as it is decided now. That thing, so obvious and so necessary, as we are apt to think it, was only worked out after centuries.1

II. Something must be said of a preliminary matter, of that institution of the complaint-witness,—called also, as some other things were called, the Secta,2 —which has been the source of much confusion. This had a function which was a natural and almost necessary feature of the formal system of proof.3 When the proof was “one-sided,” and allotted to this man or that as having merely the duty of going through a prescribed form to gain his case, it was a very vital matter to determine which party was to have it. If there was to be a trial, it might, indeed, be a privilege to go to the proof; and yet, as the form was often clogged with technical detail and had little or no rational relation to the actual truth of what was involved in the charge, it might be very dangerous and burdensome to be put to the necessity of going through with it. The forms of trial might also involve bodily danger or death. Not every complaint or affirmative defence, therefore, was allowed to put an antagonist to his proof: there must be something to support it. This notion is fixed in the text of John’s Magna Carta (art. 38), in 1215: Nullus ballivus ponat de cetero aliquem ad legem4simplici loquela sua, sine testibus fidelibus ad hoc inductis.5

This sort of “witness,” it must be noticed, might have nothing to do with the trial; he belonged to that stage of the preliminary allegations, the pleading, where belonged also profert of the deed upon which an action or a plea was grounded. But just as rules belonging to the doctrine of profert crept over in modern times, unobserved, into the region of proof, under the head of rules about the “best evidence”1 and “parol evidence,” so the complaint-witnesses were, early and often, confused with proof-witnesses—a process made easy by the ambiguity of the words “testis,” “secta,” and “witness.” The complaint-proof was thus confused with the old “one-sided” witness-proof, with the rational use of witnesses by the ecclesiastical courts, and with the proof by oath and oath-helper.

One complaint-witness seems originally to have been enough, and in the procedure leading to the duel or the grand assize one was always enough; but generally two or more were required; and as in the duel the witness might be challenged, so in other trials the defendant could stake his case on an examination of the complaint-witnesses, and if they disagreed among themselves he won. Apart from this, the complaint-witnesses need not be sworn; they might be relatives or dependents of the party for whom they appeared. As they were not necessarily examined at all, so in later times they were not even produced, and only the formula in the pleadings was kept up. In this form, as a mere expression in pleading, et inde producit sectam, the secta continued to live a very long life; so that within our own time we read as the third among Stephen’s “principal rules of pleading,” that “the declaration should, in conclusion, lay damages and allege production of suit. . . . This applies to actions of all classes. . . . Though the actual production has for many centuries fallen into disuse, the formula still remains, . . . ‘and therefore he brings his suit,’ ” etc.1 It even survived the Hilary rules of 1834.

It was the office of the secta to support the plaintiff’s case, in advance of any answer from the defendant. This support might be such as to preclude any denial, as where one was taken “with the mainour” and the mainour produced in court,2 or where the defendant’s own tally or document was produced, or, as we have noticed, where a defendant chose to stake his case on the answers of the secta. Documents, tallies, the production of the mainour, the showing of the wound in mayhem, all belong under this general conception. The history of our law from the beginning of it is strewn with cases of the profert of documents. This last relic of the principle of the Saxon fore-oath and the Norman complaint-witness was not abolished in England until 1852.1

A few cases will illustrate what has been said about these things. In 12022 in the King’s Court, an appeal was brought for assaulting the plaintiff and wounding him with a knife in the jaw and arm, “and these wounds he showed,3 and this he offers to prove . . . by his body.” In 12264 William seeks to recover of Warren twelve marks on account of a debt due from his father for cloth, et inde producit sectam que hoc testatur. Warren comes and defends, and asks that William’s secta be examined. This is done, and the secta confess that they know nothing of it, and moreover they do not agree (diversi sunt in omnibus rebus); and William has no tally or charter and exhibits nothing, and it is adjudged therefore that the defendant go quit. In 12295 Ada demands of Otho eleven pounds, which her father had lent him, and makes profert of a tally, and produces a secta which testifies that he owes the money. Otho denies it, and is adjudged to make his proof with compurgators—defendat se duodecima manu.6 A case in 1323 draws attention to the exact effect of the complaint-proof.1 A woman claimed dower, alleging that her husband had endowed her assensu patris, and put forward a deed which showed the assent. The defendant traversed; some discussion followed as to how the issue was to be tried, and as to the effect of the deed. Counsel for the defendant said, “The deed which you show effects nothing beyond entitling you to an answer.” . . . Counsel for the plaintiff: “True, but . . . he can only have such issue as the deed requires.”

With the gradual discrediting of party proof and the formal procedure, the secta steadily faded out. The “Mirror,” which appears to have been written not long before 1290,2 says: “It is an abuse that a plaint should be received and heard where there are no suitors presented to testify that the plaint is true.”3 As early as 13144 we find counsel saying that the Court of Common Bench will not allow the secta to be examined. Yet ten years later,5 a demand for examining the secta reveals the fact that the plaintiff has none; and this defeats his claim, as it had defeated a plaintiff’s claim in 1199.6 Finally, in 1343,7 in an action of debt for money due, partly under a bond and partly by “contract,” the court refused an examination of the secta. We read: “Rich: As to the obligation, we cannot deny it; as to the rest, what have you to show for the debt? Moubray: Good suit (secta). Rich: Let the suit be examined at our peril. Moubray: Is that your answer? Rich: Yes, for you furnish suit in this case of contract in lieu of proof of the action. Moubray: Suit is only tendered as matter of form in the count; wherefore we demand judgment. Sh. (J.):1 It has been heard of that suit was examined in such cases, and this opinion was afterwards disapproved (reprove). Sh. (J.):1 Yes, the same Justice who examined the suit on the issue [pur issue] saw that he erred and condemned his own opinion. Gayneford: In a plea of land the tendering of suit is only for form, but in a plea which is founded on contract that requires testimony, the suit is so examinable [tesmoinable] that, without suit, if the matter be challenged, the [other] party is not required to answer. Sh. (J.): Certainly it is not so; and therefore deliver yourselves. Rich: No money due him,” etc. The thing is evidently antiquated by this time. And yet, as we saw, it continued as a form in pleading for nearly five centuries longer.

III. The old forms of trial (omitting documents) were chiefly these: (1) Witnesses; (2) The party’s oath, with or without fellow-swearers; (3) The ordeal; (4) Battle. Of these I will speak in turn. They were companions of trial by jury when that mighty plant first struck its root into English soil, and some of them lived long beside it. But, as we shall see, while that grew and spread, all of these dwindled and died out.2

(1) Trial by Witnesses.—This appears to have been one of the oldest kinds of “one-sided” proof. There was no testing by cross-examination; the operative thing was the oath itself, and not the probative quality of what was said, or its persuasion on a judge’s mind.1 Certain transactions, like sales, had to take place before previously appointed witnesses. Those who were present at the church door when a woman was endowed, or at the execution of a charter, were produced as witnesses. In case of controversy it was their statement, sworn with all due form before the body of freemen who constituted the popular court, that ended the question.2 In order to show the purely formal character of this sort of proof in the period of the Frankish kings, even where counter-witnesses were allowed, Brunner refers to a capitulary of Louis le Débonnaire, of the year 819, quoted below in a note. It will be observed that while he who suspects that witnesses produced against him are false may bring forward counter-witnesses, yet if the two sets differ hopelessly, the only solution of the difficulty that offers is to have witnesses from each side fight it out together.3

An English illustration of the old trial by witnesses, of the date of 1220-1, and bearing marks of antiquity then, is found in the Liber Albus,1 where, before Hubert de Burgh and his associate justices, the citizens of London answer as to the way in which certain rents may be recovered in London, viz., by writ of “Gavelet,” in which, if the tenants deny the servitium, the claimant shall name sectam suam, scilicet duos testes, who are to be enrolled, and produced at the next hustings. “And if on this day he produce the witnesses and it is shown by them ut de visu suo et auditu, . . . the complainant shall recover his land in demesne.” This is also incorporated in the “Statute of ‘Gavelet’ ” usually referred to as 10 Edward II. (1316).2

But even earlier than this, here, as also in Normandy,3 the old mere party proof by witnesses had, in the main, gone by. Things indicate the breaking up and confusing of older forms; anomalies and mixed methods present themselves. The separate notions of the complaint secta, the fellow-swearers, the business witnesses, the community witnesses, and the jurors of the inquisition and the assize run together. It is very interesting to find that, as the Norman law contemporaneous with our earliest judicial records shows the same breaking up and confusion as regards this sort of trial which we remark in England, so it is the same classes of cases in both countries that preserve the plainest traces of it. “In my opinion,” says Brunner,4 “undoubtedly we are to include under the head of the formal witness-proof these: (1) The proof of age; (2) The proof of death; . . . (3) The proof of property in a movable chattel.”

(a) Age.—In a case of 1219, in the Common Bench,1 where the defendant alleged the minority of the plaintiff, the plaintiff replied that he was of full age, and thereof he put himself on the inspection of the judges, and if they should doubt about it he would prove it either by his mother and his relatives, or otherwise, as the court should adjudge. The judges were in doubt, and ordered that he prove his age by twelve legal men, and that he come with his proof “on the morrow of souls.”2 Now these twelve are not at all a “jury,” for the party selects them himself. At the page of Bracton’s treatise where he cites this case, he tells us that in these cases the proof “is by twelve legal men, or more if there be need, some of whom are of the family . . . and some of whom are not;” and he gives the form of oath, which is a very different one from that of the jury. First, one of them swears that the party is or is not twenty-one if a man, or fourteen or fifteen if a woman—sic me Deus adjuvet et sancta Dei evangelia; and then in turn each of the others swears that the oath thus taken is true.

In a peculiarly interesting part of his great work on the jury, Brunner points out that the old witness-proof was in some cases transformed at the hands of the royal power into an inquisition, so that the witnesses were selected by the public authority, as they were in the ordinary jury.3 We seem to see this way of blending things in the English process de aetate probanda. In 13974 we read, after the statement that the king’s tenants, on coming of age, in order to recover their lands must sue out a writ of aetate probanda, that those who serve on the inquest must be at least forty-two years old, “and shall tell signs to prove the time of the birth, as that the same year there was a great thunder, tempest, or pestilence, and the like; and all these signs shall be returned by the sheriff.” And the reporter puts it as a query whether, since this is proof by witnesses (per proves), there may be less than twelve. The requiring of the age of forty-two points to the idea that they must have been of an age to be a witness when the child was born. By 15151 this doubt seems to have been settled: “It was agreed that the trial of his age shall be by twelve jurors; but in giving their verdict every juror should show the reason inducing his knowledge of the age, such as being son gossipe, or that he had a son or daughter of the same age, or by reason of an earthquake or a battle near the time of the birth, and the like.” Quaint illustrations of these examinations, of the year 1409, are found in the Liber de Antiquis Legibus.2 In one of these cases, relating to a woman’s age, each of the twelve makes his statement separately, and each is asked how he knows it. One, sixty years old, says that he fixes the age by the fact that he saw the child baptized; they had a new font, and she was the first person baptized from it. Another, a tailor of the same age, says that he held a candle in the church on the day of baptism, and also made the clothes which the mother wore at her purification. Two others, over fifty, fix the day by a great rain and flood which made the river overflow, and filled the hay with sand. Two others recollect that their hay from six acres of meadow was carried away by the flood. Two others remember it by a fire that burned a neighbor’s house. Another by the fact that he was the steward of the child’s grandfather, and was ordered by him to give the nurse who told him the news twenty shillings; and so on. Similar details may be found in a record of 12973 and in manorial documents of 1348.4 It is easy, then, to see how in this sort of case the old proof by witnesses should gradually fade out into trial by jury; for the old jury was nothing but a set of triers made up of community witnesses selected by the king’s authority. The old mode of trying age by the inspection of the judges, which we saw in 1219, was practised long; but the general rule became established in all such cases that the judges, if in doubt, might refer the matter to a jury.1

(b) Ownership of Chattels.—There were other sorts of transformation. We have seen2 how the old law could admit counter-witnesses without destroying the formal nature of the proof. With the refinement of procedure, affirmative defences came to be more distinctly recognized; each party had to produce a complaint secta. There grew up the practice (whether by consent of parties or otherwise) of disposing of the case by examining these, and deciding it according as one secta was larger than the other, or composed of more worthy persons; and, if it was impossible to settle it on such grounds, of going to the jury. The secta in such cases turned into proof-witnesses. It was chiefly such a class of cases, presently to be mentioned, that brought down into our own century the name of “trial by witnesses,” and the fact of a common-law mode of trial which had not sunk into the general gulf of trial by jury.

In 1234-53 there came up to the king’s court a record of proceedings in the hundred court of a manor of the Bishop of Salisbury. A mare had been picked up in the manor, and one William claimed her in the hundred court and took her, on producing a sufficient secta and giving pledges to produce the mare and abide the court’s order for a year and a day, according to the custom of the manor. One Wakelin de Stoke then appeared as claimant, and the steward required each to come on a day with his secta. They came, et Wakelinus producit sectam quod sua est, et similiter Wilhelmus venit cum secta sua, dicens quod sua fuit et ei pullanata (i. e., foaled). The hundred court, finding itself puzzled and not knowing cui incumbebat probacio, postponed judgment pro afforciamento habendo (i. e., semble, in order that the parties might increase their sectas). Then Wakelin appeared with a writ removing the case to the king’s court at Westminster. At Westminster William produced his secta, and they differed in multis, et in tempore et in aliis circumstanciis, some of them saying that William bought the mother of the mare four years ago, and she was then pregnant with her and had a small white star on her forehead; and some that it was six years ago and she had no star; and some agreeing in the time but differing about the mark,—some of them saying she had no star, but only some white hairs on her forehead, and some that she had no star at all. Wakelin produced a secta that wholly agreed, all saying that on such a day, four years back, Wakelin came and bought a sorrel (soram) mare with a sucking colt, and gave the colt to one John to keep. They were questioned about marks, and entirely agreed in saying that the colt had the left ear slit and part of the tail cut off, and that she was black. A view was taken of the colt, and she was not more than four years old at most, or three years and a half at least. Then an official of the manor, Thomas de Perham, said that Wakelin, before he saw the mare in question, told her color and all the marks by which she could be identified, and that William, when he was questioned, did not know her age, and said nothing distinct, except that she was foaled to him. The case, however, went down again for judgment, because the Bishop of Salisbury claimed his jurisdiction; et quia secta quam Wilhelmus producit non est sufficiens nec aliquid probat et quia loquela incepta fuit infra libertatem episcopi . . . concessa est ei et teneat unicuique justiciam.1

(c) Death.—But the typical sort of case, and the longest-lived, is what Selden instances2 when he says: “But some trials by our law have also witnesses without a jury; as of the life and death of the husband in dower and in cui in vita.” This continued in England until the end of the year 1834. A case or two will illustrate this proceeding.

In 13081 Alice brought a cui in vita, and Thibaud, the tenant, answered that the husband was living. The woman offered proof that he was dead, hanged at Stamford; the tenant the same, that he was alive, issint que celui que mend provereit mend avereit. “Alice came and proved her husband’s death by four juretz, who agreed in everything; and because Thibaud’s proof was mellour et greyneure than the woman’s proof, it was adjudged that she take nothing by her writ.” In Fitzherbert,2 what seems to be the same case is briefly referred to, and there we read that they were at issue, issint cesti que mieulx prove mieulx av.; and the tenant proves by sixteen men, etc., and the demandant by twelve; and because the tenant’s proof “fuit greindr than the demandant’s, it was awarded,” etc. If we take Fitzherbert’s account to be accurate, it might appear that the twelve men on each side cancelled each other, and left a total of four to the credit of the tenant, a result which made his proof the better.3 This old catch of qui mieulx prove mieulx av., a pretty certain badge of antiquity, appears again sixty years later. A woman brought an appeal for her husband’s death. The defendant said he was alive. The parties were directed to bring their witnesses, et celui qui meuch prova meuch av.4 In 1560, in the interesting case of Thorne v. Rolff,5 we have an instance where, in dower, issue was taken on the death or life, and the parties were called on to inform the court “per proves, [i. e., witnesses] ut oportet.” The demandant brought two, “who were sworn and examined by Leonarde, second prothonotary.” These statements are entered in full on the record, which is all given in Benloe’s report. The two statements occupy about a page of the folio. Then it is recorded that the tenant produced no witnesses, and the court admits what is offered, as bonam, probabilem et veram probationem, and gives judgment for the demandant. Dyer connects this with the old law by citing Bracton, 302, where he speaks of deciding in such cases according to the probatio magis valida. The number, rank, and position of the witnesses are what Bracton alludes to.1 But it is probable that by the time of Thorne v. Rolff the rational method of conducting the “trial by witnesses” had taken place; for Coke, half a century later,2 in enumerating “divers manners of trials,” designates this as “trial by the justices upon proofs made before them;” and so Comyns, a hundred years afterwards.3 Blackstone, however, later in the last century,4 and Stephen,5 pour back again this new wine into the old bottles and call this wholly modern thing by the old name of “trial by witnesses.” Blackstone’s explanation of it shows little knowledge of its history. At last this venerable and transformed relic of the Middle Ages was abolished in England, when real actions came to an end by the statute of 1833.

(2) Trial by Oath.—As the Anglo-Saxons required from a plaintiff the taking of a fore-oath, so the defendant was allowed sometimes to clear himself merely by his own oath; the case was “tried” by that alone. But the great mediæval form of trial by oath was where the party swore with oath helpers—compurgation. In the Salic Law, that “manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organized Teutonic courts, the court of the hundred,”6 in the fifth century, we find it.7 It continued among the Germanic people in full force. These fellow-swearers were not witnesses; they swore merely to the truthfulness of another person’s oath, or, as it was refined afterwards, to their belief of its truth. It was not requisite that they should have their own knowledge of the facts. Although constantly called by the ambiguous name testis, they were not witnesses. They might be, and perhaps originally should be, the kinsmen of the party.1

In our own early books this was a great and famous “trial,” and its long survival has made it much more familiar to the modern English student than some of its mediæval companions. It was the chief trial in the popular courts, and as regards personal actions, in the king’s courts, where, in real actions also, it was resorted to in incidental questions.2 In the towns it was a great favorite. An early and quaint illustrations of it is found in the Custumal of Ipswich, drawn up about the year 1201 by way of preserving the old usages of the town, and again compiled a hundred years later because of the loss of the older copy.3 In debt between citizens of the town, the party who had to prove his case was to bring in ten men; five were set on one side and five on the other, and a knife was tossed up in the space between them. The five towards whom the handle lay were then set aside; from the other five one was removed, and the remaining four took the oath as compurgators.

In criminal cases in the king’s courts, of the graver sort at any rate, compurgation is thought to have disappeared in consequence of what has been called “the implied prohibition” of the Assize of Clarendon, in 1166.4 But it remained long in the local and in the ecclesiastical courts.1 Palgrave2 preserves as the latest instances of compurgation in criminal cases that can be traced, some cases of 1440-1, in the Hundred Court of Winchelsea in Sussex. They are cases of felony, and the compurgation is with thirty-six neighbors. They show a mingling of the old and the new procedure. On April 4, 1435, Agnes Archer was indicted by twelve men, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. Agnes adducta fuit in pleno hundredo . . . modo felonico, nuda capite et pedibus, discincta, et manibus deligatis; tendens manum suam dexteram altam, per communen clericum arreinata fuit in his verbis (and then follows in English a colloquy): “Agnes Archer, is that thy name? which answered, yes. . . . Thou are endyted that thou . . . felonly morderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed. . . . I am not guilty of thoo dedys, ne noon of hem, God help me so. . . . How wylte thou acquite the? . . . By God and by my neighbours of this town.” And she was to acquit herself by thirty-six compurgators to come from the vill of Winchelsea, chosen by herself.3

The privilege of defending one’s self in this way in pleas of the crown was jealously valued by the towns; it was easier and safer than the jury. London had it in its charters. In the few Anglo-Saxons words of the first short charter granted by the Conqueror and still “preserved with great care in an oaken box amongst the archives of the city,”4 there is nothing specific upon this. But in the charter of Henry I., s. 6, the right of a citizen is secured in pleas of the crown, to purge himself by the usual oath; and this is repeated over and over again in charters of succeeding kings.1 Henry III, in his ninth charter, cut down the right, by disallowing a former privilege of the accused to supply the place of a deceased compurgator by swearing upon his grave.2 There was the “Great Law,” in which the accused swore with thirty-six freemen (six times, each time with six), chosen, half from the freemen of the east side of the rivulet of Walbrook, and half from the west; they were not to be chosen by the accused himself, nor to be his kinsmen or bound to him by the tie of marriage or any other. The accused might object to them for reasonable cause; they were chosen and struck, much after the way of a modern special jury. The “Middle Law” and “Third Law” were like this, but had eighteen and six compurgators respectively.3 In civil cases of debt and trespass, compurgation with six others was the rule in London; or, if the defendant was not a resident, with only two others. If he had not two, then the foreigner was to be taken by a sergeant of the court to the six churches nearest, and to swear in each.4

In the king’s courts, the earliest judicial records have many cases of this mode of trial; e. g. in 1202, in the Bedfordshire eyre, where, in an action for selling beer in the borough of Bedford by a false measure, the defendant was ordered to defend herself “twelve-handed;” and she gave pledges to make her “law” (vadiavit legem.)5 In 1382,6 among the measures of relief from litigation following acts done in the recent insurrections, people charged with trespasses are allowed purgare se by three or four fellow-swearers. In Wales the assache was in existence in 1413, requiring the oath of three hundred persons, and it was found necessary in St. 1 Henry V. c. 6, to relieve those who had been loyal in a late rebellion from the hardships of so formidable a “trial.”

From being a favored mode of trial, this “law,” or, as it is commonly called, “wager of law,” from its preliminary stage of giving pledges to perform it, steadily tended to become a thing exceptional; not going beyond the line of the precedents,1 and within that line being a mere privilege, an optional trial alongside of the growing and now usual trial by jury. In the newer forms of action it was not allowed, and finally it survived mainly in detinue and debt.2 Yet within a narrow range it held a firm place.3 In 1440,4 in debt for board, Yelverton, for plaintiff, tried to maintain that the defendant could not have his law of a thing “which lies in the conusance of the pais.” But the court held otherwise and the defendant had his law. In 1454-5,5 there was a great debate among the judges over a demurrer to a plea of non-summons in a real action, with “ready to aver per pais.” It was insisted by Prisot (C. J.) that this lay in the knowledge of the pais, and that all such things should in reason be triable by the jury. He admitted, however, that the practice had been otherwise. His associates, Danvers and Danby, agreed with him; while Moile and Ayshton pressed strongly the more conservative doctrine. “This will be a strong thing,” said Moile; “it has not been done before.” “Since waging law,” said Ayshton, “has always been practised, and no other way, this proves, in a way, that it is un positive ley. All our law is directed (guide) by usage or statute; it has been used that no one wages his law in trespass, and the contrary in debt; so that we should adjudge according to the use,” etc. No decision in the case is reported. But Brooke, in his Abridgment, in the next century, gives the latter view as optima opinio.1

In 1492,2 Sebastian Giglis “merchaunt of Venyce,” complains to the Chancellor against Robert Welby, as having exposed him to the repayment of money advanced to Robert by a third party at the plaintiff’s request, by waging his law “as an untrue Cristenman,” when sued for it by this third party, who has now come upon the plaintiff and demands it of him. Robert had signed a “bill” for it, but nothing under seal. Robert’s answer admitted receiving the money, but set forth that he was acting as an agent of King Richard III. and “wrote a bill of receipt . . . to the intent that the said bill . . . might have been a remembrance to the said late King for repayment of the said sum.” After a hearing the Chancellor decreed that inasmuch as the defendant admitted receiving the money and showed no payment or exoneration, or any reasonable ground for being exonerated, he should pay the money to the plaintiff. The effect of this case seems to be overstated by Spence,3 in saying that the merchant was relieved “from the consequences of the defendant having waged his law. . . . This interference of the Court of Chancery no doubt had its effect in causing this ancient mode of proof . . . to go into disuse.” The case is, indeed, very significant, but it will be remarked that the court by no means directly relieved the party himself, who had lost by a good and established form of trial. It relieved Sebastian, and not the plaintiff in the other litigation.

A century later, in 1587,4 when compurgation had become less usual, and, in the eyes of the Chancellor, almost archaic, we read that the Star Chamber refused to deal with one who was alleged to have sworn falsely in making his law; “the reason was because it was as strong as a trial. And the Lord Chancellor demanded of the judges if he were discharged of the debt by waging of his law; and they answered ‘yea.’ But Manwood (C. B.) said that it was the folly of the plaintiff, because that he may change his action into an action of the case upon an assumpsit, wherein the defendant cannot wage his law.” In his report of Slade’s Case (1602) Coke remarks1 that courts will not admit a man to wage his law without good admonition and due examination.

After another century this procedure still keeps its place, but it is strange, and the profession has lost the clue. In 1699, in the Company of Glaziers Case,2 in debt on a by-law, the defendant had his law. When he came with his compurgators, the plaintiff’s counsel urged that the court need not receive him to his oath if he were swearing falsely or rashly; “sed, per Holt, C. J., ‘We can admonish him, but if he will stand by his law, we cannot hinder it, seeing it is a method the law allows.’ ” The reporter takes the pains to describe the details of the proceedings, as if they were unfamiliar;3 and at the end of it all he adds: “Per Northey (plaintiff’s counsel), this will be a reason for extending indebitatus assumpsits further than before. Holt, C. J. We will carry them no further.” In the next case,4 where, in a similar matter, two or three years later, the court refused wager of law in debt on a by-law, Holt, C. J., said that the plaintiff’s counsel yielded too much in the Glaziers Case: “It was a gudgeon swallowed, and so it passed without observation.” In 1701-2 came a great case,1 where, in debt on a city bylaw, for a penalty for refusing to serve as sheriff, the defendant offered to make his law with six freemen of the city, according to the custom of London. The plaintiff demurred. Much that was futile was said of wager of law. We are told by Baron Hatsell2 that it lies only “in respect of the weakness and inconsiderableness of the plaintiff’s . . . cause of demand . . . in five cases: first, in debt on simple contract, which is the common case; secondly, in debt upon an award upon a parol submission; thirdly, in an account against a receiver; . . . fourthly, in detinue; . . . fifthly, in an amerciament in a court baron or other inferior courts not of record.” Holt rationalized the matter in a different way:3 “This is the right difference, and not that which is made in the actions, viz., that it lies in one sort of action and not in another; but the true difference is when it is grounded on the defendant’s wrong; . . . for if debt be brought and . . . the foundation of the action is the wrong of the defendant, wager of law will not lie.” And again,4 “The secrecy of the contract which raises the debt is the reason of the wager of law; but if the debt arise from a contract that is notorious, there shall be no wager of law.”

In the latter half of the eighteenth century it was nearly gone. Blackstone tells us: “One shall hardly hear at present of an action of debt brought upon a simple contract,” but of assumpsit for damages, where there could be no wager of law; and so of trover instead of detinue. “In the room of actions of account a bill in equity is usually filed. . . . So that wager of law is quite out of use; . . . but still it is not out of force. And therefore when a new statute inflicts a penalty and gives . . . debt for recovering it, it is usual to add ‘in which no wager of law shall be allowed:’ otherwise an hardy delinquent might escape any penalty of the law by swearing that he had never incurred or else had discharged it.”1

The validity of this ancient trial was, indeed, recognized by the Court of Common Pleas in 1805,2 but in 1824, when for the last time it makes its appearance in our reports,3 it is a discredited stranger, ill understood: “Debt on simple contract. Defendant pleaded nil debet per legem. . . . Langslow applied to the court to assign the number of compurgators. . . . The books [he says] leave it doubtful. . . . This species of defence is not often heard of now. . . . Abbott, C. J. The court will not give the defendant any assistance in this matter. He must bring such number of compurgators as he shall be advised are sufficient. . . . Rule refused. The defendant [say the reporters] prepared to bring eleven compurgators, but the plaintiff abandoned the action.” It had turned out, then, to be not yet quite a ghost; and so in 18334 it was at last enacted by Parliament “that no wager of law shall be hereafter allowed.” Palgrave5 had lately pointed out with accuracy the old and the later legal situation: “An inquest or jury, in civil causes, was never adopted according to the usual course of the popular courts of Anglo-Saxon origin, unless by virtue of the king’s special precept.” In an action begun there by the writ which empowered the sheriff to act as the king’s justiciar, an inquest might be summoned; “but if the suit was grounded upon a plaint the opinion of the suitors or the compurgatory oath constituted the common-law trial. . . . The same rule was observed in the manorial courts, in which by common right all pleas were determined by wager of law. . . . Even in the king’s court the incidental traverses in a real action, such as the denial of the summons by the tenant, were always determined by compurgators; and in all personal actions wager of law was the regular mode of trial, until new proceedings were instituted which enabled the judges to introduce the jury trial in its stead. But this silent legislation has not destroyed the Anglo-Saxon trial [his preface is dated Feb. 1, 1832]; it is out of use, but not out of force; and it may, perhaps, continue as a part of the theory of the law until some adventurous individual shall again astonish the court by obtaining his privilege, and by thus informing the legislature of its existence, insure its abolition.”

(3) The Ordeal.—Of trial by the ordeal (other than the duel) not much need be said. Nothing is older; and to this day it flourishes in various parts of the world. The investigations of scholars discover it everywhere among barbarous people, and the conclusion seems just that it is indigenous with the human creature in the earliest stages of his development.1 Like the rest, our ancestors had it. Glanvill,1 for instance (about 1187), lays it down that an accused person who is disabled by mayhem tenetur se purgare . . . per Dei judicium . . . scilicet per callidum ferrum si fuerit homo liber, per aquam si fuerit rusticus.2 This was found to be a convenient last resort, not only when the accused was old or disabled from fighting in the duel, but when compurgators or witnesses could not be found or were contradictory, or where for any reason no decision could otherwise be reached.

In our earliest judicial records the ordeal is found often. The earliest of these cases which is assignable to any precise year is one of 10 Rich. I. (1198-9),1 where, on an appeal of death, by a maimed person, two of the defendants are adjudged to purge themselves by the hot iron. But within twenty years or so this mode of trial came to a sudden end in England, through the powerful agency of the Church,—an event which was the more remarkable because Henry II., in the Assize of Clarendon (1166) and again in that of Northampton (1176), providing a public mode of accusation in the case of the larger crimes, had fixed the ordeal as the mode of trial. The old form of trial by oath was no longer recognized in such cases in the king’s courts. It was the stranger, therefore, that such quick operation should have been allowed in England to the decree, in November, 1215, of the Fourth Lateran Council at Rome. That this was recognized and accepted in about three years (1218-19) by the English crown is shown by the well-known writs of Henry III. to the judges, dealing with the puzzling question of what to do for a mode of trial, cum prohibitum sit per Ecclesiam Romanam judicium ignis et aquae.2 I find no case of trial by ordeal in our printed records later than Trinity Term of the 15 John (1214). We read then of several cases.1 One Ralph, accused of larceny, is adjudged to purge himself by water; he did clear himself, and abjured the realm. And so in another exactly like case of murder. It was the hard order of the Assize of Clarendon that he who had come safely through the ordeal might thus be required to abjure the realm, a circumstance which recalls the shrewd scepticism of William Rufus when he remarked of the judicium Dei that God should no longer decide in these matters,—he would do it himself.2 In a third case a person was charged with supplying the knife with which a homicide was committed, and was adjudged to purge himself by water of consenting to the act. He failed, and was hanged.

In England, then, this mode of trial lived about a century and a half after the Conquest, going out after Glanvill wrote, and before Bracton. The latter is silent about it.

The “Mirror,” written, as Maitland conjectures, between 1285 and 1290, regrets that it has gone by. “It is an abuse,” says the writer, “that proofs and purgations are not made by the miracle of God where no other proof can be had.”1 In 1679 a defendant astonished the court by asking to be tried by the ordeal.2

The conception which was at the bottom of the ordeal and compurgation is often misunderstood. Thus Palgrave3 says that under the arrangements of the Assize of Clarendon “the ordeal was, in fact, only a mode of giving to the culprit a last chance of escaping the punishment of the law.” And so Stubbs:4 “The ordeal, in these circumstances being a resource following the verdict of a jury acquainted with the fact, could only be applied to those who were to all intents and purposes proved to be guilty.” No, the ordeal was simply a mode of trial; or, as they phrased it in those days, of clearing one’s self of a charge. And so, while it gave way, after the Lateran Council decree, to trial by jury, the old accusing jury persisted and still persists.

Modern civilization occasionally feels nowadays the want of some substitute for these old tests, in cases where there is very strong ground of suspicion, but full legal proof is wanting. Compare the convenient ecclesiastical compurgation, e. g. in the sentence of the Archbishop of Canterbury, in 1631, in Hooke’s case.5 After deciding against Hooke on some points he adds: “For his simony I vehemently suspect him, and therefore [he is] to purge himself 7^amanu.”

(4) Trial by Battle.—This is often classified as an ordeal, “a God’s judgment,” but in dealing with our law it is convenient to discriminate it from the ordeals, for the battle has other aspects than that of an appeal to Heaven. Moreover, it survived for centuries the ordeal proper. It had, also, no such universal vogue. Although it existed among almost all the Germanic people, the Anglo-Saxons seem not to have had it;6 but with the Normans it came into England in full strength. In Glanvill, a century after the Conquest, we see it as one of the chief modes of trial in the king’s courts: “A debt . . . is proved by the court’s general mode of proof, viz., by writing or by duel.”1 “They may come to the duel or other such usual proof as is ordinarily received in the courts,” etc.2 Of the inferior courts, also, we are told that in a lord’s court a duel may be reached between lord and man, if any of the man’s peers makes himself a witness and so champion.3 He, also, who gave the judgment of an inferior court might, on a charge of false judgment, have to defend the award in the king’s court by the duel, either in person or by a champion.4 And so elsewhere.

There is sufficient evidence that it was, at first, a novel and hated thing in England. In the so-called “Laws of William the Conqueror,” it figures as being the Frenchman’s mode of trial, and not the Englishman’s. In a generation after the Conquest, the charter of Henry I. to the city of London grants exemption from it; and the same exemption was widely sought and given, e. g., in Winchester and Lincoln.5 The earliest reference to the battle, I believe, in any account of a trial in England, is at the end of the case of Bishop Wulfstan v. Abbot Walter, in 1077.6 The controversy was settled, and we read: “Thereof there are lawful witnesses . . . who saw and heard this, ready to prove it by oath and battle.” This is an allusion to a common practice in the Middle Ages, that of challenging another’s witness;7 or perhaps to one method of disposing of cases where adversary witnesses were allowed, and these contradicted each other. Brunner8 refers to this, with Norman instances of the dates 1035, 1053, and 1080, as illustrating a procedure which dated back to the capitulary of 819, quoted above.9 Thus, as among nations still, so then in the popular courts and between contending private parties, the battle was often the ultima ratio, in cases where their rude and unrational methods of trial yielded no results.

In a great degree it was for the purpose of displacing this dangerous, costly, and discredited mode of proof that the recognitions—that is to say, juries in their first organized form—were introduced. These were regarded as a special boon to the poor man, who was oppressed in many ways by the duel.1 It was by enactment of Henry II. that this reform was brought about, first in his Norman dominions (in 1150-52), before reaching the English throne, and afterwards in England, sometime after he became king, in 1154. Brunner (to whom we are indebted for the clear proof of this) remarks upon a certain peculiar facility with which the jury made head in England, owing, among other reasons, to the facts (1) that the duel was a hated and burdensome Norman importation, and (2) that among the Anglo-Saxons, owing to the absence of the duel, the ordeal had an uncommonly wide extension, so that when, a generation later than the date of Glanvill’s treatise, the ordeal was abolished, there was left an unusually wide gap to be filled by this new, welcome, and swiftly developing mode of trial.2 The manner in which Glanvill speaks of the great assize is very remarkable. In the midst of the dry details of his treatise we come suddenly upon a passage full of sentiment, which testifies to the powerful contemporaneous impression made by the first introduction of the organized jury into England.3

Selden has remarked upon the small number of battles recorded as actually fought.1 The society which bears his honored name is now bringing to light cases of which he probably never heard.2 Such traces of the duel and the ordeal in England as are found before Glanvill’s time are collected in Bigelow’s valuable Placita Anglo Normannica. Very early cases from Domesday Book, compiled by William within twenty years of the Conquest, are found here.3 Selden refers to a civil case in Mich. 6 Rich. I. (1194), as “the oldest case I have read of.”4 This may be the case in Vol. I. of the Rotuli Curiae Regis, 23-24, 26, which appears to be the earliest one reported in the judicial records. Although the demandant here hoc offert probare versus eum per Radulphum filium Stephani, qui hoc offert probare ut de visu patris sui per corpus suum sicut curia consideraverit, and the defendant came and defended the right and inheriting of (the plaintiff), et visum patris Radulphi filii Stephani, per Johannem . . . qui hoc offert defendere per corpus suum consideracione curiae,—yet the case appears to have gone off without the battle, on another point. But this record shows the theory of the thing. The plaintiff offers battle and puts forward a champion who is a complaint-witness, and who speaks as of his personal knowledge or, as in this case, on that of his father,5 and stands ready to fight for his testimony. Before the battle the two champions swear to the truth of what they say.

In the mother-country, Normandy, one might hire his champion; but in England, theoretically, it was not allowed. In 1220 one Elias Piggun was convicted of being a hired champion, and lost his foot—consideratum est quod amittat pedem.1 What was thus forbidden seems, however, to have been much practised, and finally, in 1275, the struggle to prevent it came to an end by abandoning any requirement that the champion be a witness. The St. West. I., c. 41, reads: “Since it seldom happens that the demandant’s champion is not forsworn in making oath that he or his father saw the seisin of his lord or ancestor and his father commanded him to deraign, it is provided that the demandant’s champion be not bound to swear this; but be the oath kept in all other points.”

The Year Books indicate small use of the trial by battle in later days. One sign is the particularity with which the ceremonial is described, as if it were a curiosity. Thus in 1342-3, and again in 1407,2 in criminal appeals, the formalities of the battle oath and subsequent matters are fully given. And in 14223 the ceremony in a battle between champions is described with curious details, down to the defaulting of the tenant on the appointed day. In 1565 Sir Thomas Smith4 tells us, of this mode of trial, that it was not much used, but “I could not learn that it was ever abrogated.” This was only six years before the famous writ of right, in Lowe v. Paramour,5 which furbished up this faded learning. Dyer has a pretty full and good account of that case; but Spelman’s Latin6 is fuller and very quaint. The trial in a writ of right, he tells us, repeating with precision the doctrine of four centuries and a half before, is by duel or the assize; utrunque genus hodie insuetum est sed duelli magis.1 Yet, he goes on, it chanced that this last was revived in 1571, and battle was ordered, non sine magna jurisconsultorum perturbatione. Then comes a curious detailed account, setting forth, among other things, how Nailer, the demandant’s champion, in his battle array, to the sound of fifes and trumpets, on the morning of the day fixed for the battle, Londinum minaciter spatiatur. It has been said that Spelman was present at Tothill Fields on that day with the thousands of spectators that assembled; he does not say so, I believe, but he writes with all the vivacity of an eye-witness. The demandant made default. Another like case occurred as late as 1638, but again there was no fight.2 Efforts to abolish the judicial battle were made through that century and the next, but without result. At last came the famous appeal of murder in 1819,3 in which the learning of the subject was fully discussed by the King’s Bench, and battle was adjudged to be still “the constitutional mode of trial” in this sort of case. As in an Irish case in 1815,4 so here, to the amazement of mankind, the defendant escaped by means of this rusty weapon. And now, at last, in June, 1819, came the abolition of a long-lived relic of barbarism, which had survived in England when all the rest of Christendom had abandoned it.5

As to the grand assize, also,—that venerable early form of the jury which Henry II. established, with its cumbrous pomp of choosing for jurymen knights “girt with swords,”1 —it is convenient to notice, at this point, that it went out at the end of 1834, with the abolition of real actions.2

We have now traced the decay of these great mediæval modes of trial in England. What, meantime, had been happening to the jury?

32.

THE KING’S PEACE IN THE MIDDLE AGES1

By Sir Frederick Pollock, Bart.2

(S. C.—Stubbs, Select Charters, 8th ed. 1895)

ALL existing civilized communities appear to have gone through a stage in which it was impossible to say where private vengeance for injuries ended and public retribution for offences began, or rather the two notions were hardly distinguished. First, revenge approved as no more than adequate, or disapproved as excessive, by rough public opinion, and, even when deemed legitimate, constantly leading to reprisals and fresh feuds; next, revenge limited by customary rules and tempered by the alternative of accepting compensation of a fitting amount; then a rule compelling the injured party, or his kindred if he was slain, to be content with compensation on the proper scale if duly tendered and secured; then the addition of punishment, or substitution of punishment for compensation, turning the avenger into a prosecutor who must hand over the business of execution to public authority; finally the staying of the private avenger’s hand, and the repression of crime by direct application of the power at the disposal of the State: all this may be seen, or more or less distinctly traced, in the history of criminal jurisdiction and law in many lands, and is abundantly exemplified in our own.

We find it already established in the eleventh century3 that the king reserves a certain number of the greater crimes for his own jurisdiction. In the twelfth century the list is considerably increased, and may be said to include all serious offences against the person other than open manslaying, and also highway robbery, besides breaches of the king’s special protection, false moneying, and other contempts of his authority.1 The omission of homicide in general, so strange to modern ways of thinking, is accounted for by the fact that the rights of the kinsfolk were still supposed to be exercisible. Secret killing,2 especially by poison or supposed witchcraft, for to this the name of murder seems at first to have been attached, could easily be reserved for the king’s peculiar jurisdiction because the ancient process of an actual or commuted blood-feud, assuming as it did that the facts were notorious or at least easily verifiable, had no adequate means of dealing with such cases. But there can be little doubt that the anomaly of leaving open homicide to the kindred and the popular courts was already obsolete in practice by the time when the list in question was set down by an antiquary who perhaps would not have approved the innovation. Murder, indeed, had acquired the curious transitional meaning of a homicide committed by an unknown person for which the hundred had to pay a fine because the slain man was presumed to be a Frenchman, or more frequently, by a compendious technical usage, the fine itself.3

These claims on behalf of the Crown were quite consistent with the lords of private jurisdictions having power of criminal justice extending in many cases even to life and death. Indeed their exercise of such powers could be justified only by the highest theory of the king’s power. It was because the king had them himself, to begin with, that he could grant them over to any great lord whom he chose to favour. On the whole the practical result was that the pursuit of serious crime was taken away from the old local courts and came under the control of the king’s judges and officers.

The precise manner in which this was brought about is under the cloud which envelopes most of the details both of Anglo-Saxon institutions and of their transition to Anglo-Norman forms. But it is certain that early in the twelfth century the compiler of the so-called laws of Henry I. represented the old system of blood-feud, tempered by acceptance of wergild and a very moderate amount of royal interference, as still in force; while in the last quarter of the same century, at latest, we find that the greater crimes have acquired the Norman name of felony; the prosecution of them is conducted, under the name of “appeal,” by the persons who under the older law might have taken up the feud, but the procedure is under the king’s authority as soon as started, and cannot be dropped without leave; the mode of trial, where the fact is denied, is by the Anglo-Norman judicial combat (or, from the early part of the thirteenth century onwards, by the verdict of a jury at the option of the accused); and the conclusion, if the accused be proved a felon by failing in the battle or by verdict, is the sentence and execution of public justice. One grim piece of archaism remained far into the middle ages to mark the original place of tribal or family revenge. “By the ancient law,” said Tirwhit, one of Henry IV.’s judges, in 1409, “when one is hanged on an appeal of a man’s death, the dead man’s wife and all his kin shall drag the felon to execution.” “That has been so in our own time,” added Chief Justice Gascoigne.1

As to the name of the proceeding, “appeal” originally meant accusation. In its application to disputing the judgment of a court, it meant not seeking the judgment of a higher court, as it has come to do in modern times, but charging the judges personally with giving a wilfully false judgment, or the witnesses with perjury. The charge might in either case have to be made good by combat, and down to the end of the twelfth century this was a possible course in all inferior courts.2 Solemn acts of authority must stand, right or wrong; a judgment once made in due form is as the law of the Medes and Persians, which altereth not. You may have, at most, a personal remedy against individuals who have abused their office. A power vested in one court to reverse or vary the judgment of another was not within the conception of early English or Frankish law. Such a notion is of slow and comparatively modern growth in England. The modern usage of the word “appeal” as implying this notion seems to be not older than near the end of the thirteenth century, and to occur first, as might be expected, with reference to ecclesiastical procedure.1

To return to what concerns us at present, it was well understood in the thirteenth century that the criminal “appeal” was no longer a mere act of private vengeance. The king had to be satisfied for the breach of his peace as well as the aggrieved party for the injury. Hence, as Bracton expressly tells us, the death or default of the appellor did not make an end of the proceedings. On the contrary, the effect was to send the accused to be tried by a jury without the option of battle. The king takes up the charge on behalf of his own peace, as he well may and ought, for the words of the appeal are that the act complained of was done “wickedly and in felony against the peace of our lord the king.” And the accused may not offer to defend himself by his body, “since the king fights not, nor has none other champion than the country.” Thus it only remained for the accused to put himself on a jury, no other mode of proof being possible.2 But in this matter, as we shall presently see, Bracton and his masters were too enlightened for their age; and their sensible practice had to give way to an almost incredible combination of pedantry and barbarism.

Meanwhile the old public justice, applicable to cases where there could be no question of blood-feud—practically, that is, to theft—was becoming the king’s justice too. The men of the hundred who charged a suspected offender on the strength of their own knowledge, or of common fame, now acted under the direction of the king’s officers; and the withdrawal of religious sanction from the ordeal by the Church in 1215 brought the further proceedings under the same authority by the downright need of some new regulation. The action of the Lateran Council was promptly enough1 acknowledged by the king’s calling for appropriate measures. It seems likely that the ordeal was already discredited. In the twelfth century clerical narrators not only exalted the merits of the saints by whose intercession men were miraculously healed after having failed in the ordeal and suffered as felons, but almost went out of their way to assert the victim’s innocence, though the miracle might well enough have been represented as the reward of an offender’s subsequent contrition. The so-called judgment of God was now regarded as a possibly oppressive or fraudulent judgment2 which might call for supernatural redress. On the other hand the temporal power was not disposed to regard acquittal on a trial by ordeal as conclusive in the prisoner’s favour. A man of bad repute who had been sent “to the water” on a charge of murder or other grave crime by the witness of the county was not treated as innocent by the later twelfth-century practice. Under Henry II.’s ordinance, he had to leave the kingdom and be content not to forfeit his goods.3 A mode of trial so little respected had become untenable. When ordeal was put out of the way, to all seeming unregretted by any one, there was no method of final proof to set in its place other than the new and royal method of inquest. If the accusing body had been turned into the final judges of the fact, some sort of inquisitorial procedure would probably have been the result, and the Grand Jury might have become an official staff with a Public Prosecutor at its head. But the law maintained the old view that the indictment, as from this point we may begin to call it, was only the voice of common fame, which was enough to put a man in jeopardy but not to condemn him. The prisoner was entitled to call for a final vote of the lawful neighbours, to “put himself on the country.” The same men might now be asked for their definite opinion, but they were reinforced by jurors of another hundred and of four townships. If the combined jurors declared that they positively thought the prisoner guilty, he stood condemned. Only in the middle of the fourteenth century were members of the jury of indictment prohibited from serving on the jury of trial.1

It will be observed that the new process is brought into play, in point of form, by the prisoner’s action. He is not sent to a jury as he would have been sent to the ordeal; he puts himself upon its verdict. Before long the question arose what was to be done with a prisoner who would not put himself on the verdict of a jury in the case of either an appeal or an indictment; this is not a question directly before us now, but it was inevitable and gave much trouble. When the “judgment of God” by ordeal ceased to be available it seemed, on the whole, to the medieval English mind that the prisoner—except where the facts were too manifest to need further proof—could not be required, as matter of strict right, to submit himself to any form of human judgment. Bracton, as we saw, was bold on the side of common sense in the case of an appeal; as to an indictment he only says it seems the prisoner can be compelled to defend himself by the country for want of other manner of proof. Some bold and enlightened judges, probably Bracton among them, were prepared to dispense with consent or enter a fictitious consent to be tried by a jury on the prisoner’s behalf.2 But the formalist view prevailed: namely that trial by the country could not be without the prisoner’s submission, but refusal to submit was an independent offence, in the nature of contempt of the king’s authority, for which the recusant might be punished in any manner short of death: imprisonment, rigorous imprisonment under conditions barely compatible with living, or, as the practice appears to have been settled in the course of the fourteenth century, with aggravations amounting to death in fact though not in terms. In this way respect for the letter of the subject’s rights and dread of usurping jurisdiction led the judges to the clumsy and barbarous expedient of the peine forte et dure, which, to the law’s disgrace, remained possible, and was sometimes put in force, down to quite modern times.1 But, strange as were the limitations imposed by the logic of thirteenth-century lawyers on the king’s jurisdiction, the jurisdiction had in substance come to the king’s hands. What remained in Bracton’s time of the old system of private and vindictive prosecutions became absorbed in one or another of the new varieties of civil procedure devised by the clerks in the king’s chancery and sometimes by the judges themselves.

We have mentioned the exceptional case—perhaps not so very exceptional in days when open violence was frequent—of a crime being too manifest for any formal proof to be required. A few words of explanation must now be added. For more than a century after the Conquest, and much later in some local jurisdictions, the stern rule of the popular courts against open and notorious crime held its ground. A criminal taken red-handed was not entitled to any further defence or trial before the king’s justices, whether he were a murderer with his bloody weapon or a robber with the stolen goods, “seised,” as men then said, “of the murder or theft,” so that the fact was undeniable before the lawful men who apprehended him. This was deliberately confirmed as late as 1176:2 and the jurisdiction, as long as it existed, remained with the county court save in the case of crimes specially reserved for the Crown. In the Gloucestershire records of 1221 we read that certain evil-doers slew a servant of the Bishop of Bath in his master’s house. Four men charged with the killing were taken with stolen goods, the murder having, it seems, been incidental to theft or housebreaking. Records show this as a very common state of things: and, as there was nothing more to be lost by adding murder to robbery, already a capital offence, we need not be surprised. The men admitted the death, and were summarily hanged, not for the murder, which was not within the county court’s jurisdiction, but for the manifest theft, which was.1 The same rule was applied by the king’s judges to manslaying, down to the middle of the thirteenth century.2 It was not necessary that the judgment should be rendered immediately, but only that the damning circumstances of the offender’s arrest “super factum” should be promptly recorded by good witness. The written records of such cases are of a simplicity befitting the summary character of the proceeding: “Wakelin Ralph’s son slew Matilda Day with a knife, and was taken thereupon with the knife all bloody, and this is witnessed by the township and twelve jurors, and so he cannot deny it; let him be hanged; he had no chattels.”

An important exercise of the king’s increasing control over criminal business was the constitution or definition (it is not certain which, nor very material) of the office of coroner in 1194.3 The most important function of the coroner was from the first the holding of inquests on the bodies of persons who had died by violence or accident, or in circumstances giving rise to suspicion; and that function continues to this day as part of the machinery of our criminal law, side by side with the jurisdiction of justices of the peace and to some extent overlapped by it, but not superseded. In the Middle Ages the coroners also exercised judicial powers in criminal and sometimes in civil business, which did disappear, partly under the express prohibition of Magna Carta, whereby neither the coroners nor the county court were to hold pleas of the Crown,1 partly by disuse as the office of a justice of the peace was brought into working order. They supervised the execution of capital justice in the privileged jurisdictions of lords who had that franchise, and thus had more extensive rights than the sheriff, who, by the terms of such local privileges, was excluded from interference within their bounds. Being the king’s officers, but elected by the men of the county, the coroners formed a direct link between the Crown and the people and a check on the intermediate lords.2

With a year of the creation or better settlement, whichever it was, of the office of coroner, we hear of knights being assigned in each county to take an oath of all men over fifteen years of age for the maintenance of the king’s peace and the effectual pursuit of evil-doers.3 The relation of these keepers of the peace to the sheriff and the coroners (if indeed they were always different persons from the coroners) is not very clear. However, they were the predecessors of the conservators of the peace first appointed under authority of Parliament in 1327, and known as justices of peace (we now say “of the peace,” but the shorter form was the common one down to the eighteenth century) from the time, about a generation later, when distinctly judicial functions were conferred on them by further legislation. The office of justice of the peace is the most ancient of which it can be said that its powers and duties are wholly derived from statutes.

For more than two centuries after the Conquest the king’s peace itself was liable to interruption by the death of the reigning king. It perished with him; the new king was not deemed to be fully king, nor so styled, until he had been crowned; and during this interregnum there was no power available to preserve order but the resources of the old popular jurisdiction, doubtless more and more enfeebled by the diminution of their importance in normal times. Evil-doers were not slow to seize such an opportunity when it came. We read in the English Chronicle, under the date of 1135, that on the death of Henry I. “there was tribulation soon in the land, for every man that could forthwith robbed another.” But when Edward I. succeeded to the throne in November, 1272, being then far away from England on the crusade, the danger and inconvenience of allowing such an interregnum were perceived to be intolerable; and the king’s council forthwith caused his peace to be proclaimed throughout the kingdom, declaring the reason in his name in these words: “for rendering justice and keeping of the peace we are now and henceforth”—not merely after coronation—“debtors to all and sundry folk of this realm.”1 It must have seemed a bold measure at the time, but its wisdom was so manifest that it was not merely accepted as a temporary and extraordinary remedy, but became a conclusive precedent for all future demises of the Crown. The doctrine of the king’s peace being put in suspense by the king’s death does not seem to have been ever heard of again.

One reason for the ease with which the reform was made may perhaps have been that its omission would have thrown the machinery of justice out of gear more extensively and conspicuously than at any previous time. The writ of trespass was fast coming into use in the course of Henry III.’s reign. During the twenty-two years between the middle of the century and his death it became common.2 We think of an action of trespass nowadays as a purely civil remedy, a means of recovering damages if the plaintiff succeeds; and that was no doubt its main object and advantage even from the first. But it was also a penal and semi-criminal proceeding, and preserved traces of this character down to modern times. The trespass was complained of and dealt with as a punishable breach of the king’s peace, and the plaintiff was bound to allege force and arms and breach of the peace in order to give the king’s court jurisdiction; without those words it was only a matter for the county court. In fact this action was, in its original form, closely connected with the distinctly criminal procedure by way of “appeal” for felony. One might almost regard it, using the analogy of modern French procedure, as the civil side of such an appeal, which became separated by some ingenious experiment or happy accident, and started on a new career of its own. To regard the king’s peace as capable of temporary suspension in 1272 would have been to deprive suitors of a remedy which was already becoming popular, and showing the first promise of its vast future developments. It belongs to another context and a later period to see how forms of action derived from the semi-criminal writ of trespass became the most ordinary and efficient instruments of purely civil justice in dealing with questions of property and contract.

It will be observed that there was no centralized authority, as indeed there still is none, for dealing with the prevention or detection of crime. Royal justice aimed not at superseding local administration, but at controlling and stimulating it. The work of the king’s officers in every department of public law, and of the local officers and courts who were bound to assist them, was kept up to a generally uniform standard by the periodical journeys of the king’s itinerant judges. The more general and searching visitations have to be distinguished from the minor judicial delegations. There were frequent missions of learned persons charged only to dispose of certain kinds of pending causes and matters, usually the “assizes” introduced in Henry II.’s time, and developed in the course of the thirteenth century, for the recovery of land from wrongful possessors. Judges might even be sent out to take only one particular named case, under a special commission as we should now call it.1 Their authority depended on the terms of the commission in each case, as the authority of justices of assize does to this day; the difference is that the commissions of justices of assize (who superseded the justices in eyre at a later time, and must not be confounded with them) have run in a fixed form for centuries, whereas the heads or articles of the eyre were subject to variation. Some sort of routine, however, was acknowledged early in the thirteenth century. More especially, there was a general and comprehensive mission with unlimited jurisdiction and a wide administrative authority to see that the Crown got its dues of every kind, which took place at intervals of some years in every part of the country. This may conveniently be called a general eyre; it involved a rigid scrutiny of the criminal records of the county since the last visitation, and commonly produced a good many fines. These, and the burden of entertaining the justices and their retinue, caused the advent of a general eyre to be anything but welcome. Attempts were made to establish a custom not to have it in the same place more than once in seven years.1 On these occasions the county court was summoned, but acted in the subordinate capacity of giving information and deputing its chief men to talk over business with the judges, and, we may well suppose, to be instructed by them in the latest royal improvements of procedure and finance.2 The men of the county were answerable for having all the Crown’s business properly brought before the itinerant justices; and that business would include everything, from forfeitures of felons’ goods to complaints of sales by unauthorized measure or petty extortions by bailiffs. Directly or indirectly, there was always an eye to the king’s dues. As Mr. Maitland says, “a distinction between the doing of penal justice and the collection of the king’s income is only gradually emerging. The itinerant judge of the twelfth century has much of the commissioner of taxes.”3 Failure to find criminals, what with murder-fines and amercements for failing to produce one’s townsmen, was more fruitful of revenue than judicial sentences. Unpleasant as the whole process was for the country-side, for it was a costly forced purchase of justice at best, there must have been a great deal of civic education in it.

So far we have only hinted at the transformation of the jury in criminal cases from a special commission of inquiry into a regular and necessary tribunal, and from a piece of superior administrative machinery into a popular and representative institution. Many details are still obscure, but we know that the process was substantially completed about the middle of the thirteenth century. What interests us just here is to observe that nothing but the king’s power, half consciously guided by the necessities of the time, could have accomplished this. There were no means available for reforming the hopelessly antiquated procedure of the old popular courts, and indeed there was still, in the modern sense, no legislature at all. Executive and judicial authorities, under the king’s direction, had to innovate for themselves in the lines of least resistance. As early as 1166,1 the old accusation by the common report of the country-side became a “presentment” by definite persons representing the local knowledge of all classes, who were bound to inform the king’s judges or the sheriff. In our time the Grand Jury no longer consists of twelve of the more lawful men of the hundred and four of the more lawful men of every township; but it still exists, it is still called a Grand Inquest as its most official and solemn name; the foreman is sworn “as foreman of this Grand Inquest for our Sovereign Lady the Queen and the body of this county.” The form of the oath still binds the grand jurors to present any crimes undiscovered by the officers of the law which may come to their notice otherwise than by being expressly given them in charge; that is, to accuse any one whom they suspect of having committed a crime even if no one has taken steps to prosecute him; and though there is no occasion to do this in modern times, grand juries not unfrequently make presentments of what they conceive to be the opinion of the county as to the increase or decrease of criminal offences, or desirable amendments of the criminal law in substance or administration. It is to be remarked that the form of the oath is not of Anglo-Saxon or popular, but of Frankish and official origin.1 There was nothing about the procedure in any way repugnant to popular tradition or habits; nevertheless it was new, royal, and in ultimate parentage exotic. Not the pretence of an impossible freedom from foreign elements, but the power of assimilating exotic material to serve its own purposes and to be leavened with its own constant spirit, was already, as it has ever since been, the real glory of our Common Law. Sometimes it is asked, what is the use of a grand jury nowadays? The question ought, perhaps, rather to be whether the saving of a little trouble and expense would be an adequate compensation for abolishing a dignified and at worst harmless function which has been part of the machinery of justice in England for more than eight centuries. However, the grand jury is sometimes able to stop an obviously malicious or frivolous prosecution and spare an innocent person the pain and scandal of going into the dock.

The petty jury acquired its modern position, that of a body of judges appointed to decide on the facts according to the evidence and not otherwise, only by a gradual process. As regards the criminal jury we still know little of the details. In the fifteenth century the functions of jurymen were coming near their present character; in the sixteenth we have a description of the course of a trial which, but for the prisoner not being allowed to employ counsel against the Crown, would be accurate in all essentials at this day. Sir Thomas Smith,2 writing chiefly for the information of learned foreigners, insists on the public and oral character of the procedure, a matter of commonplace to Englishmen but strange to men living under systems derived from the later Roman law. “All the rest” (except the written indictment) “is done openly in the presence of the judges, the justices” [of the peace], “the inquest, the prisoner, and so many as will or can come so near as to hear it, and all depositions and witnesses given aloud, that all men may hear from the mouth of the depositors and witnesses what is said.” As has already been hinted, there was nothing about the origin or the early forms of the jury, or in particular of the criminal jury, to make it in any sense a popular institution. There was no manifest reason why it should not become a mere instrument of official power, as indeed the Tudor sovereigns and their ministers tried to make it in affairs of state. There was no obvious probability that the verdicts of juries would be just, or independent, or free from corruption. Indeed they were far from satisfying all these conditions in the disorderly times of the later Middle Ages. No one could even have assigned any definite reason, down to the fourteenth century, why a jury should not hold a private inquiry out of Court; and while the procedure was unsettled, there were one or two practices tending that way which might conceivably have become the model instead of first being exceptional and then disappearing. But the national instinct for publicity prevailed. The most Norman and the most royal element in the machinery of justice became a security against royal encroachment, a bulwark of freedom so beloved of Englishmen that pious fable ascribed its introduction to the hero-king Alfred.

33.

THE METHODS OF THE ROYAL COURTS OF JUSTICE IN THE FIFTEENTH CENTURY1

By Hubert Hall2

WESTMINSTER.—THE KING’S COUNCIL

THE following morning Richard de Anesti was awakened at an early hour by his brother, with a message from the Treasurer that he should lose no time in presenting himself in the Hall of Rufus, on account of the great concourse of barons and knights and clerks, learned in the civil law, who should be attracted by the grandeur and novelty of this ceremony. Without any delay, therefore, Richard donned the richly jewelled dress which it befitted one of his rank to assume on such an occasion, and taking advantage of his present familiarity with the clerks of the King’s Chapel, he enjoyed the privilege of hearing early mass, attended by the King and his household; after which he followed in the royal train that filed through the private entrance at the south end of the Great Hall. The lower part of the spacious building was already densely crowded with a brilliant company, but the upper end was kept clear by the marshals for the accommodation of the councillors and the distinguished suitors whose cause they were about to decide. Here the King took his seat on a lofty decorated throne prepared for the occasion, having on either side a bench richly draped, on which, and on two other benches at right angles to them, the prelates, earls, and barons who had received summonses to attend the Council, were placed in due order of precedence,—the Archbishop of Canterbury, the Justiciar, Richard de Luci, the Vice-chancellor, Master Thomas Brown, Ralph the physician, and several other distinguished persons, occupying seats on either side of the throne; whilst several clerks, furnished with material for writing, occupied a place where they could be easily overlooked by the Vice-chancellor and Master Thomas.

Meantime the less dignified clergy, deans and archdeacons and canons, had ranged themselves on the right side of the hall, and the great body of the king’s tenants-in-chief and other lay personages similarly on the left; those in front seated on low benches, and those behind standing, in order to obtain a better view of the proceedings.

Richard de Anesti himself had taken a position with several officers of the Receipt immediately behind his patron, the Treasurer, who sat near the end of the bench on the right of the throne. Presently a flourish of music announced the approach of the exalted suitors, who entered the Hall by the great door at the north end in three separate divisions.

First came the referees, chosen by both parties indifferently, whose mission it was to guarantee the adherence of the two kings to the present arbitration on pain of forfeiture of several important castles on either side, while it was their further duty to convey an impartial and authoritative report of the decision of the English king to the two contending sovereigns. These referees were four in number—a bishop and a lord, with whom were joined two principals of the Orders of the Knights of the Temple and of St. John. These legates, in their robes of office, preceded by heralds and banners of both countries, and followed by a body of clerks bearing membranes of parchment and ink-horns, advanced slowly up the centre of the hall, and after making a deep obeisance to the King, took the places reserved for them on his right hand. They were immediately succeeded by the embassy of Castille, comprising a bishop and several nobles of high rank, with numerous clerks learned in the law, the rear being brought up by a mounted knight in complete armour, preceded by a herald and attended by two squires on foot, who appeared as the champion of Castille. The embassy of Navarre followed in like order at a convenient distance.

Then the advocates of both parties having taken their places immediately in front of the throne on either side, the King opened the proceedings by referring to the previous Council at Windsor, at which the conditions of the arbitration and the formal statements of claim had been concluded, and the final hearing of the matter had been adjourned to the present meeting. Wherefore, he concluded, it was open to both parties to dispute in turn upon their respective allegations, before judgment was pronounced. At this announcement, the Bishop of Palenza rose and claimed the favour of the King and his Council on behalf of a native advocate of great repute, who was prepared to argue the cause of his master, Alphonso of Castille.

The King having signified his assent, the advocate referred to came forward and addressed the council with great fluency in choice Castilian Latin, interspersed with quotations from legal authorities. This discourse, which embraced a statement of the lineage of the kings of Castille and Navarre, and a narrative of the historical events connected with the violent usurpation of the territories now claimed by King Alphonso, was illustrated by references to numerous original charters and other documents, which, being handed in from time to time by the Bishop of Palenza, were read aloud by the Vice-chancellor, after which they were closely inspected by Henry himself.

When the Castilian advocate had concluded his argument, an advocate on the side of the King of Navarre replied at length in similar style, denying the allegations of his adversary, and advancing a counter claim to other territories of which his master had been forcibly dispossessed by King Alphonso or his ancestors, supporting also his contention by reference to documentary evidence. In the course of both arguments, the King frequently interrupted, demanding an explanation in clerical Latin of certain passages. The councillors also seemed to exhibit marked signs of impatience from time to time, and at length, almost before the Navarrese had well concluded his speech, Richard de Luci addressed the King to the effect that, without any disrespect to the representatives of the powerful and virtuous princes here present, it was plain that the bishops and barons whom the King had summoned to assist in the decision of this cause were unable to comprehend the allegations of either side any more than if they were spoken in a barbarous tongue, and, therefore, it seemed to him desirable that the advocates should be required to use the Norman tongue, which, he added, was held in most esteem in the courts of divers Christian kingdoms. To this proposition the Bishop of London offered as an amendment that clerical Latin should be admitted; but this was negatived by a murmur of dissent amongst the lay nobility present, and a lively interchange of views followed on both sides. The King, however, put a stop to the discussion in a peremptory manner, and gave his decision in favour of admitting clerical Latin, but only in written allegations, with which each party was to furnish the Council within three days, in order that when these documents had been clearly explained and discussed by the Council, judgment might be given without further parley. Wherefore the present meeting was declared to be adjourned.

When the King had given this decision, the two embassies, without venturing any objection, withdrew in the same order as they had arrived, and their example was followed by the majority of those present. The chief topic of interest amongst the military part of the audience was the appearance of the two champions, of whose prowess in the wars against the Saracens many stories had been spread abroad, and the probabilities of the matter being referred to the battle was earnestly discussed on all sides. The clerical element, on the other hand, was anxious rather to argue the points of procedure that had arisen during the recent hearing, and especially the pretensions of the baronage that only the French tongue should be admitted. Concerning this subject, the Treasurer, who joined Richard as the King’s retinue was leaving the hall, had much to say, advancing many reasons on either side, but himself leaning somewhat to that of the barons, on the ground that the record of every plea should be made in the vulgar tongue, as being a proclamation more solemn than any deposition in writing; though now, he added, matters were somewhat altered, except in the ancient franchises.

At this point Richard inquired of the Treasurer what difference existed between the sessions of the king’s court before the king himself or before his justices. At which the latter replied as follows:

“You must know that the King sits in justice alone and supreme in all manner of causes, yet for the most part he uses to commit the hearing of the pleas of the subjects, and pleas of the Crown touching his revenue, or for the breach of his peace, and of the assizes of the realm, to his barons and justices; although I have known our King to preside in the matter of a convention made between two freeholders, whilst he has committed the judgment of an appeal of treason to the justices. But in those causes which concern the inheritance of lands and the encroachment upon his forests, and appeals in ecclesiastical causes, he is ever wont to hear and determine everything, with the assistance of his household or of the peers of the realm.”

“And in which court,” asked Richard, “is the greater wisdom discernible.”

“Now, truly,” replied the Treasurer, “I am in doubt as to an answer; for though the suitors benefit through the skill and precision of the presiding justices, yet it cannot be denied that our King himself is an incomparable judge of those things which are resolved by the course of the civil and canon laws. For in these causes he is both wise and subtle and resolute, so that none may gain any advantage over him in disputation, as you would have seen had you been present at the hearing of the great cause between the Bishop of Chichester and the Abbot of Battle.”

“Nay,” said Richard, “but if you remember I was then present, being engaged in pursuing my own causes; and I have also heard of the King’s skill in deciding the matter of the inheritance of Earl Bigot in his late court at Windsor.”

“However,” the Treasurer resumed, “I do not otherwise commend those general processes, for a large assembly is in its nature incapable of judicial gravity; so that the sessions of such a body are generally attended with confusion and quarrels, and even with blows. As to this doubtless you are aware of the reason for the Archbishop’s absence to-day, him of York I mean, who is but now recovering from the wounds inflicted on him at the Council holden here last Easter.”

“I have heard some rumours of this dispute,” replied Richard, “but nothing plainly.”

“Then I will tell you,” said the Treasurer, “who was an eye-witness, though an unwilling one. The Council whereof I speak was convened by the Cardinal for the reformation of ecclesiastical abuses, and the King was present there with his sons, and all the bishops and abbots and chapters of the kingdom. And when all were assembled in the chapel of the infirm monks, here at Westminster, it was seen that those archbishops, and their suffragans and their monks, were arrayed against one another like hostile armies about to join battle. And presently the signal was given, when the Archbishop of Canterbury went forward to take his seat at the right hand of the Cardinal; for immediately the other Archbishop stood in his way, and claimed the dignity of that place as an ancient privilege of his Church; and because he still pressed forward, plucked him by the border of his pall. Whereupon the Bishop of Ely, who stood by, seized the aggressor by the back of his neck, and so held him fast, and his cap fell off and was broken. And at the same instant the servants of the Archbishop of Canterbury and others fell upon him, and threw him upon the ground and beat him, and trampled on him with their feet, so that he was rescued from their hands scarcely breathing. And by reason of this scandal, the King was compelled to make peace between them, and to send the Archbishop of Canterbury and the Bishop of Ely abroad with his daughter, as far as St. Gilles, whence they are only lately returned. But the Archbishop of York has little health and less desire to attend more councils.

“This then is the sum of that which you seek to know, that it is better, for the welfare of the whole community that there should be a constituted body, how small soever, to hear and resolve all causes at some fixed spot, rather than that the King should depute sundry of his courtiers to determine such matters, to whom the science of the Curia and of the Exchequer may perchance be wholly unknown. And it is certain that sooner or later these changes will become necessary, for in the multitude of our judges there is little wisdom and much guile. But concerning these things, I would desire you to hear Ranulph de Glanvill and his brethren, who have greater experience in them than we at the Exchequer.”

With such talk as this they reached the hall of the inner palace, where dinner was prepared, and where the King entertained at his own table the foreign legates, with many prelates and nobles of the kingdom, and other clerks and laymen of his court, marshalled in due order of precedence. The fare indeed was modest, as befitted the beginning of Lent; but Richard was surprised at the infinite variety of fish that was served at each table: lordly salmon and great trout both sodden and baked with verjuice and spices, pike of three feet in length, roasted whole upon spits and stuffed with herbs and anchovies, eels in crust, potted lamperns, with tench, bream, and dace, and other common fish, all denizens of the river, and many of them long fattened in the fish stews that formed an important feature of the palace inclosure. Together with these was served almost every sort of sea fish that found its way to the riverside market. As soon as the banquet was ended, the King withdrew into his chamber for the purpose, it was understood, of conversation with the Spanish and Navarrese delegates respecting the political institutions of their respective countries, a subject of invariable attraction for this royal statesman.

Richard, learning that his friend the Treasurer was disposed for study, readily joined himself with a company of the younger courtiers present, who purposed, according to custom, to repair to the playing fields beyond the city walls, in order to initiate the Lenten tournaments always held there on Sunday afternoon—when the Court happened to be at London—between the chivalry not yet dignified by knighthood and the noble youths of the city. Accordingly, not long afterwards a gay cavalcade wended its way along the Strand towards the city, where, having fallen in with an equal number of the youths of the city mustered in the great square before the Church of St. Paul, the two squadrons proceeded towards the fields, followed by an immense concourse of spectators, both on foot and horseback.

Arrived at the appointed spot, where spacious lists had been prepared for the occasion, the tournament was opened by single courses between champions on both sides,—the citizens being, according to custom, the challengers. In this mimic warfare, however, neither steed nor rider was protected by armour, the latter having only a shield and a headless lance. The encounter, however, though bloodless, was an equal test of horsemanship and skill in the use of the lance, whilst the risk of severe falls and contusions was a sufficient proof of hardihood. As soon as the single contests were exhausted, and the champion who had displayed the greatest prowess had been proclaimed victor by the umpires, and rewarded with the prize of a gold chain, with which he was decorated by the fair hands of the daughter of one of the city magnates, a general engagement followed, the opposing bands vying in their display of skilful manœuvres, forming and wheeling and charging in several ranks, until at a given signal the combat was suspended, and the result was declared to be in favour of the courtiers, a verdict which excited some murmurs from the populace. Indeed Richard, who had remained an interested spectator of the tournament, having won his spurs many years before in the expedition against Toulouse, observed that an evident rivalry existed between the courtiers and citizens, which was not confined, as he was reminded by a recent tragedy, to a harmless encounter like the present. For as the former, after a joyous carousal and ceremonious farewell of the civic potentates, were returning again towards Westminster, the young heir of Bigot, next to whom he rode, asked if he intended on the morrow to witness the trial of John the Elder and those citizens, his fellows, who stood accused of housebreaking and other crimes against the king’s peace; of which, doubtless, he added, the murder of the brother of his father’s old friend and companion in arms, the Earl Ferrers, when the Court first came to London, was one.

The sun had set behind the orchards and thickets of the Abbey before the party returned to Westminster; and immediately after supper Richard sought his couch, resolved upon being present at the expected trial of the recreant magnates of the city.

On the following morning, therefore, he rose early and waited upon his lord and patron, Richard de Luci, the justiciar, to whom the conduct of the trial belonged. Here he was informed by one of the deputy marshals of the Curia that the midnight robber, who had been previously wounded and secured, had been admitted as the king’s prover, and that he had already denounced many of note amongst the younger citizens, some of whom had fled the city, and others were already taken, besides John the Elder, all of whom were lodged in the gaol of Newgate, and would be brought before the king’s justices at Westminster that very morning. Upon hearing this news, Richard proceeded to the lodging of his kinsman, Ranulph de Glanvill, who, on learning his wishes, readily consented to accompany him.

Long before the hour appointed for the trial, a crowd of citizens had assembled in front of the palace gates, while more privileged courtiers had taken their stand in the body of the Hall itself. At the hour appointed for the proceedings of the court to begin, the Justiciar, Richard de Luci, entered, attended by various serjeants and officers, and also by several clerks and scribes who were prepared to endite a report of the proceedings in the rolls of the court. The Justiciar took his seat on the broad bench at the summit of the Hall, and the clerks occupied benches at a table immediately in front. Next the king’s “prover” was brought in, unarmed, for, having lost his right hand in the manner before related, it was not intended that he should substantiate his accusation by a personal combat. After him followed the sheriff of London, William, son of Isabel, to whose custody the prisoners had been committed, and three or four of these wretches, half-naked and securely pinioned, under the escort of the sheriffs, serjeants, and the gaoler of the king’s prison, were next brought up to the bar which divided the judges and clerks from the body of the court.

The proceedings which followed were short and simple in the extreme. The Justiciar rose and spoke a few words to the effect that the King was deeply moved to anger by the frequent contempts and crimes committed heretofore by divers malefactors of that city, which he was resolved to visit with condign punishment, as would presently be evident. At the conclusion of this significant preamble, the king’s “prover” was pushed forward by the sheriff. Pale as death, with trembling limbs and faltering accents, he appealed John the Elder, and others his associates, for that they did by night within the king’s peace, feloniously break into the lodging of a certain lord, namely the brother of the Earl of Ferrers, and him wounded, and dragged into the street, and killed with blows; and also for that the same did, not long afterwards, feloniously break into the lodging of another lord, namely Robert de Estutevill, and this he offers to prove as the court shall direct, being a man maimed. And the defendants, thus appealed, answered, and traversed the entire charge, word for word. Thereupon twelve citizens, who had been impanelled by the sheriff in open court, as dwelling in the same wards with the accused, and sworn to declare the truth of the matter, came forward and stated that they held the said persons appealed in grave suspicion of guilt, who thereupon demanded the franchise of the city, namely, to clear themselves by the joint oath of their peers. But the Justiciar denied this claim, on the ground of the supreme jurisdiction of the king in his court, and decreed that they should clear themselves by the water, for such, he said, is the King’s commandment, and that it be done suddenly.

The whole proceedings had not lasted ten minutes, and here were six men adjudged to a shameful death practically unheard, and with no appeal but to the justice of Heaven to work something like a miracle in their behalf, for such was the real meaning of the ordeal of water—a yet more desperate resource than the trial of the heated iron, though the accused had not even been permitted to choose between these implements of torture.

Thus thought Richard de Anesti as he found himself hurried along in the eager throng of sightseers which pressed towards the great doorway through which the officials and prisoners had already passed on their way to the place of torment.

It is related that in the old days of simple piety and austere faith before the Conquest, the ordeal was always performed as a solemn religious mystery in the interior of a church, and the Divine interposition on behalf of the innocent was invoked by prayer and fasting; but now the test had degenerated into a meaningless form of law—a straw carelessly dropped within reach of a sinking man. Therefore, without proceeding as far as the Church of St. Peter, the procession halted on the verge of the abbey precincts, where, in an excavation made for the purpose, a large copper filled with water was already steaming over a roaring furnace of pine logs. Here the prisoners were halted, and the sheriffs’ serjeants bandaged each probationer’s hand and arm with thick folds of linen, to the upper and lower joints of which the sheriff affixed his seal upon a thin disc of molten lead. Then the accused were called upon in turn to attempt the ordeal, which consisted in plunging the bandaged arm into the now boiling cauldron, so as to snatch away from the bottom a large white stone. This John the Elder successfully accomplished, but two out of his five associates were not so successful; for one of them being overcome by the heat of the furnace, or blinded by the smoke and flame, was unable to lay hold of the stone, and still groping for it with his arm, fainted with the pain, and would have been either boiled or roasted alive if the sheriff had not plucked him forth. This horrible sight so disconcerted the last of the accused, that, having advanced to the edge of the furnace, his courage failed him, and he piteously refused to make the required attempt. Thereupon he was adjudged guilty, and sentenced by the Justiciar to be hanged with the other prisoners who had failed to clear themselves in the manner required by custom. The four remaining prisoners who had braved the terrors of the ordeal were now respited in order that the judgment of God might be apparent from the inspection of their arms at the lapse of three days; for then he upon whose flesh appeared no mark of scalding was held to be unscathed by the water, and was discharged or banished, according to his character; but otherwise he was punished with the extreme rigour of the law. These then were now removed under a guard to prison, but the two already convicted, having been hurriedly tied by their feet to the tails of two horses, were dragged in that manner by the sheriffs and a mounted party towards the place of execution, followed by a large part of the spectators both on horseback and on foot. Richard had no desire to be present at the final act of justice, but returned slowly towards the palace, still musing upon the problem which had been suggested by the recent scene, and which was nothing less than the possibility of the administration of justice in a spirit of equity and humanity.

He had not proceeded far before he was overtaken by Ranulph de Glanvill and his brother William, and together they returned to the White Hall, where they found the Treasurer and a few other clerks and courtiers awaiting the King’s return from his daily hunting expedition, and here, after some conversation upon the subject of the late proceedings, Richard, addressing himself to the Treasurer, mentioned the objections which had occurred to him as a layman in the judgments of criminal presentments, inquiring whether this process was common to other kingdoms, and for what reason the great perfection displayed in the judgments of the Curia and Exchequer in other pleas had not been extended also to these; and, lastly, whether the evil were such a one as might be remedied. To which the Treasurer replied as follows:

“It is true that neither the providence of the king and his justices, nor the vigilance of the sheriffs and his other ministers, can wholly prevent those evils of which you have complained. But whether the laws themselves and the assizes of the kingdom are to blame therein, I will not willingly decide, but will refer you on this point to our most learned justice, your kinsman here.”

Ranulph de Glanvill, who was thus appealed to, appeared to accept the Treasurer’s challenge, for he immediately addressed himself to Richard in the following words:

“I admit,” he began, “in part the truth of what you have spoken. But consider now that there is no similitude between the Common Pleas of the King’s Court or at the Exchequer and the presentments of which you make mention, which notoriously are practised in the provincial courts, according to the ancient laws of the English, among which is this same trial by the ordeal, whereas the Curia and Exchequer are in their origin wholly Norman. But it is to be considered in respect of the ordeal, that if the accused be nobles or freemen, or burgesses, they shall have the appeal of battle, or the judgment of their peers, or the custom of their city; though truly our King is no respecter of persons, as you have just now seen, and thinketh that for men convicted by the oath of their neighbours, the ordeal is sufficient. So then this judgment is clearly to be laid to the charge of the English laws, and I myself who have read these laws throughout, believe that they are requisite to the state of this kingdom, and that they will continue with little change into after times. For the nature thereof is this: To preserve the peace of God, together with the king’s peace, unto all men, wherein it is enjoined that the whole body of people shall be assisting, and therefore they are the best judges of their fellow’s guilt or innocency, to which end also they solemnly invoke the judgment of God to declare the truth before the guilty are punished.”

Richard could not help admitting the justice of these reflections, and because, he added, he himself had spent nearly six years in the prosecution of a single suit, it seemed at least a merit that justice should be expeditious even at the expense of outward ceremonies.

Then several courtiers who were present having marvelled greatly at the exceeding length of his suit, at their request, and with the permission of the Treasurer and the other great men there, Richard spoke as follows.

WESTMINSTER.—THE KING’S COURT

“It is now thirty years ago,” Richard began, “that William de Sackville, my uncle, died, leaving to me and to one other a disputed inheritance. And the cause hereof was this: that the same William, long before, was contracted in the bond of matrimony with Albreda, daughter of Geoffrey de Tregoz, but notwithstanding this solemn vow, he soon afterwards married Adeliza, daughter of Aubrey de Vere, contrary to the laws of Holy Church. And thereupon Albreda, whom he had thus wronged, brought her suit in the ecclesiastical courts, and because she could not have justice done her there, she appealed thence to the Bishop of Winchester, being at that time the legate of our lord the Pope, by whom the truth of the matter was certified to the Court of Rome. And afterwards, by virtue of a certain rescript of our lord the Pope, sentence of nullity was pronounced in a synod held at London in the year of Our Lord 1143, and accordingly the said William returned to Albreda, and lived with her till his dying day. But although he thus submitted himself to the decree of Holy Church, and put away her with whom he had sinned, yet he continued to bear a great affection towards her, and especially to the daughter whom she had borne to him, by name Mabel. And many years after, being infirm with age and sickness, the said Mabel and her husband came to him and abode with him till his death, and afterwards entered upon all his manors and lands, on the pretext that the said Mabel took the same as his daughter and heiress. Moreover, they feigned that the said William, before his death, had repented of the evil that he had wrought towards Adeliza, having confessed the whole truth in the presence of the Abbot of Colchester and other religious persons, as follows. That he had by no means entered into that contract with Albreda, as had been supposed, but had received a release thereof from her father to himself and his father, by agreement on both sides, after which he married Adeliza openly in the face of the Church, who was driven from his house against his will by the subtle devices of Albreda, and of those who were in hope to inherit in default of his issue by her such as afterwards came to pass. Alleging further that the legate and those who were joined with him in pronouncing that sentence of nullity had been influenced therein by gifts.

“And because Mabel and her husband were in possession of my rightful inheritance, and would not even make a concord with me about the same, I sent a certain man of my own into Normandy for the King’s writ, whereby I impleaded my adversaries. And when my messenger brought me the writ, I proceeded to Sarum, in order that it might be returned under the Queen’s seal. And when I came back I heard that Ralph Brito was about to cross the water, so I followed him to Southampton to speak with him, in order that he might purchase for me the King’s writ addressed to the Archbishop, because I knew that the plea would be removed into the Archbishop’s court. And having returned from Southampton with the Queen’s writ, I went to Ongar, and delivered the writ to Richard de Luci, who, having seen the same, gave me a day for pleading at Northampton on the eve of St. Andrew; and before that I sent Nicholas my clerk for Geoffrey de Tregoz, and for Albreda his sister, to wit she who had been my uncle’s wife, whom he found at Berney, in Norfolk. And when the clerk returned, I went to Northampton to open my pleadings with my friends and helpers, and hence Richard de Luci gave me another day at Southampton, on the fifteenth day. Afterwards Ralph Brito came from Normandy, and brought me the King’s writ, whereby the plea was removed into the Archbishop’s court, and I carried the writ to Archbishop Theobald, whom I found at Winchester; and then he gave me a day on the feast of St. Vincent, and that plea was held at Lambeth; and thence he gave me a day on the feast of St. Valentine the Martyr, and that plea was held at Maidstone. From thence he gave me a day on the feast of St. Perpetua and St. Felicity; and meanwhile I went to the Bishop of Winchester, to talk with him, so that he might certify the divorce which had been before him in the synod at London. And having received the bishop’s certificate, I appeared on the day assigned to me prepared for pleading, and that plea was held at Lambeth. From thence he gave me a day on the Monday next after the Lætare Jerusalem. And meanwhile I went for Master Ambrose, who at that time was with the Abbot of St. Alban’s, in Norfolk; and Sampson my chaplain I sent to Buckingham for Master Peter de Melide.

“Having thus secured the clerks above-named, I kept my day with my helpers at London. Thence the Archbishop gave me a day on Quasimodo Geniti Sunday; and meantime I sent John my brother beyond sea to the King’s Court, because I was informed that my adversaries had purchased the King’s writ not to plead until the King should return from beyond sea; and therefore I sent my brother for another writ, that my plea should not be stayed by reason of this writ of my adversaries. And in the meantime I went myself to Chichester, to talk with Bishop Hilary, so that he might testify to the divorce which had been pronounced in his presence by my lord of Winchester, in the synod at London; and I received his testimony, namely, the letters which he despatched to the Archbishop testifying the divorce.

“At London I kept my day with my clerks and witnesses and friends and helpers, and I remained there during four days, pleading every day. Thence he gave me a day on Rogation day, and when I kept it at Canterbury, my adversaries said that they would not plead on account of the summons of the King’s army against Toulouse. So I followed the King, and I found him at Auvilar, in Gascony. And in this journey I waited thirteen weeks before I was able to have the King’s writ to proceed with my pleadings. As soon as I had purchased the King’s writ, I returned, and having found the Archbishop at Mortlake, I delivered the King’s writ to him, and he gave me a day on the feast of St. Crispin and St. Crispianus, on which day I came to Canterbury; and from thence he gave me a day on the octaves of St. Martin, on which day I came to Canterbury. From thence my lord of Canterbury gave me a day on the feast of St. Lucia the Virgin; and meanwhile I sent Master Sampson my chaplain to Lincoln for Master Peter. But when my day came I was unable to plead on account of my illness; so I sent my essoigners, who had me excused at Canterbury. And thence a day was given me on the feast of St. Fabian and St. Sebastian, on which day I came to London, where my lord of Canterbury then was; and from thence he gave me a day on the feast of St. Scolastica the Virgin, and I kept it at Canterbury; and thence on Lætare Jerusalem, and I kept it at London; and thence on Misericordia Domini Sunday. And in the meantime I sent Robert de Furneis and Richard de Marci for Godfrey de Marci, and I myself went to the Bishop of Winchester, that I might obtain a more perfect certification of the divorce pronounced by him. And I found the bishop at Fareham, by Portsmouth, and from thence I brought back with me Master Jordan Fantasma, here, and Nicholas de Chandos, that they might be able to testify by word of mouth what the bishop had also testified by his writ. And I kept my day at London, prepared to plead, and thence the Archbishop gave me a day on the Close of Pentecost. And meantime I went myself to the Bishop of Lincoln for Master Peter, who then was with him at Stafford, and I sent Sampson my chaplain for Master Steven de Binham, whom he found at Norwich. And thence I kept my day at Canterbury, prepared to plead with my clerks, witnesses, friends, and helpers; and there we pleaded for two days. From thence he gave me a day on the octaves of St. Peter and St. Paul, and I kept it at Wingham; and thence on the feast of St. Sixtus, and I kept it at Lambeth; and thence on the Decollation of St. John the Baptist, and I kept it at Canterbury; and thence on the feast of St. Luke the Evangelist. In the meanwhile I crossed the water that I might crave license from our lord the King to appeal to Rome; and having received the license, I appealed to Rome till Lætare Jerusalem. After this I sued for the Archbishop’s writ of appeal; but he refused to give it me forthwith, but he gave me a day to receive it at Canterbury, on which day I came and received my writ, but without seal, so that I might show it to my advocates and obtain their opinion whether it was according to law. And afterwards I sent his writ, by Sampson my chaplain, to Lincoln, to show it to Master Peter. And afterwards I sent it to Master Ambrose, whom the messenger found at Binham. And when the writ was corrected by my advocates, I brought it again to Canterbury, that it might be sealed; but after seeing it, they refused to seal it as it was, but they gave me another also without seal. Thence, after I had received this writ, I went to show it to the Bishop of Chichester, and when I had heard his advice I returned. And then I sent the writ by Sampson my chaplain to Master Peter. I then sent the same writ again to Master Ambrose at St. Alban’s; and when I had received their advice, and the writ being corrected, I went to the Archbishop at Wingham, and there my writ was sealed. And when I came back I sent John my brother to Winchester, in order that he might purchase the bishop’s writ, certifying the divorce to the Holy Father, and I myself went to the Bishop of Chichester, whom I found at Salisbury, in order that he might certify the divorce by his writ addressed to the Holy Father in the same manner as he had done to the Archbishop. And a second time and a third time did I send my brother to Winchester before I could have an available writ. Thereafter I got my clerks ready, and sent them to Rome, to wit, Sampson my chaplain, and Master Peter de Littlebury, and one man to attend them. And when they came back I received from them the writ of our lord the Pope, and brought it to the Bishop of Chichester and the Abbot of Westminster, to whom the same was addressed, in order that my plea might be brought into their court. After they had seen the apostolical precept, they fixed a day for me to plead at Westminster in eight days of the feast of St. Michael. And I kept my day, with my advocates and witnesses and friends and helpers, and there we tarried three days before we pleaded, on account of the King’s commands about which the abbot and the bishop were employed. And thence they gave me a day in eight days of St. Martin. In the meantime I sent John my brother for Godfrey de Marci, in order that he might attend as my witness, and he could not come, because he was ill, but he sent his son in his place. On the appointed day I came to London, prepared and ready to plead, because I thought that I should then obtain my judgment, and there we tarried five days, and then my adversaries appealed to the presence of the Holy Father himself till the feast of St. Luke the Evangelist. And I requested the instrument of appeal, and they gave me a day at Oxford on the feast of St. Andrew. And I kept my day, and tarried there for nine days before I could obtain my instrument; and having received it, but without seal, I carried it to Master Peter at Lincoln, in order that he might correct it. The writ being corrected, I carried the same to the Bishop of Chichester at Winchester, on the octaves of the Epiphany, in order that it might be sealed there. But the bishop would not seal it, because the Abbot of Westminster was not there; but afterwards it was sealed at Westminster on Lætare Jerusalem. Afterwards I went to the Archbishop of York for his writ deprecatory, addressed to the Holy Father, and to the Bishop of Durham for his writ to the Holy Father and the cardinals; and I found them both at York. And I returned to the Bishop of Lincoln for his writ to the same, and afterwards to the Bishop of Winchester for his writ; and I found him at Glastonbury. And when the time of appealing drew nigh, having prepared my clerks, I sent them to the Court of Rome, where they tarried sixty-two days before they could have my sentence. And now, if you would know how they fared on that journey, Master Jordan here will tell you, who was there himself.”

Hereupon the courtiers having entreated Master Jordan to relate what befell him at the Court of Rome, he complied with their request as follows:—

“As soon as I had received these commands from the knight my master here, together with the writs and allegations on our side, and twenty-five marks in silver for our expenses, I joined myself with Master Sampson, my lord’s chaplain, and one man to attend us, and having prepared ourselves with horses and an outfit suitable to the journey, we slept that night in London. And on the following day we rode to Rochester, and on the next to Canterbury, and thence half a day’s journey to Dover, where we took ship to Witsand. And thence, on the seventh day, because the ways were foul, we came to Paris, where for three days I frequented the English school, being desirous of embracing many of the scholars who were formerly my own. And thence we proceeded, but slowly, because of the forests and from fear of robbers, to Chalons; and thence, ten days’ journey amongst the hills, to the hospice of the Great Mount. And thence gladly we fared by the plains to Pavia; and so by easy journeys to Cremona, and Parma, and Biterba, and on the fifth day we arrived at Rome. I will not speak now of the greatness of that holy city, which I then beheld for the first time, but will proceed to relate what befell us there, according to your wish.

“At the first I laboured for three days in the Curia, to obtain letters confirmatory; and after I had advanced many reasons on this behalf, our lord the Pope spoke to me benignly, promising that the same should be granted. And thereupon I made a gift to him of a silver cup, of the value of six marks. But when I daily prayed for the delivery of these letters, our lord the Pope was unwilling, because he would first hear our adversaries, who had been detained by the way. And when I still further importuned him, he answered sharply, ‘Ye have had your answer,’ to which I replied quickly, ‘Yea, and a masterful one.’ Then he in great anger inquired, ‘Is it not also a just one?’ Whereupon, casting down my eyes, I replied again, ‘Lord, I know not.’ But he forthwith commanded me to keep silence and to withdraw.

“After this I went to Piacenza, and afterwards to Pavia. And in the meantime our adversaries arrived in Rome, having been taken and plundered at Chalons. Therefore I too returned to the city after visiting Bologna, where I engaged certain of the most learned doctors in the civil law in our behalf. And after I had returned the Court ordered that we should be prepared to plead on the third day from then; on which day, when we were all together before the Court, our lord the Pope said thus: ‘Ye shall only speak to the matter and not of things immaterial.’ And thereupon we made our allegations on both sides, and our answers thereto on both sides. And once our lord the Pope cut short our adversaries’ allegation, saying fiercely, ‘We want no long history!’ so that their advocate, dismayed, lost the sense of his argument. And again, when they complained that I had engaged all the best advocates for our side, he laughed loudly, saying, ‘There will never be found a lack of advocates in the Roman Court.’ And when I spoke in my turn, knowing the fastidiousness of our lord the Pope, I spoke briefly and to the point; but at the end I wept somewhat, when I related the evils that we had endured. Whereupon, turning towards the cardinals, he laughed, and whispered something to them, whereat they laughed also. And because our adversaries especially denied the authenticity of certain transcripts of briefs formerly received by the legate in England, pronouncing the opinion of the Roman Court for the divorce to be decreed, our lord the Pope commanded that they should be given to him; and when he had seen them, he gave them into the hands of the cardinals, who also examined them, and finally they commanded the clerks to search for the counter briefs, and afterwards compared them with our transcripts, declaring them to be authentic. And when we had concluded our arguments, and were all seated, our lord the Pope asked if we had any further allegations, and I then demanded judgment in our cause. But he commanded us to depart and write out our allegations, and deliver them to him the same day. And after I had done this, with the help of my advocates, there remained nothing to be considered of save the sentence itself, to procure which, in our favour, was plainly beyond our skill, unless also it was due to the justness of our cause. Nevertheless, during the following week we implored the Divine aid with prayer and fasting and continual almsgiving. And Master Sampson greatly assisted us at this time by his remarkable piety. For he not only remained fasting for five days, during all which time he perambulated the holy places and shrines of the city, commending our cause to the pilgrims and other devout persons there, giving alms also to all needy persons, whether they had craved them or no, so that the fame of his good works was noised abroad throughout the city; but further, when we attended the Court again to receive sentence, kneeling in the door, he embraced the feet of each cardinal as he entered, as though he would wash them with his tears, so that all present, and even our adversaries, pitied his miserable condition.

“At length, about the ninth hour, our lord the Pope came forth from the inner council chamber with the cardinals, and because I saw that the ushers, whom I had loaded with gifts, smiled graciously upon me, I took heart. And when the cardinals were all seated, and we stood forth on one side, and our adversaries on the other, as had been our custom, our lord the Pope commanded, ‘Stand ye together in the midst; for now there is no longer any strife betwixt you, since we have brought you into peace with one another.’ And when we had come together, our lord the Pope began to recall the nature of our suit, and how, after full examination of our allegations and other writings, sentence had been prepared in the accustomed manner. Yet I then took no note of his speech, because I was not able to compose my senses, standing like one in a dream, until the principal prothonotary of the Court arose, and began the reading of the sentence. But as soon as I heard the words, ‘to our beloved son, Richard de Anesti,’ then I was suddenly aware that we had gained our cause, for the sentence of the Court is ever wont to be addressed to the side that has prevailed. And when the sentence was read, we fell at the feet of our lord the Pope, and when we rose again, Master Sampson lay still at his feet like one dead, having fainted away through joy after his fasting. So we raised him up tenderly, and bore him away, and our lord the Pope ordered that we should receive the instrument to see, if it needed any correction; and having received his blessing, we departed joyfully.

“After this we received the command of our lord the Pope that we should not leave the city. Moreover, we owed forty shillings to the merchants of Rome, who demanded to hold our instrument and writings in pawn for the same. And being all of us suffering through illness, we cast lots which should return alone to England for succour and to bear our tidings. And the lot fell upon Master Sampson, who departed from the city secretly. After whose departure I daily implored the license and benediction of our lord the Pope, that I might depart also; but I could not obtain it because I had not yet visited him and the cardinals to bestow my gifts upon them, as the custom was. But because I was unable to do this for lack of means, and since my sickness increased daily, I borrowed forty shillings from a certain clerk of the Bishop of Lincoln, who was then attending the Court in the matter of the appeal of the Abbot and Convent of St. Alban’s against the jurisdiction of the said bishop. And having redeemed our instruments from the merchants, I changed my dress, and craving the license of the holy Apostles Peter and Paul, and receiving the apostolical benediction, in the midst of the crowd, I departed secretly from the city. And each day till I had reached the hospice of the mount I was in fear lest I should be brought back; but at length, with the Divine protection, I reached England in safety.”

At the conclusion of Master Jordan’s narrative, which had been listened to with deep attention by every one present, Richard de Anesti again resumed his story at the point where it had been left off.

“When my clerks had returned from Rome, as you have just now heard, they delivered to me the sentence which confirmed the former one of adultery, whereof one instrument was directed to the Archbishop, another to Richard de Luci, and the third to me, and with these I went to my lord Richard de Luci, whom I found at Rumsey; and there we awaited the return of the King, who was about to come back from Normandy. Thence I followed the Court for three weeks before I could make fine with the King; and because the King was vexed on account of his Holiness not having directed any brief to him, I sent a messenger on the following day to the Holy Father for a writ directed to the King (which my messenger afterwards brought to me on the Close of Easter, at Windsor). After I had fined with the King, my lord Richard de Luci, by the King’s precept, gave me a day for pleading at London, at Mid-Lent, and there was then a Council; and I came there with my friends and my helpers, and because he could not attend to this plea because of the King’s business, I tarried there four days, and from thence he gave me a day on the Close of Easter, and then the King, and my lord Richard, were at Windsor; and at that day I came with my friends and helpers, as many as I could have, and in the meantime I sent my brother for Ranulph de Glanvill, and because my lord Richard could not attend to this plea because of the great plea of Henry de Essex, the judgment was postponed from day to day till the King should come to Reading, and at Reading in like manner it was postponed from day to day till he should come to Wallingford. Afterwards, because my lord Richard was going with the King in his war against Wales, he removed my plea into the Court of the Earl of Leicester at London; and there I came. But because I could not get on at all with my plea, I sent to my lord Richard in Wales, to the end that he might order that my plea should not be delayed; whereupon, by his writ, he ordered Ogier, the King’s server, and Ralph Brito to do justice to me without delay. So they gave me a day at London. There I kept my day with my friends and helpers, and from thence my adversaries were summoned by the King’s writ, and by my lord Richard’s writ, that they should come before the King. And we came before the King at Woodstock, and there we remained for eight days, and at last, thanks to our lord the King, and by the judgment of his Court, my uncle’s lands were adjudged to me, being the sixth year since my suit began. Moreover, I had spent in these causes the whole of my substance, namely: for the expenses of my journeys and my living, and that of my messengers and others, £126 14s., besides eight palfreys and pack-horses that were killed in those journeys, £6 6s. 8d.; and in gifts to my advocates and helpers in the Archbishop’s Court, £21; and in the King’s Court I spent in gifts, both of money and horses, £13; and to ‘Ralph, the King’s physician, I gave £21; and to the King a hundred marks of silver, and to the Queen a mark of gold for my fine. And besides the money I had of my own, I borrowed, of certain Jews at several times, the greater part of that which I spent; and I paid £32 1s. 9d. for the usance thereof; and, in short, after I had enjoyed my uncle’s lands and goods for upwards of three years, I still owed fifteen marks of my fine to the King, and to Hakelot the Jew £27, the interest whereof had mounted up to £20 9s. Therefore, my lords, it seemeth to me that it is better for a man to have injustice done to him without much delay, than that he should lose, perchance, more than he has gained by due process of law.”

At the conclusion of Richard’s narrative of his famous law-suit, there was a renewal of the conversation upon judicial matters until the King’s return from hunting caused a general dispersal of the courtiers.

In the course of the next few days the Court left London once more, but Richard chose to remain, partly because of the attraction offered by his pleasant intercourse with old friends amongst the clerks of Westminster and the canons of St. Paul’s, and partly, also, because he was as yet unable to make any fine with the King; so that he was resolved to await the session of the Easter Exchequer before taking more active steps in his own business.

34.

CRIMINAL PROCEDURE FROM THE THIRTEENTH TO THE EIGHTEENTH CENTURY1

By Sir James Fitzjames Stephen, Bart.2

HAVING in the last chapter traced the history of the courts of a criminal jurisdiction, I now proceed to the history of the procedure followed for the punishment of criminals. I shall give the history of each step in the procedure separately, and I intend in the present chapter to treat of the procedure from the arrest of the offender to his discharge or committal for trial. This consists of two stages, namely, the apprehension of the offender, closely connected with which is the law as to the suppression of offences, and the preliminary investigation before a magistrate, which results in the discharge, or committal for trial, or bailing of the supposed offender.

In each case, the law itself was as a matter of fact subsequent to the establishment of the officers or courts by which it was carried into execution. Also, in each case, after the practice of the officers or courts had gradually formed the law, alterations were made by statute both in the law itself and as to the officers and courts by whom it was to be administered.

1The Apprehension of Offenders and Suppression of Offences

I have described above the system for the apprehension of offenders and the prevention of crime which existed down to the time of William the Conqueror and his sons.

The foundation of the whole system of criminal procedure was the prerogative of keeping the peace, which is as old as the monarchy itself, and which was, as it still is, embodied in the expression, “The King’s Peace,” the legal name of the normal state of society. This prerogative was exercised at all times through officers collectively described as the 2 Conservators of the Peace. The King and certain great officers (the chancellor, the constable, the marshal, the steward, and the judges of the King’s Bench) were conservators of the peace throughout England, but the ordinary conservators of the peace were the sheriff, the coroner, the justices of the peace, the constable, each in his own district. During the reigns of Henry II., Richard I., John, Henry III., and Edward I., the system administered by these authorities (with the exception of the justices of the peace, who were not established till the reign of Edward III.) was elaborated and rendered more stringent than it had been before the Conquest by a long series of enactments.

The first of these was the 3 Assize of Clarendon issued by Henry II. in 1166, just 100 years after the Conquest. It was re-issued as the 4 Assize of Northampton in 1176, in the form of instructions to the six “committees of judges who were to visit the circuits then marked out.” The provisions of the Assize of Clarendon bear more directly on the present subject than those of the Assize of Northampton.

1 The Assize provided that the sheriffs and justices should make inquiry upon the oath of twelve men from every hundred and four men from every township whether any man in any township was 2 a robber, murderer, or thief, or a receiver of robbers, murderers, or thieves; that every person so accused should be taken and brought before the sheriffs and by them before the justices, and that no lord of a franchise 3 “nec in honore etiam de Wallingeford” should interfere to prevent the sheriff from entering his franchise either to arrest accused persons or to examine the frank pledges and see that every one was a member of a frank pledge. The Assize of Northampton 4 enacts amongst other things that every robber on being taken is to be delivered to the custody of the sheriff, and in his absence to be taken to the nearest “castellanus” to be kept by him till he is delivered to the sheriff. The Assize also provides (art. 2) that no one is to be allowed to entertain any guest in his house, either in a town or in the country (neque in burgo neque in villâ), for more than a night unless the guest has some 5 reasonable excuse which the host is to show to his neighbours, and when the guest leaves, he must do so in the presence of neighbours and by day.

By the 6 Assize of Arms, issued in 1181, every one was bound to have certain arms according to his property. The justices, on their eyre, were to make the representatives of all hundreds and towns swear to give in a return showing the property of all persons in the neighbourhood, and which of them had the arms which, according to their property, they were bound to have. Those who had not such arms were to be brought before the justices to swear to have them by a given day, and “justitiæ facient dici per omnes comitatus per quos ituræ sunt, quod qui hæc arma non habuerint secundum quod prædictum est, dominus rex capiet se ad eorum membra et nullo modo capiet ab eis terram vel catallum.”

The main object of these provisions no doubt was to provide a military force; but they were also intended to give the local authorities the means of suppressing violent crimes, for the persons so armed formed the power of the county (posse comitatus), which it was the duty of the sheriff in case of need to raise by hue and cry.

This is set in a striking light by a 1 passage in Bracton, which describes the steps to be taken on opening a commission of eyre by the justices in eyre. The representatives of the county having been convened, the justices were to make a speech to them. “In the first place, concerning the peace of our Lord the King, and the violation of his justice by murderers, robbers, and burglars, who exercise their malice by day and by night, not only against men travelling from place to place, but against men sleeping in their beds, and that our Lord the King orders all his faithful subjects, by the faith which they owe to him, and as they wish to preserve their own, to give effectual and diligent counsel and aid to the preservation of peace and justice and to the taking away and repression of the malice of the aforesaid.” The principal persons are then to be taken apart, and are to be privately informed “that all persons of fifteen years of age and upwards, as well knights as others, must swear that they will not receive outlaws, murderers, robbers, or burglars, nor consent to them, nor to those who receive them, and that if they know of such persons, they will cause them to be attached, and give information to the sheriffs and bailiffs, and, if hue and cry is raised upon them, will, as soon as they hear the cry, follow with their households and the men of their land.” If the criminal is not taken on the spot, he is to be tracked. “Let them follow the track through their own land, and at the end of their own land show it to the lord of the next land, and thus let pursuit be made from land to land” (township to township) “with all diligence till the criminals are taken, and let there be no delay in following the track unless a difficulty arises by the coming on of night, or by other reasonable cause, and they must, according to their power, arrest those whom they suspect without waiting for the orders of the justice or the sheriff, and must inform the justices and sheriffs of what they have done. They must also swear that if any one comes into any village or town or elsewhere to buy bread or beer or other victuals, and is suspected of doing so for the use of criminals, they will arrest him and deliver him, when he is arrested, to the sheriff or his bailiffs. They must also swear that they will take in no one as a guest in their houses by night, unless he is well known, and that if they entertain any unknown person they will not permit him to leave on the morrow before it is clear daylight, and that in the presence of three or four of their nearest neighbours.”

Bracton wrote in the reign of Henry III. In the time of Henry’s son and successor the system embodied in these enactments reached its highest point of strictness. This appears from the provisions of the Statute of Winchester (13 Edw. 1, st. 2, c. 1, 2, 4, 5, 6), passed in 1285. 1 This statute enacts (ch. 2) that when a robbery is committed the hundred shall be answerable unless the robbers are apprehended within forty days, that in all walled towns the gates shall be shut from sunset to sunrise, that a watch should be set at each gate, and “that no man do lodge in suburbs from nine of the clock until day without his host will answer for him.” All strangers passing the watch at night are to be arrested till morning. All roads are to be cleared, “so that there be neither dyke, underwood, nor bush whereby a man may lurk to do hurt” within 200 feet on each side of the road. Lastly, every man is to “have in his house harness to keep the peace after the ancient assize” (the Assize of Arms). The arms were to be viewed twice a year by constables chosen for that purpose, who were to present defaulters to the justices. The sheriffs and bailiffs were to follow the cry with proper horses and armour whenever it might be raised.

By this time frank pledge must have become obsolete. The Statute of Winchester makes no mention of it, nor does the Statutum Walliæ, nor indeed does any other statute with which I am acquainted treat it as an actually existing institution for keeping the peace. The name indeed continued and still exists. The view of the frank pledge, that is to say, the verification of the fact that the frank pledges were in full efficiency, and that every one belonged to such a body, was anciently one of the most important duties of the county and hundred courts and the courts leet. Hence, as the county and hundred courts were disused, the expression “the view of frank pledge” came to be synonymous with “court leet.” The chief business transacted in these views of frank pledge or courts leet was the presentment of petty nuisances, and especially the “assiza panis et cerevisiæ,” violations by bakers and brewers of rules as to the quality of their bread and beer. It is in this sense that frank pledge is referred to in the 1 Parliament Rolls, and that the expression is used by Coke. The “Statute for View of Frank Pledge” (18 Edw. 2, ad 1325) specifies thirty-four such articles as to which stewards were to inquire in their leets.

Shortly the system just described was as follows. Upon the commission of a felony any one might arrest the offender, and it was the duty of any constable to do so. If the offender was not arrested on the spot, hue and cry might and ought to be raised. The sheriff and constables from the earliest times, the justices of the peace from the beginning of the reign of Edward III., were the officers by whom the cry was to be raised. In order to render the system effective, every one was bound to keep arms to follow the cry when required, all towns were to be watched and the gates shut at night, and all travelling was put under severe restrictions.

The Assize of Arms and the 1 Statute of Winchester fell into disuse, but the right of summary arrest in cases of felony continues to this day to be the law of the land, and though the sheriff’s personal intervention in the matter has practically fallen into disuse, the justices, and the constable are still the authorities by whom the system is worked.

One great alteration was made in the system just described between the fourteenth and the seventeenth centuries. During that period, summonses and warrants superseded the old hue and cry which practically fell into disuse. The history of this substitution is curious.

Justices of the peace were first instituted in 1326. Their duties were described in the most general terms. They were by 1 Edw. 3, c. 16, “assigned to keep the peace.” By 34 Edw. 3, c. 1 (1360), they were empowered “to take and arrest all those they may find by indictment or suspicion and put them in prison.” But neither in these nor any other early statute with which I am acquainted is there any provision which enables them directly to take an information as to the commission of a crime and issue a summons or warrant for the apprehension of the suspected person.

The statutes above quoted give them no other authority for the apprehension of offenders than was by the common law inherent in every constable and indeed in every private person. By degrees, however, the practice of issuing warrants came into use. The general authority of the justices in all matters relating to crime and indeed to the whole internal government of the country was firmly established by a great variety of statutes, and it would be natural that their directions should be taken when a crime was committed. It would also be more natural for the justice to authorise the constable to undertake the actual arrest of the offenders than to do it himself, and it might often be convenient, if a suspected person was to be searched for in more directions than one, to give written authority to various persons for the purpose.

This would be specially convenient in the case of a hue and cry. If offenders were to be followed from township to township, the different constables of each being required to join, a written authority from a known public officer like a justice of the peace would be a great convenience. The phrase1 “grant a hue and cry” was apparently in common use in the seventeenth century for granting a warrant, but the granting of warrants was afterwards recognised by2 various statutes, and was finally set upon an3 indisputable statutory foundation in 1848 by 11 & 12 Vic. c. 42, ss. 1, 2, 8, &c. The effect of these provisions is that, where a complaint is made to any justice that any person has committed any indictable offence, the justice may issue a summons to such person, or, if he thinks it necessary, and if the charge is made on oath, and in writing, a warrant for his apprehension.

The power of the justices to issue such process was however disputed for centuries. In 4 Hawkins’s Pleas of the Crown, many authorities upon the subject are referred to, and a very qualified and hesitating conclusion is reached, that “perhaps it is the better opinion at this day that any constable or private person to whom a warrant shall be directed from a justice of the peace to arrest a particular person for felony or any other misdemeanour within his jurisdiction may lawfully execute it, whether the person mentioned in it be in truth guilty or innocent, and whether he were indicted of the same offence or not, and whether any felony were in truth committed or not.” This hesitation is explained by the difference of opinion between Coke and Hale upon the subject. 1 Coke maintained that, before the statutes of Philip and Mary authorising justices to examine witnesses when a person was arrested for felony, “a justice of the peace could not make a warrant to take a man for felony unless he be indicted thereof.” He also maintained that the only warrant which the statutes of Philip and Mary could be taken to authorise by implication (they say nothing at all about warrants) were warrants to constables to see the king’s peace kept upon the occasion of the apprehension of the person suspected by the person having suspicion. Coke goes so far as to maintain that upon such a warrant the constable would not be justified in breaking open a door, “for it is in law the arrest of the party that hath the knowledge or suspicion.”

2 Hale referring to this passage, says that Coke “hath delivered certain tenets which, if they should hold to be law, would much abridge the power of justices of the peace, and give a loose to felons to escape unpunished in most cases.” He then proceeds to refer to the statutes of Edward III., and argues in substance that as at common law a private person might and a constable ought to arrest supposed felons upon suspicion without warrant, the justice might do so à fortiori, in virtue of the general terms of the statutes, and that he might also “issue a warrant, to apprehend a person suspected of felony though the original suspicion be not in himself, but in the party that prays his warrant, and the reason is because he is a competent judge of the probabilities offered to him of such suspicion.” This opinion prevailed in practice long before any necessity arose for inquiring whether it was well founded in theory. That it was highly expedient that justices of the peace should act judicially in issuing warrants admits of no question at all. That it was intended that they should do so when the statutes under which they were first appointed were enacted seems to me unlikely. If such had been the intention of the legislature, it is probable that they would have been authorized and indeed required to proceed in the same manner as coroners, namely, by summoning inquests; but, however this may be, the whole subject is now set on a perfectly plain foundation by the statutes already referred to.

Whilst the duties of private persons, constables, and justices were being gradually ascertained, the law as to the circumstances which would justify an arrest for felony was being elaborated. In an earlier chapter I have given some illustrations of the manner in which all sorts of criminals, and especially all thieves, were regarded in very early times as enemies to be put to death almost like wild animals. It would not be worth while to trace minutely the steps by which this general and crude view of the subject was gradually reduced to the shape in which it now stands. Questions continually arose as to whether a person who had killed another in resisting apprehension was guilty of any offence at all, and, if guilty, whether the offence of which he was guilty amounted to murder or manslaughter. These cases were decided from time to time according to a variety of distinctions suggested by the circumstances of each particular case, a long detail of which may be found in 1 Hale’s Pleas of the Crown which is still the leading authority as to the general principles of the subject, though subsequent decisions and enactments have to some extent modified Hale’s conclusions. 2 The result of his inquiry may be thus stated:—

1. Any person may arrest any person who is actually committing or has actually committed any felony.

2. Any person may arrest any person whom he suspects on reasonable grounds to have committed any felony, if a felony has actually been committed.

3. Any constable may arrest any person whom he suspects on reasonable grounds of having committed any felony, whether in fact any such felony has been committed or not.

The common law did not authorise the arrest of persons guilty or suspected of misdemeanours, except in cases of an actual breach of the peace either by an affray or by violence to an individual. In such cases the arrest had to be made not so much for the purpose of bringing the offender to justice as in order to preserve the peace, and the right to arrest was accordingly limited to cases in which the person to be arrested was taken in the fact or immediately after its commission.

As to the degree of force which may be used in order to arrest a criminal, many questions might be suggested which could be answered only by way of conjecture. Two leading principles, however, may be laid down with some confidence, which are also to be collected from Hale. The first is 1 that if a felon flies or resists those who try to apprehend him, and cannot otherwise be taken, he may lawfully be killed. 2 The second is that a person who makes an arrest because it is his legal duty to do so is more readily justified in using violence for the purpose than a person who is under no such duty. If A kills B, whom he suspects on probable grounds of having committed a felony, though in fact he has not, and whom he cannot otherwise arrest, it appears probable that A is guilty of manslaughter if he is a private person, but if A is a constable following a hue and cry, his act is justifiable because he acts in the discharge of a legal duty.

The common law as to the arrest of prisoners remained substantially unaltered for a great length of time. It is indeed in force at this day with some few modifications, to be stated immediately; but since it reached the state of development just described, changes of the greatest importance have been made in the position of the officers by whom it is put in force. These changes I now proceed to notice.

From the earliest times to our own days, there were two bodies of police in England, namely, the parish and high constables, and the watchmen in cities and boroughs. 1 The parish constables, under various names (borsholders, head-boroughs, tithingmen, chief pledges, &c.), were probably the successors of the old reeves, who with their four men represented the township on all occasions at the beginning of our legal history. In each hundred and in many franchises there were also high constables, or similar officers with other names, who were to the hundred or franchise what the parish constables were to the township. These officers continued to be appointed till within the last few years. The duties of the high constables came to be almost nominal, consisting principally in issuing various notices under different statutes, and they were relieved of them almost entirely in 1844 by the 7 & 8 Vic. c. 33, ss. 7 & 8. The office itself was practically abolished in 1869 by 32 & 33 Vic. c. 47. The parish constables continued to be appointed till 1872, when their appointment was rendered unnecessary (except in some special cases) by 35 & 36 Vic. c. 72; but from the time when the Statute of Winchester and the Assize of Arms became obsolete till the year 1829, they were the only body of men, except the watchmen in cities and boroughs, charged with the duty of apprehending criminals and preventing crimes.

The watchmen in towns were first established by the Statute of Winchester, and the powers of the town magistrates depended originally upon their charters, which were often silent on the subject of watchmen. At a time which I am not able to fix with precision, but which from 2 expressions in the Report of the Municipal Corporation Commission I think must have been in the latter part of the last century, it became customary to pass Local Improvement Acts, by which the management of matters connected with the police of towns was usually vested in a body of trustees or commissioners distinct from the corporation itself. There were great differences in the manner in which these powers were allotted. The following passage occurs in the report already quoted:—3 “In a very great number of towns there are no watchmen or police officers of any kind except the constables, who are unsalaried officers. They are sometimes appointed at a court leet, more frequently by the corporate authorities. The police, and the powers conferred by local acts for paving, lighting, and watching the town, are seldom exclusively in the jurisdiction of the corporation; sometimes they are shared by the corporate authorities and commissioners; sometimes they are vested in commissioners alone.” A striking illustration of the confusion thus produced is given in 1 Colquhoun’s Treatise on the Police of the Metropolis. He observes:—“At present the watchmen destined to guard the lives and property of the inhabitants residing in near 8,000 streets, lanes, courts, and alleys, and about 152,000 houses, composing the whole of the metropolis and its environs, are under the directions of not less than above seventy different trusts, regulated by perhaps double the number of local acts of parliament (varying in many shades from one another), under which these directors, guardians, governors, trustees, or vestries, according to the title they assume, are authorized to act, each attending only to their own particular ward, parish, hamlet, liberty, or precinct.”

Nothing could exceed the inefficiency of the constables and watchmen. Of the constables, Dalton (in the reign of James I.) observes that they “are often absent from their houses, being for the most part husbandmen, and so most of the day in the fields.” The charge of Dogberry shows probably with no great caricature what sort of watchmen Shakespeare was familiar with. In the work already quoted, 2 Colquhoun observes of the watchmen of his time that the pay was so bad that “the managers have no alternative but to accept of such aged and often superannuated men living in their respective districts as may offer their services.” . . . “What can be expected from such watchmen? Aged in general; often feeble; and almost on every occasion half starved from the limited allowance they receive, and without any claim upon the public or the least hope of reward held out even if they performed any meritorious service” . . . “and, above all, making so many parts of an immense system, without any general superintendence, disjointed from the nature of its organisation, it is only a matter of wonder that the protection afforded should be what it really is.”

The defects of this state of things were slightly, but very slightly, mitigated by the institution of a number of small bodies of constables under the direction of particular magistrates. In the year 1796 there were eight such constables at Bow Street (known as Bow-Street runners), and six others at each of seven other police offices in London, making in all fifty constables who gave their whole time to their business. There were also sixty-seven mounted police, forming what was called the horse patrol, who patrolled the roads near London for the suppression of highwaymen. Probably there may have been arrangements more or less resembling these in other large towns. This system continued practically unaltered till the year 1829, although 1 various parliamentary inquiries into the subject took place. In 1829 was passed the first of a series of acts which put the administration of the law as to the apprehension of offenders upon quite a new footing.

The result is that a disciplined force in the nature of a standing army for the suppression of crime and the apprehension of offenders has been provided throughout every part of England by four successive steps, namely, (1) the establishment of the metropolitan police in 1829, (2) that of the borough police in 1836, (3) the partial establishment of the county police by the permissive act of 1839, and (4) its complete establishment by the compulsory act of 1856.

1Preliminary Inquiry

Before the establishment of justices of the peace, cases of public importance were inquired into before the Privy Council, as I have already observed; but there seems to have been no preliminary inquiry at all in regard to common offences, except in the single case of the coroner’s inquest. The justice of the peace was at first little more than a constable on a large scale, whose power even to issue a warrant for the apprehension of suspected persons was acquired by practice, and was not derived from express parliamentary authority. In early times the formal accusation was often, perhaps usually, the first step in the procedure, and the prisoner was not arrested until after he had been indicted. This may still occur under the existing law, but such an occurrence is not usual. In almost every case in the present day a suspected person appears before a justice. Witnesses are then examined, he is either discharged, bailed, or imprisoned till trial, and is then indicted and tried.

The earliest instance that occurs of any sort of preliminary inquiry into crimes with a view to subsequent proceedings is the case of the coroner’s inquest. Coroners, according to 2 Mr. Stubbs, originated in the year 1194, but the first authority of importance about their duties is to be found in Bracton. 3 He gives an account of their duties so full as to imply that in his day their office was comparatively modern. The Statute de Officio Coronatoris (4 Edw. 1, st. 2, ad 1276) is almost a transcript of the passage in Bracton. It gives the coroner’s duty very fully, and is to this day the foundation of the law on the subject. The following are its main provisions:—“A coroner of our Lord the King ought to inquire of these things if he be certified by the King’s bailiffs or other honest men of the country; first he shall go to the places where any be slain, or suddenly dead, or wounded, or where houses are broken, or where treasure is said to be found, and shall forthwith command four of the next towns, or five, or six [i. e. the reeve and four men from each] to appear before him in such a place: when they are come thither the coroner upon the oath of them shall inquire in this manner, that is, to wit, if they know where the person was slain, whether it was in any house, field, bed, tavern, or company, and who were there. Likewise it is to be inquired who were culpable either of the act or of the force, and who were present, either men or women, and of what age soever they be, if they can speak or have any discretion, and how many soever be found culpable in any of the manners aforesaid, they shall be taken and delivered to the sheriff, and shall be committed to the gaol.”

If any one is found guilty of the murder, the coroner is immediately to value his property 1 “as if it were to be immediately sold,” and is to deliver it to the township which is to answer for it to the justices.

The statute contains important provisions as to appeals which I pass over for the present. It is silent as to the course to be taken where houses are broken, though the opening words of the statute refer to such cases. In practice the coroner’s duties have been confined to cases of suspicious death and treasure trove.

The coroner’s duties in respect of inquiries into the cause of suspicious deaths have hardly varied at all from the days of Edward I. to our own, except as regards the method of summoning jurors, and witnesses, and other details. The statute book contains a variety of provisions as to matters of secondary importance connected with inquests. The only ones which need here be mentioned are the statute of Philip and Mary (1 & 2 Phil. & Mary, c. 13, s. 5, 1554), which required a coroner to “put in writing the effect of the evidence given before him being material,” and to bind over the witnesses to appear at the trial of the person accused. This act remained in force till 1826, when it was superseded by 7 Geo. 4, c. 64, s. 4, which provides that every coroner upon any inquisition before him taken whereby any one is indicted for manslaughter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material, and shall have authority to bind over the witnesses to give evidence at the trial, and certify and return the depositions and inquisition to the court before which the person indicted is to be tried. The inquisition of the coroner always was and still is a formal accusation of any person found by it to have committed murder or manslaughter, or to have found and concealed treasure, and a person may be tried upon such an inquisition without any further accusation.

It is singular that, with the law as to coroners in full operation since 1276, no duties of the same sort should have been imposed on the justices of the peace appointed forty-eight years afterwards, in 1324.

Whatever may have been the reason, the fact is certain that no allusion is made to the holding of any sort of preliminary inquiry by justices in any statute passed before the statutes of Philip and Mary already casually referred to. It is probable, however, that from the very earliest times magistrates would make a more or less formal inquiry before they took steps towards the arrest or bail of a suspected person, and it is not at all improbable that the two statutes in question may have given legal sanction to a practice which had grown up without express statutory authority. The statutes were as follows. By the 1 & 2 Phil. & Mary, c. 13 (1554), it is enacted that, when any person arrested for manslaughter or felony, or suspicion of manslaughter or felony, being bailable by the law, is brought before any two justices, they are “to take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof, and the same or as much thereof as shall be material to prove the felony shall be put in writing before they make the bailment.” The examination and bailment are to be certified to the court, and “all such as do declare anything material to prove the said murder” (murder is not mentioned in the earlier part of the act), “manslaughter, offences, or felonies, or to be accessory or accessories to the same as is aforesaid” (it is remarkable that the word “witnesses” is not used) “are to be bound over to appear to give evidence at the court of gaol delivery.” This act was confined to the case of prisoners admitted to bail. It was followed in the next year (1555) by an act (2 & 3 Phil. & Mary, c. 10), which recites that it “does not extend to such prisoners as shall be brought before any justice of peace for manslaughter or felony, and by such justices shall be committed to ward for the suspicion of such manslaughter or felony and not bailed, in which case the examination of such prisoner and of such as shall bring him is as necessary or rather more than where such prisoner shall be let to bail.” The act then goes on to reenact, with respect to cases in which the prisoners are committed, the provisions of the act of the preceding year as to prisoners bailed.1

These statutes continued to be in force till the year 1826, when they were repealed, and re-enacted, and extended to misdemeanour by 7 Geo. 4, c. 64, ss. 2 & 3, and this act was in its turn repealed and re-enacted in a more elaborate form, with some important variations, by 11 & 12 Vic. c. 42 (1848), which is known as Sir John Jervis’s Act.

The important provisions of Sir John Jervis’s Act upon the subject of the preliminary inquiry are these. 2 The witnesses are to be examined in the presence of the accused person, and he is to be at liberty to cross-examine them. The depositions are to be written down and signed by the magistrate and by the witnesses. After all the witnesses have been examined, the justice is to say to the accused, “Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence against you at your trial.” Whatever he says is then taken down and returned with the depositions. 1 The accused person is then to be asked whether he wishes to call any witnesses, and if he does, they must be examined and cross-examined, and their depositions must be taken in the same manner as those of the witnesses for the prosecution. 2 If the evidence is in the opinion of the justices not sufficient to put the accused person on his trial, they are to discharge him. If they think it “raises a strong or probable presumption of” his “guilt,” they are to commit him for trial or admit him to bail. 3 The accused is entitled to copies of the depositions, and his right to be represented by counsel or by a solicitor is incidentally assumed in 4 one section of the act, and is, I believe, never disputed in practice.

A comparison of these provisions with those of the acts of Philip and Mary shows several changes of the utmost importance in one of the most important parts of criminal procedure.

Speaking generally, the difference between the procedure established in the sixteenth century and the procedure of the nineteenth is that under the first the magistrate acts the part of a public prosecutor, whereas under the second he occupies the position of a preliminary judge. This appears in every detail. Under the acts of Philip and Mary the accused person is to be examined. This meant that he was to be fully questioned as to all the circumstances connected with his supposed offence. Under the act of Victoria he can be asked no questions at all, though he is invited to make any statement he pleases, being cautioned that it will be taken down and may be given in evidence against him. Under the statutes of Philip and Mary the examination of the witnesses and the recording of their depositions was intended only for the information of the court. The prisoner had no right to be, and probably never was, present. Under the statute of Victoria the witnesses are to be examined in the prisoner’s presence, and may be cross-examined by him, his counsel, or his attorney. Under the statute of Philip and Mary the depositions were to be returned to the court, but there is evidence to show that the prisoner was not allowed even to see them. Under the statute of Victoria he is entitled to a copy of them. In all these particulars the change is uniformly in the same direction. The object of the earlier statute is to expose and detect a man assumed to be guilty. In the later statute, the object is a full inquiry into his guilt or innocence.

One circumstance must here be mentioned, which makes a distinction of considerable importance between the preliminary criminal procedure of our own country and that of all the countries which used the civil law. I refer to the absence of the use of torture as a means of collecting evidence whilst the prisoner was in custody. It was never recognised as a part of the law of England, and its illegality was made the subject of much boasting by some of the earliest panegyrists of English institutions, and in particular Fortescue, Smith, and Coke. There is, however, proof that it was practised for the purpose of obtaining evidence under Henry VIII. and his three children, and also during the reigns of James I. and Charles I., and that not only in political cases but also in the case of common crimes. The proof of this is given in Jardine’s Reading on Torture, in the appendix to which work there are printed fifty-five letters taken from the Council books, the first dated 5th November, 1551, and the last 21st May, 1640, authorising or otherwise relating to the use or the threat of torture in a variety of instances. In how many cases it may have been used without such authority, and when the practice began, no one can now even guess with any plausibility. Why torture was not employed in this as well as in other countries it is difficult to say. Probably the extremely summary character of our early methods of trial, and the excessive severity of the punishments inflicted, had more to do with the matter than the generalities of Magna Charta or any special humanity of feeling. People who, with no sort of hesitation, hanged a man who could not read, or who being able to read had married a widow, simply because twelve of his neighbours, reporting the village gossip, said he had stolen a dress worth two shillings, cannot be called scrupulously humane. If their conscience had declined to hang him till they had tortured him into a confession capable of being verified independently, they would perhaps have been a little more humane, though this certainly admits of a doubt.1

However this may be, it is still possible to give evidence of the manner in which the old system of preliminary investigations worked. In several of the trials reported under the Stuarts, the justice who had got up the case was the principal witness against the prisoner, and detailed at length the steps which he had taken to apprehend him. The following are instances:—

2 In 1664 Colonel Turner was tried for a burglary, together with his wife and three of his sons. The principal witness was Sir Thomas Aleyn, an alderman of the city. He said: “Mr. Francis Tryon” (the person robbed) “put me on the business to examine it. I went and examined the two servants—the man and the maid. Upon their examination I found they had supped abroad at a dancing-school and had been at cards.” . . . “The man confessed he had been abroad twenty or thirty times at Colonel Turner’s house at supper about a year since. The maid denied they had been there at all; but it is true the man’s saying he supped there (though it was false) was the first occasion of suspicion against Colonel Turner. When I had examined these two, I went to the examination of Turner, where he was all that day, where at night? He told me at several places and taverns, and in bed at nine of the clock, and was called out of his bed; but having myself some suspicion of him, I wished him to withdraw. I told Tryon that I believed, if he was not the thief, he knew where the things were.” Aleyn afterwards charged Turner; “but he denied it, but not as a person of his spirit, which gave me some cause of further suspicion.” He afterwards searched Turner’s house unsuccessfully; but next day received information from one of the other aldermen which enabled him to track Turner into a shop in the Minories, where he found him in possession of money which he believed to be part of the stolen property. He pressed him to account for it, took him to Tryon, managed matters so as to induce him to admit to Tryon, upon Tryon’s engaging not to prosecute, that he knew where the property was, and, after all sorts of manœuvres, got him to cause his wife to give up a number of Tryon’s jewels, and finally committed him and her to Newgate. In short, he acted throughout the part of an exceedingly zealous and by no means scrupulous detective armed with the authority of a magistrate. 1 He detailed in court the whole of his proceedings, which were very expeditious. “Thursday,” said one of the judges, “was the robbery, Friday he was examined, Saturday the money was brought, and that night the jewels were brought and he committed.”

In the famous case of 2 Count Coningsmark and his alleged agents, who were tried for the murder of Mr. Thynne, a similar part was taken by Sir John Reresby, the committing magistrate. Just as he was going to bed, “Mr. Thynne’s gentleman came to me to grant a hue and cry, and soon after the Duke of Monmouth’s page to desire me to come to his master at Mr. Thynne’s lodging, sending his coach to fetch me.” Reresby immediately went to Mr. Thynne’s and granted warrants to search for several suspected persons. At last a Swede was brought before him who confessed that he served a German captain who had had a quarrel with Thynne. Upon information obtained from the Swede, “having searched several houses till six o’clock in the morning, having been in chase almost the whole night, I personally took the captain at the house of a Swedish doctor in Leicester Fields, I going first into the room.” Other suspected persons being afterwards arrested were brought to this house and 3 examined, and finally were committed for trial to the Old Bailey, after being examined on several occasions before the King in Council.

Other cases are mentioned in Reresby’s memoirs in which he took a similar part. 1 For instance, under the date of 6th of July, 1683, after referring to the Rye House Plot, he says: “Six Scotchmen being stopped at Ferry Bridge, by directions from the Secretary, coming from London towards Scotland, and being but slightly examined by the justice of the peace, I caused them to confess much more to me, which I transmitted to the Secretary, as also the examination of another of that nation, who was sent to York Castle, and proved a very dangerous rogue.”

2 In 1681, George Busby was tried at Derby assizes for being a Popish priest. The chief witness against him was Mr. Gilbert, a magistrate of the county, who gave a long account of the manner in which he went on several occasions to the house where he suspected Busby to be. On one occasion he took “a crimson damask vestment, wherein was packed a stole, a maniple of the same (as the Papists call them), an altar-stone, surplice, and a box of wafers, mass books, and divers other Popish things.” All these he took to Derby assizes and showed them to the judge, who directed them to be burnt, but Mr. Gilbert “entreated his favour that I might send them again to the same place for two or three days to make the priest more confident.” He went back accordingly and made a most elaborate search, having a singular series of conversations with people in the house, till at last he took the prisoner in a curiously contrived hiding-hole, near some chimneys, and carried him to Derby, “where after I had taken his examination, I made a mittimus and committed him to Derby gaol.”

I do not think any part of the old procedure operated more harshly upon prisoners than the summary and secret way in which justices of the peace, acting frequently the part of detective officers, took their examinations and committed them for trial. It was a constant and most natural and reasonable topic of complaint by the prisoners who were tried for the Popish Plot that they had been taken without warning, kept close prisoners from the time of their arrest, and kept in ignorance of the evidence against them till the very moment when they were brought into court to be tried.

This is set in a strong light by the provisions of the celebrated act “for regulating of trials in cases of treason and misprision of treason” (7 & 8 Will. 3, c. 3), and those of 1 s. 14 of the Act of Union with Scotland (7 Anne, c. 21). The first of these acts provides that every person accused of high-treason shall have a true copy of the whole indictment delivered to him five days at least before he is tried. The second extends the time for the delivery of the copy of the indictment to ten days before the trial, and enacts that at the same time that the copy of the indictment is delivered a list of the witnesses that shall be produced on the trial for proving the said indictment, and of the jury, mentioning the names, professions, and place of abode of the said witnesses and jurors, be also given.” This was considered as an extraordinary effort of liberality. It proves, in fact, that even at the beginning of the eighteenth century, and after the experience of the state trials held under the Stuarts, it did not occur to the legislature that, if a man is to be tried for his life, he ought to know beforehand what the evidence against him is, and that it did appear to them that to let him know even what were the names of the witnesses was so great a favour that it ought to be reserved for people accused of a crime for which legislators themselves or their friends and connections were likely to be prosecuted. It was a matter of direct personal interest to many members of parliament that trials for political offences should not be grossly unfair, but they were comparatively indifferent as to the fate of people accused of sheep-stealing, or burglary, or murder.

It is probable, however, that the practice of the magistrates varied, and that where there was no particular reason, political or otherwise, for keeping a prisoner in the dark, he was allowed, during the interval between the commitment and trial, to see his friends and make such preparation for his trial as he could. In some remarks 2 by Sir John Hawles (Solicitor-General in the reign of William III.), on the trial of Colledge, the Protestant joiner, it is said that in murder and all other crimes, the prisoner is always permitted to advise with counsel before his trial, and that all persons are allowed in such cases to have free and private access to him, and the usage followed in the political trials of the seventeenth century is strongly reflected upon. This irregular and unsystematic good nature may have been sufficient in practice to prevent the infliction of gross injustice upon persons capable of making their complaints heard, but till the year 1849 prisoners certainly had no legal right to know beforehand what evidence was to be given against them. I will give a single illustration of this, and in giving it, I may observe that it is not so easy as it might be expected to be, to discover accounts of routine proceedings which are not recorded, and do not become the subjects of judicial decision, though they are more important than many others of which this cannot be said.

John Thurtell was tried on the 1 6th and 7th Jan., 1824, and executed on the 9th, for the murder of William Weare, on the 24th Oct., 1823. In the Times newspaper, Oct. 31, 1823, there is a statement that the magistrates’ investigation commenced at 10.30 p. m. “The prisoners were not brought into the room, it being thought best to keep them ignorant of the entire evidence against them, at least for a short time.” Thurtell was then called in and asked many questions by Mr. Noel, the solicitor for the prosecution. Hunt (Thurtell’s accomplice) was afterwards separately examined, which led to his making a full confession. The examinations taken before the magistrates were published in the newspapers, and 2 Mr. Justice J. A. Park made the following observations upon the subject in his charge to the grand jury:—

“These depositions he understood (for he repeated he knew nothing of the fact himself) had already appeared very copiously and even with notes and comments in the public press. Now it appeared to him that the first fault (and he had no doubt it was most unintended, and in noticing it he did not mean to wound the feelings of any individual)—it appeared to him that the first fault originated with the magistrates in allowing any persons to enter into their private apartments for the purpose of taking notes of their proceedings. He held there was a vast difference between the inquisitorial and the judicial power of the magistrates; where the magistrate was acting judicially his conduct was as open to the inspection and judgment of the public as that of himself and that of his learned brothers on the bench; to such publicity he had no objection, for he could wish everything he said as a judge to be heard and fairly canvassed by the public. 1 He knew he erred sometimes, because he was human, and nothing that was human could escape without error. But when a magistrate was acting inquisitorially, when he was taking an inquisition for blood, were these proceedings fit to be known and published to the world? He was bound to investigate and inquire—ought his inquiries and investigations to be conducted in a private or public manner? The statute law of the land prescribed the course to be pursued upon such an occasion for more than 200 years” (269 years). “There was a statute of Philip and Mary which stated that depositions before magistrates should be taken in writing in order that they might be transmitted to the judges who were to try the offence under the commission of oyer and terminer for the county. He appealed to the experience of every gentleman who heard him, and he knew what his own experience as judge had taught him, whether the constant course was not to transmit them to the judge, taking care that the accused should not have an opportunity of seeing them. The prosecutor or his solicitor might have access to them, but not the party accused. For what would be the consequence if the latter had access to them? Why, that he would know everything which was to be produced in evidence against him —an advantage which it was never intended should be extended towards him.”

The first alteration made in this state of things was effected in 1836 by the Prisoners’ Counsel Act (6 & 7 Will. 4, c. 114, s. 4), which provided that all persons under trial should at their trial have a right to inspect all depositions taken against them. In 1849, by 11 & 12 Vic. c. 42, s. 27, it was provided that the accused should be entitled to a copy of the depositions. This change was probably due to a growing sense of the unfairness of the law. Probably, too, the establishment of a regular police force by the steps already detailed may have put the magistrates in a new position in fact before the change was embodied in the statute law. As a regular force was established, first in the towns and then in the country by which charges of crime were investigated, however imperfectly, the magistrates would naturally assume a more and more judicial position. The inquiry before the magistrates is now essentially judicial. It may indeed admit of a doubt whether it is not too judicial, and whether it does not tend to become a separate trial. This tendency was certainly encouraged by the power given by 30 & 31 Vic. c. 35, to the prisoner to call witnesses before the magistrates, and to have them bound over to appear at the trial and to have their expenses allowed. The power was conceded because it was thought hard that a man should be prevented by poverty from producing witnesses. This may have been a good reason for the act, and it has had some collateral advantages, but it has made the law more elaborate than it was.

In the course of the last century a change has taken place in the position of magistrates parallel to and closely connected with the change in the position of constables.

The management of local public business of all kinds, and especially of that part of it which consists in the administration of justice, has happily been at all times, as it still continues to be, a matter of honourable ambition and interest to large numbers of persons well qualified for the purpose by education and social standing. No one, however, can be expected to devote the whole of his time to the duties of a magistrate unless he is paid for it, and in places where the population is very dense, there is so much business that it cannot be efficiently done except by persons who give their whole time to it. Moreover, as the law becomes more and more elaborate, and the standard of judicial proof rises, special knowledge is continually becoming more and more necessary for the proper discharge of the duties of a magistrate.

The force of these considerations has been recognised by slow degrees, and so strong are the attractions of the voluntary system, that up to this time the magistrates are unpaid in nearly all the counties, and in most of the cities and boroughs. But a different system has been introduced in the metropolitan district, and in some other parts of the country, by the following steps.

Throughout a great part of the eighteenth century the business of magistrates in that part of London which was not included in the City was carried on by magistrates who were paid almost entirely by fees. What the fees precisely were, and by what law their exaction was justified, I am not able to say, nor is it worth while to inquire. One or two curious memorials of the state of things which then existed will be worth mentioning by way of introduction to the later legislation on the subject.

Writing in 1754,1 Henry Fielding says of his career as a magistrate: “By composing instead of inflaming the quarrels of porters and beggars (which I blush when I say has not been universally practised), and by refusing to take a shilling from a man who most undoubtedly would not have had another left, I reduced an income of about £500 a year of the dirtiest money upon earth to little more than £300, a considerable proportion of which remained with my clerk; and indeed, if the whole had done so, as it ought, he would be but ill paid for sitting almost sixteen hours in the twenty-four in the most unwholesome as well as nauseous air in the universe, and which hath in his case corrupted a good constitution without contaminating his morals.”

He observes in a footnote: “A predecessor of mine used to boast that he made £1,000 a year in his office, 1 but how he did this (if indeed he did it) is to me a secret. His clerk, now mine, told me I had more business than he had ever known there; I am sure I had as much as any man could do. The truth is, the fees are so very low when any are due, and so much is done for nothing, that, if a single justice of peace had business enough to employ twenty clerks, neither he nor they would get much by their labour. The public will not therefore think I betray a secret when I inform them that I received from the government a yearly pension out of the public service money.”

He afterwards says that he resigned the office to 2 his brother, who had always been his assistant. It was by a rare accident indeed that such a man as Fielding found himself in such a position. Men of genius are exceptions everywhere, but a magistrate ought at least to be, as in these days he is, a gentleman and a man of honour. It was not so in the last century in London. 3 A characteristic account of the “trading justices” was given to the Committee of 1816, by Townsend, a well-known Bow Street runner, who at that time had been in the police thirty-four years or more, i. e. since 1782: “At that time before the Police Bill took place at all, it was a trading business; and there was Justice This and Justice That. Justice Welch in Litchfield Street was a great man in those days, and old Justice Hyde, and Justice Girdler, and Justice Blackborough, a trading justice at Clerkenwell Green, and an old ironmonger. The plan used to be to issue out warrants and take up all the poor devils in the street, and then there was the bailing of them, 2s. 4d., which the magistrates had; and taking up 100 girls, that would make, at 2s. 4d., £11 13s. 4d. They sent none to gaol, the bailing them was so much better.”

These scandals led to the statute, 32 Geo. 3, c. 53, which authorised the establishment of seven public offices in Middlesex and one in Surrey, to each of which three justices were attached. The fees were to be paid to a receiver. No other Middlesex or Surrey justices were to be allowed, under heavy penalties, to take fees within the jurisdiction of the new magistrates. The justices were to be paid by a salary of £400 apiece.

This experiment proved highly successful.

The general result is that the business of holding the preliminary inquiry and committing or bailing the prisoner is, in the metropolitan district and in many large towns and populous districts, in the hands of trained lawyers, who act as preliminary judges; that in municipal boroughs it is in the hands of the mayor, an elected officer, and a number of other justices nominated by the Crown, but unpaid; that in the City of London it is vested by charter in the Mayor and Aldermen; in boroughs not under the Municipal Act in a variety of officers appointed under the provisions of charters and private acts; and that in the rest of the country it is in the hands of the local gentry, appointed by the Crown and exercising their office gratuitously.

Discharge,1Bail or Committal

The next step to the preliminary inquiry held by the magistrates is the discharge, bail, or committal of the suspected person. Little need be said of the law as to the discharge or committal of the suspected person. It is obvious that, as soon as justices of the peace were erected into intermediate judges, charged to decide the question whether there was or was not ground for the detention of a suspected person, they must have acquired, on the one hand, the power of discharge, and, on the other, the power of committal. The whole object of the preliminary inquiry was to lead to the one or the other result, and the history of the preliminary inquiry is in fact the history of the steps which led to the determination of this question in a judicial manner. The law of bail has a separate independent history.

The right to be bailed in certain cases is as old as the law of England itself, and is explicitly recognised by our earliest writers. When the administration of justice was in its infancy, arrest meant imprisonment without preliminary inquiry till the sheriff held his tourn at least, and, in more serious cases, till the arrival of the justices, which might be delayed for years, and it was therefore a matter of the utmost importance to be able to obtain a provisional release from custody. The right is recognised in curt and general terms by Glanville. 1 He says: “Cum quis itaque de morte regis vel de seditione exercitus infamatur aut certus apparet accusator aut non. Si nullus appareat certus accusator sed fama solummodo publica accusat; tunc ab initio salvo accusatus attachiabitur vel per plegios idoneos, vel per carceris inclusionem.” If there is a determinate accuser—is qui accusatur ut prædiximus per plegios salvos et securos solet attachiari aut si plegios non habuerit in carcerem detrudi. In omnibus autem placitis de feloniâ solet accusatus per plegios dimitti præterquam in placito de homicidio ubi ad terrorem aliter statutum est.” 2 Bracton refers to bail in many places, but the most general passage in his treatise De Corona which I have noticed 3 is to the effect that the sheriff ought to exercise a discretion in regard to bailing accused persons, having regard to the importance of the charge, the character of the person, and the gravity of the evidence against him.

These very ancient authorities are somewhat general in their language, but it is still possible to trace the history of the law relating to bail from the beginning of the reign of Edward I. to our own days.

The sheriff was the local representative of the Crown, and in particular he was at the head of all the executive part of the administration of criminal justice. In that capacity he, as I have already shown, arrested and imprisoned suspected persons, and, if he thought proper, admitted them to bail. The discretionary power of the sheriff was ill defined, and led to great abuses, which were dealt with by the Statute of Westminster the First (3 Edw. 1, c. 12, ad 1275). This statute was for 550 years the main foundation of the law of bail. It recites that sheriffs and others “have taken and kept in prison persons detected of felony, and incontinent have let out by replevin such as were not replevisable, and have kept in prison such as were replevisable because they would gain of the one party and grieve the other.” It also recites, that before this time it was not determined which persons “were replevisable and which not, but only those that were taken for the death of man1 or by commandment of the king, or of his justices, or for the forest.” It then proceeds to enact that certain prisoners shall not be replevisable either “by the common writ or without writ;” that others shall be let out by sufficient surety, whereof the sheriff will be answerable, and that without giving ought of their goods.”

The persons not to be bailed (apparently in addition to the four classes referred to in the recital) are (1) prisoners outlawed; (2) men who had abjured the realm (and so admitted their guilt); (3) approvers (who had confessed); (4) such as be taken with the manour; (5) those which have broken the king’s prison; (6) thieves openly defamed and known, and such as are appealed (accused) by approvers; (7) such as are taken for felonious arson; (8) or for false money; (9) or for counterfeiting the king’s seal; (10) or persons excommunicate taken at the request of the bishop; (11) or for manifest offences; (12) or for treason touching the king himself. On the other hand, the persons to be bailed are (1) persons indicted of larceny by inquests taken before sheriffs or bailiffs by their office, i. e. at sheriffs’ tourns or courts leet; (2) or of light suspicion (I suppose wherever indicted); (3) or for petty larceny that amounteth not above the value of 12d. if they were not guilty of some other larceny aforetime; (4) guilty of receipt of felons, or of commandment, or of force, or of aid in felony done (i. e. accessories before or after a felony); (5) guilty of some other trespass for which one ought not to lose life nor member, i. e. misdemeanours in general; (6) a man appealed by a prover after the death of the prover (if he be no common thief nor defamed). The statute does not say distinctly whether persons arrested on suspicion (for instance by hue and cry) were to be bailed or not. It applies to persons 1 “rettes” (which is translated “detected”) of felony, as having been wrongfully let out by the sheriffs. Whether the word implied that the prisoner had been indicted, or whether it meant only in a general sense charged, or whether its use invested the sheriffs with a discretion, I cannot say.

The way in which the later statutes are framed seems to favour the supposition that the justices at all events could in the first instance admit to bail only persons indicted before them in their sessions. However this may have been, the Statute of Westminster determined what offences were bailable or not for five centuries and a-half.

Between 1275 and 1444, however, the sheriffs’ powers had been to a great extent transferred to the justices of the peace in whom the power of admitting prisoners to bail was vested by a series of statutes.

2 These statutes assume that the question who is bailable and who not is settled by the statute of Edward I. though there are some inconsistencies between them, especially as to bail in cases of homicide, to which I need not refer. 3 Numerous statutes, relating to particular offences, were passed in the seventeenth and eighteenth centuries but no general provision on the subject was made till 1826, when the statute of 7 Geo. 4, c. 64, was passed, being one of the first attempts to consolidate the criminal law. It repealed all the statutes above referred to, so far as they relate to bail, and made other provisions on the subject which were in their turn superseded by those of 11 & 12 Vic. c. 42, s. 23, which are now in force.

Such is the history of the existing state of the law as to the bailing by justices of persons accused or suspected of crimes, but in order to make the history complete, it is necessary to mention shortly a branch of law which has become obsolete. In our own time there is practically no reason to fear that justices under a legal duty to admit a man to bail will refuse to do so. It was otherwise with the sheriffs of earlier times. Not only did the vagueness of the law itself leave a wide and ill-defined discretion in their hands, but their power was so great that even in plain cases they were often disposed to set it at defiance. Hence royal writs requiring them to do their duty were necessary; and of these there were several, the most important of which were the writ de homine replegiando, the writ de manucaptione, and the writ de odio et atiâ. These writs issued out of the chancery to the sheriff or coroner. If the first writ was not obeyed, a second writ, which was called an “alias,” was issued, and if that was not obeyed, a third, called a “pluries.” The final remedy was an attachment under which the sheriff or other officer was imprisoned for his disobedience. He might be fined for delaying till an “alias” and “pluries” issued. 1 The writ de homine replegiando was confined (at least after 3 Edw. 1) to cases in which a person was imprisoned before trial for an offence bailable under the Statute of Bail (3 Edw. 1), though it also applied to cases in which a person was unlawfully detained by any one not having legal authority to detain him. In such cases the sheriff might return that the person detained had been “eloigned” (elongatus, carried to a distance where he could not be found), and upon such a return a writ might issue requiring the sheriff to take the captor “in withernam,” that is, to imprison the captor till he produced the person so detained. The writ “de manucaptione” (of mainprise) was appropriated to cases in which a person had been taken on suspicion of felony and had tendered “manucaptors” or “mainpernors” who had been refused. The difference between bail and mainprise is long since obsolete. It is thus described by Hale: 1 “Bail and mainprise are used promiscuously oftentimes for the same thing, and indeed the words import much the same thing, for the former is traditus J. S. and the other is manucaptus per J. S. But yet in a proper and legal sense they differ. 1. Always mainprise is a recognizance in a sum certain, but bail is not always so. 2. He that is delivered per manucaptionem only is out of custody; but he that is bailed is in supposition of law still in custody, and the parties that take him to bail are in law his keepers, and may reseize him to bring him in.” The difference between the use of the two writs is described in 2 Hale, but is to me very obscure.

The writ de odio et3atiâ was confined to cases of homicide, and has an odd history, as it was in itself a singularly clumsy procedure. When a person was imprisoned on a charge of homicide, says4 Bracton, “Fieri solet inquisitio utrum hujusmodi imprisonati pro morte hominis culpabiles essent de morte illâ vel non, et utrum appellati essent odio vel atya.” If the person imprisoned was found guilty, he was not to be admitted to bail. If, however, the inquest said, “quod per odium et atyam, et contineatur causa in inquisitione quo odio vel qua atya diligenter erit causa examinanda, cum sint plures, 5 &c., et ballivi qui non sine causæ cognitione in hujusmodi inquisitionibus prætendunt non causam ut causam, et si sufficiens fuerit causa per ballium dimittatur.” This curious passage seems to imply that even in the infancy of our law questions arose as to malice similar to those which have given so much trouble in our own days. It obviously was not every sort of hatred or malice in the prosecutor which would entitle the prisoner to be bailed. The cause of it was to be considered. It is probable that the “causa” which was to be diligently examined was the evidence of the guilt of the accused man, and that “odium et atya” were mere legal figments by which the presence or absence of reasonable cause of suspicion was obscurely denoted. If a man hated another because he had been seen committing a murder, his hatred would be no reason why he should not prosecute the criminal. If the prosecutor was unable to assign any cause for the prosecution, it would not be unnatural to say that he must hate the person imprisoned. If there was evidence malice was immaterial. If there was no evidence malice was inferred. Hence, the sufficiency of the evidence, being the real point, was inquired into under pretence of inquiring into the malice. But, however this may have been, it is at all events clear that the effect of the writ was to cause a preliminary trial to take place in cases of homicide, the result of which determined whether the accused should be admitted to bail or imprisoned till he was finally tried. If he was found to have been accused by malice, he was admitted to bail on finding twelve sureties, 1 “qui manucapiant habendi eum ad primam assisam et coram justitiariis nostris ad respondendum de morte B.”

The writ de odio et atiâ is referred to in 2 Magna Charta. Foster is of opinion (upon grounds which to me seem just) that it was abolished by 6 Edw. 1, c. 9 (the Statute of Gloucester), in 1278. Coke says in one place that it was abolished by the general words of 28 Edw. 3, c. 9, and revived by 42 Edw. 3, c. 1, in which I think he was mistaken; elsewhere he contradicts this opinion, saying that it was abolished by the Statute of Gloucester. At all events it has been obsolete for centuries.3

These writs, which issued to the sheriff and the coroner, can never have been of the first importance, and must have gone into disuse at an early period (4 though there are a few instances of them in comparatively modern times), as from the earliest times 1 the superior courts and the lord chancellor had the right of issuing the writ of habeas corpus, which answered in a simpler and more direct way all the purposes of the other writs.

The subject of the present chapter is the history of the methods of accusation and trial which have prevailed in England. These are private and public accusations, and trial by battle, by ordeal, by jury, and by the Star Chamber and similar courts of which I have 2 already spoken.

Accusation by a Private Accuser—Appeals

Accusation and trial are so closely connected that for practical purposes they are most conveniently considered together.

Since the Norman Conquest there have been 3 three modes of trial in criminal cases, namely, trial by ordeal, trial by battle, and trial by jury; and there have been also three modes of accusation, namely, appeal or accusation by a private person, indictment or accusation by a grand jury, and informations which are accusations either by the Attorney-General or by the Master of the Crown Office.

The history of these modes of accusation and trial may be conveniently related under one head.

The history of appeals or accusations by a private person and trial by battle go together, as trial by battle was an incident of appeals.

The fact that the private vengeance of the person wronged by a crime was the principal source to which men trusted for the administration of criminal justice in early times is one of the most characteristic circumstances connected with English criminal law, and has had much to do with the development of what may perhaps be regarded as its principal distinctive peculiarity, namely, the degree to which a criminal trial resembles a private litigation. In very early times this showed itself in the circumstance that the law of appeals formed the most, or nearly the most, important and prominent part of the criminal law. An elaborate account of the procedure connected with them fills a large part of the book of Bracton, De Corona, and also a considerable part of the first book of Britton, which relates mainly to the same subject. Each of these authors, but particularly Bracton, goes into the subject with great minuteness, Bracton in particular having a separate chapter upon each different kind of appeal and mixing it up with definitions of the various offences as to which appeals might be brought, forms of writs to sheriffs, and much other matter which has now altogether lost its interest.

The following was the substance of the process according to which appeals might be made in cases of treason, homicide, breach of the peace and wounding (de pace et plagis), mayhem, breaches of the peace by false imprisonment, robbery, arson, and rape. The appeal was made before the coroner or before more coroners than one. The appellor was required to make a minute and strictly formal statement before the coroner as to the nature of the offence, 1 setting forth a great variety of particulars as to the time, place, and circumstances of the offence, in order that the appellee might be enabled to defend himself. This statement was enrolled by the coroner, and the appellor appears to have been held to it strictly in all subsequent stages of the proceedings. The next step was to secure the appearance of the appellee, the process for which was to publish the appeal at five successive county courts. If he did not appear at the fifth the consequence was outlawry. There were elaborate rules as to this, and as to the counter process of inlawry, by which the effect of outlawry was taken off, and the appellee was permitted to defend himself.

If the appellee appeared before the justices he might avail himself of any one of a great variety of pleas or exceptions, which are detailed at great length in Bracton. 1 He states the following as “ista generalis exceptio et prima”:—“Si secta non fuerit bene facta, quia qui appellare voluerit et bene sequi, debet ille, cui injuriatum erit, statim quam cito poterit hutesium levare, et cum hutesio ire ad villas vicinas et propinquiores et ibi manifestare scelera et injurias perpetratas.” There were, however, many other exceptions, one of which is introduced in the middle of the chapter without any special notice, but which must, if it really prevailed, have made appeals comparatively unimportant. 2 “Cadit appellum ubi appellans non loquitur de visu et auditu,” but there is reason to think that if this was the law in Bracton’s time it ceased to be so afterwards.

3 If the appellee did not plead, or not adequately, battle was waged between the parties, but the judges were bound, ex officio, to inquire (it is not clearly stated how) into the circumstances of the case, and not to allow the battle if the case was such that there were against the appellee 4 “presumptiones quæ probationem non admittunt in contrarium, ut si quis cum cultello sanguinolento captus fuerit super mortuum, vel a mortuo fugiendo, vel mortem cognoverit coram aliquibus qui recordum habeant, et hujusmodi tales.” If the appellee was defeated before the stars appeared he was hanged. If he was victorious or defended himself till the stars appeared he was acquitted of the appeal, 5 but inasmuch as the appeal was considered to raise a presumption of his guilt he was to be tried by the country as if he had been indicted.

There are some variations from this in 6 Britton’s Accountof Appeals, which was written about 1291, in the time of Edward I., and no doubt the practice must have varied, but it would not be worth while to go minutely into the subject. 1 In Hawkins’s Pleas of the Crown is to be found an elaborate account of the law as it stood when all but practically obsolete. I may however observe that the plea of want of fresh suit was taken away by the Statute of Gloucester (6 Edw. I., c. 9) in 1278, which allowed the appellor to sue within a year and a day.

The principal points in the history of appeals are as follows:—Appeals in cases of treason were properly (it seems) brought in Parliament. I have already given an account of them and of the manner in which they came to be abolished by statute, 1 Hen. 4, c. 14. That statute applies only to appeals of treason within the realm. Appeals for treasons done out of the realm were not affected by it, but were to be brought before the constable and marshal. 2 Such an appeal actually was brought by Lord Rea against David Ramsey in the year 1631, and combat was ordered upon it, but the king revoked his letters patent to the constable and marshal, and the matter came to an end.

Appeals in cases which were not capital, and in particular appeals for blows, for wounds, and false imprisonment, merged in actions of tort for damages for those causes. Appeals of mayhem lingered a little longer, but became obsolete.

Appeals of robbery and larceny lasted longer, because at Common Law the restitution of property feloniously taken could be awarded only when the thief or robber was convicted on an appeal, but this was altered by 21 Hen. 8, c. 11, which gave a writ of restitution to the true owner upon the conviction of the felon on an indictment.

Appeals of arson seem to have been discontinued at a very early time.

Of appeals of rape it is only necessary to say that they seem to have differed less than other appeals from indictments, and that the offence at which some early statutes on the subject were levelled seems to have included what we should describe as abduction with intent to marry as well as what we describe as rape.

Hence the only appeals which can be said to have had any definite history and to have formed a substantial part of the criminal procedure of the country were appeals of murder. It seems that appeals continued to be the common and established way of prosecuting murder till the end of the fifteenth century. Indeed, they were viewed with so much and, according to our notions, such strange and unmerited favour that in 1482 (22 Edw. 4) they were made the subject of an act of judicial legislation of an almost unexampled kind. 1 FitzHerbert has this note on the subject: “Note that all the justices of each bench say that it is their common opinion that, if a man is indicted of the death of a man, the person indicted shall not be arraigned within the year for the same felony at the king’s suit, and they advise all legal persons (touts hœs de ley) to execute this point as a law without variance, so that the suit of the party may be saved.” This resolution, in which the judges, openly and in the plainest words, assumed legislative power, was apparently acted upon to the great injury of the public, and it was found necessary six years afterwards to repeal it by statute. This appears from the recitals and provisions of 3 Hen. 7, c. 1, to which I have already referred in connection with the Court of Star Chamber. This act recites that “murders and slayings of the king’s subjects do daily increase, that the persons in towns where such murders fall to be done will not attach the murderer” as by law they ought, and that “it is used that within the year and a day after any death or murder had or done the felony should not be determined at the king’s suit for saving of the party’s suit” (the appeal), “wherein the party is oftentimes slow, and also agreed with, and by the end of the year all is forgotten, which is another occasion of murder. And also he that will sue any appeal must sue in proper person, which suit is long and costly that it maketh the party appellant weary to sue.” As a remedy it is provided that indictments for murder shall be tried at once, and that an acquittal on an indictment shall be no bar to an appeal.

The effect of this provision seems to have been that the indictment, which did not involve trial by battle, was usually tried first, and its result was practically conclusive, unless the prisoner was acquitted under circumstances which greatly dissatisfied the parties concerned. This state of things continued till the year 1819, though the resort to an appeal became less and less common as time went on. 1 There are, however, some specimens of appeals of murder reported in the State Trials,2 and an attempt to abolish them by statute was successfully resisted in the years 1768 and 1774. The last appeal of murder ever brought was the case of 3 Ashford v. Thornton. Thornton, being strongly suspected of having murdered Mary Ashford, was tried for that offence and acquitted at Warwick Assizes, and an appeal was brought by her brother. On the 2nd November, 1818, the appellant read his count (the equivalent of an indictment) in the Court of King’s Bench, charging Thornton with his sister’s murder. Thornton then pleaded, “Not guilty, and I am ready to defend the same with my body;” “and thereupon taking his glove off he threw it upon the floor of the court.” The appellant then counter-pleaded that Thornton ought not to be permitted to wage battle, because the circumstances (which are set out in detail in the counter-plea) were such as to show that he was guilty. The appellee replied, setting out circumstances which he regarded as establishing an alibi in his favour. To this there was a demurrer. Upon this issue was joined, and an argument took place, in which 4 all the authorities on the subject are reviewed. The Court decided that the result of the authorities was that the appellee had a right to wage his body, unless circumstances practically inconsistent with his innocence appeared, and that such did not appear from the matter put upon the pleadings to be the case. The result was that no further judgment was given, the appellant not being prepared to do battle. The proceedings ended by Thornton’s arraignment on the appeal, to which he pleaded autrefois acquit.

This proceeding led to the statute 59 Geo. 3, c. 46, by which all appeals in criminal cases were wholly abolished.

It is probable that the commonest and most important form of appeal was that of appeal by an approver. The nature of this proceeding was as follows:—1 If a person accused of any crime, but especially of robbery, chose to plead guilty and to offer to give up his accomplices he was handed over to the coroner, before whom he confessed his guilt and accused a certain number of other persons, and the king might “grant him life and limb if he would deliver the country from a certain number of malefactors either by his body” (i. e. by killing them upon battle waged) “or by the country” (i. e. convicting them before a jury), “or by flight.” If he failed to fulfil the conditions imposed on him he was hanged on his own confession. If the person accused was a man of good character, the conditions of the proceedings were made less favourable to the approver than they otherwise would have been.

If the approver fulfilled the stipulated condition and disposed of the prescribed number of accomplices he had to abjure the realm 2 “in regno remanere non poterit etiam si velit plegios invenire.”

Accusations by Public Report—Ordeals—Trial by Jury

I have already described the manner in which public accusations were made before the Conquest. I now come to the procedure subsequent to the Conquest.

Glanville mentions the subject very slightly. 1 In his short chapter on criminal proceedings he describes the procedure adopted in the case of each particular crime separately, but he seems in all cases to recognize the distinction between an accusation by a definite accuser and an accusation by public report alone.

The silence of Glanville upon this subject is, however, of the less importance, because we have still 2 the text of the Assize of Clarendon (1164) and that of the Assize of Northampton (1176), which constitute the legislation of Henry II. upon this subject. The Assize of Northampton was a republication of the Assize of Clarendon, with some alterations and additions intended to make the system established by it more rigorous. Its provisions are as follows:—“If any one is accused before the justices of our Lord the King of murder or theft or robbery, or of harbouring persons committing those crimes, or of forgery or of arson, by the oath of twelve knights of the hundred, or, if there are no knights, by the oath of twelve free and lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of water, and if he fails let him lose one foot. And at Northampton it was added for greater strictness of justice” (pro rigore justitiæ) “that he shall lose his right hand at the same time with his foot, and abjure the realm, and exile himself from the realm within forty days. And if he is acquitted by the ordeal let him find pledges and remain in the kingdom unless he is accused of murder or other base felony by the body of the country and the lawful knights of the country; but if he is so accused as aforesaid, although he is acquitted by the ordeal of water, nevertheless he must leave the kingdom in forty days and take his chattels with him, subject to the rights of his lords, and he must abjure the kingdom at the mercy of our Lord the King. This assize is to apply from the time of the Assize of Clarendon to the present time, and from the present time as long as our Lord the King pleases in cases of murder and treason and arson, and in all the aforesaid matters, except small thefts and robberies done in the time of war, as of horses and oxen, and less matters.”

The system thus established is simple. The body of the country are the accusers. Their accusation is practically equivalent to a conviction subject to the chance of a favourable termination of the ordeal by water. If the ordeal fails, the accused person 1 loses his foot and his hand. If it succeeds, he is nevertheless to be banished. Accusation therefore was equivalent to banishment at least.

We have still some evidence as to the kind of cases in which the ordeal was inflicted. It is to be found in the Rotuli Curiæ Regis for the reigns of Richard I. and John, said by Sir F. Palgrave to be the oldest judicial records in existence. The following illustrations (amongst others) are published by Sir F. Palgrave in his 2Proofs and Illustrations.

“Roll of the Iter of Stafford in 5 John.—One Elena is suspected by the jurors because she was at the place where Reinalda de Henchenhe was killed, and because she was killed by her help and consent. She denies it. Let her purge herself by the judgment of fire; but as she is ill, let her be respited till she gets well.”

“Andrew of Bureweston is suspected by the jurors of the death of one Hervicus because he fled for his death, therefore let him purge himself by the judgment of water.”

“Roll of the Iter of Wiltshire, 10 Rich. 1.—The jurors say that Radulphus Parmentarius was found dead with his neck broken, and they suspect one Cristiana, who was formerly the wife of Ernaldus de Knabbewell, of his death, because Radulphus sued Cristiana in the ecclesiastical court for breach of a promise of marriage she had made to him, and after the death of her husband Ernaldus, Reginald, a clerk, frequented her and took her away from Radulphus, and Reginald and Cristiana hated Radulphus for suing her, and on account of that hatred the jurors suspect her and the clerk of his death. And the country says it suspects her. Therefore it is considered that the clerk and Cristiana appear on Friday, and that Cristiana purge herself by fire.”

It is impossible to say how long the system of ordeals lasted. In the Mirror there is a list of 155 abuses in the law of which the author complains. The 127th is—“It is an abuse that proofs and purgations be not by the miracle of God where other proof faileth.” 1 The Mirror was written in the reign of Edward I., so that it appears probable that ordeals fell into disuse in the course of the thirteenth century, 2 probably in consequence of the decrees of the Lateran Council of 1216.

The system of accusation which led up to, and to use a modern legal expression “sounded,” in ordeal, was the origin of the grand jury of later times, and of our own days. In my chapter on the History of the Criminal Courts. 3 I have given Bracton’s description of the justices’ eyre, as it existed in the time of Henry III., and have shown that the accusation of suspected persons was only one of its multifarious duties, which were of such magnitude and variety that they may properly be said at that time to have consisted of a general superintendence over all the local details of the executive government. By degrees the old system of convening something like a county parliament, in which every township was represented by its reeve and four men, fell into disuse, and the sheriffs fell into the habit of summoning only a sufficient number of probi et legales homines to form a grand jury and as many petty juries as might be needed for the trial of the civil and criminal cases to be disposed of. The law upon the subject of the number and qualifications of the men to be put upon the panels formerly was, and to some extent still is, singularly vague. In practice at the assizes the grand jury for counties is always composed of the county magistrates, whose names are called over by the officer of the court until twenty-three at most have appeared. The magistrates, however, have no special legal right or duty in the matter. Any “good and lawful men” of the county may serve, no special qualification being required, though there are some disqualifications.1 There is no historical interest in the enactments which have been made upon this subject. The grand jury to the present day accuses every person who is put on his trial before any court of criminal jurisdiction which tries prisoners by a jury.

In the earlier chapters I have given the history of each of the steps in the prosecution of criminals from the first moment when a person is suspected down to the final conclusion of the proceedings. I have, however, intentionally omitted all but the most cursory notice of the actual trial by which the guilt or innocence of the suspected person is determined. In attempting to relate its history I shall adopt a somewhat different method from that which I have hitherto followed. Instead of treating separately the history of the opening speech of the counsel for the Crown, the prisoner’s defence, the examination of the witnesses, and the judge’s summing up, I shall give an account of characteristic trials or groups of trials from the reign of Queen Mary, when the earliest trials of which we have detailed reports took place, till the reign of George III., when the system now in force was established in all its main features.

I.—

1554-1637

The first group of trials which I shall consider are those which took place between 1554 and 1637, the first being the trial of Sir Nicholas Throckmorton, and the last being the proceedings in the Star Chamber which led to its abolition. 1 The report of the trial of Throckmorton is the earliest which is full enough to throw much real light on the procedure which then prevailed. All the trials which took place during this period seem to have followed much the same course, and to have been conducted in the same manner.

The cases of which reports remain were, for the most part, of great political importance, and were accordingly, during the early stages of the procedure, under the charge not of the justices of the peace, but of the Privy Council, and especially of the judges who were members of it, and the law officers of the Crown. The suspected person, having been arrested, was kept in confinement more or less close according to circumstances, and was examined in some cases before the Privy Council, in some cases by the judges, and in some instances by torture. The evidence of other persons, and more especially the evidence of every one who was suspected of being an accomplice, was taken in the same manner. When the case was considered ripe for trial the prisoner was arraigned and the jury sworn, after which the trial began by the speeches of the counsel for the Crown. There were usually several counsel, who, in intricate cases, divided the different parts of the case between them. The prisoner, in nearly every instance, asked, as a favour, that he might not be overpowered by the eloquence of counsel denouncing him in a set speech, but, in consideration of the weakness of his memory, might be allowed to answer separately to the different matters which might be alleged against him. This was usually granted, and the result was, that the trial became a series of excited altercations between the prisoner and the different counsel opposed to him. Every statement of counsel operated as a question to the prisoner, and indeed they were constantly thrown into the form of questions, the prisoner either admitting or denying or explaining what was alleged against him. The result was that, during the period in question, the examination of the prisoner, which is at present scrupulously, and I think even pedantically, avoided, was the very essence of the trial, and his answers regulated the production of the evidence; the whole trial, in fact, was a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other’s arguments with the utmost eagerness and closeness of reasoning. The judges occasionally took part in the discussion; but, in the main, the debate was between the parties. As the argument proceeded the counsel would frequently allege matters which the prisoner denied and called upon them to prove. The proof was usually given by reading depositions, confessions of accomplices, letters, and the like; and this occasioned frequent demands by the prisoner to have his “accusers,” i. e. the witnesses against him, brought before him face to face, though in many cases the prisoners appear to have been satisfied with the depositions. When the matter had been fully inquired into by this searching discussion, the presiding judge “repeated” or summed up to the jury the matters alleged against the prisoner, and the answers given by him; and the jury gave their verdict.

I will give an account of a few of the most remarkable trials as specimens.

Sir N. Throckmorton was tried for high treason in 1554, 1 the charge against him being that he compassed and imagined the Queen’s death, and levied war against her, and adhered to her enemies; the alleged fact on which the charge was founded being a conspiracy with Wyat before his rising.

The trial took place on the 17th April, 1554. 2 The Court sat probably from 8 a. m. till 2, or, at any rate, some time before 3 p. m., as at their rising they adjourned till 3, and the jury gave their verdict at 5. The trial would seem accordingly to have lasted altogether for about six hours. It consisted almost entirely of a verbal duel between Throckmorton and the counsel for the Crown, namely, Serjeant Stanford, who, I suppose, may have been the author of Stanford’s Pleas of the Crown, and Griffin, the Attorney-General. 1 Stanford took by far the most conspicuous part in the proceedings. He began by asking Throckmorton if he had not sent Winter to Wyat in Kent to confer about taking the Tower of London and about Wyat’s rising? Throckmorton said he had told Winter that Wyat wanted to speak to him; but that he said nothing on the matters stated, and challenged Stanford to prove what he alleged. Stanford read Winter’s “confession,” and offered to call Winter to swear to it. Throckmorton said that, for the sake of argument, he would admit the “confession” to be true, and pointed out that certain parts of it were highly favourable to him, and that no part of it showed anything criminal on his part. Some matters he explained in answers to questions from the judges and the Attorney-General.

Stanford then read the confession of Cuthbert Vaughan, which, if true, proved that Throckmorton had given Vaughan much information as to the designs of Wyat’s confederates. The Attorney-General offered to produce Vaughan to swear to his confession. To which Throckmorton replied, “He that hath said and lied will not, being in this case” (i. e., under sentence of death), “stick to swear and lie.” Vaughan, however, was called, swore to the truth of his confession, and, in answer to a question from Throckmorton, said he was only a common acquaintance, and that Wyat had given him a letter of introduction to Throckmorton. Upon this Throckmorton said, “If you have done with Vaughan, my lord, I pray you give me leave to answer.” The Chief Justice replied, “Speak, and be short.” Throckmorton thereupon insisted on the improbability of his placing so much confidence in a common acquaintance, and appealed to Sir R. Southwell (one of the Commissioners by whom he was tried, and before whom, as a Privy Councillor, Vaughan had been examined) to confirm him in saying that Vaughan had varied in his evidence, and in particular that he had vouched a witness who had not been examined and a document which had never been produced. He also insisted that Vaughan ought not to be believed, because his only hope of escape from his own sentence of death was to accuse some one else. The judges hereupon asked if he meant to say that Vaughan’s deposition was totally false. Thereupon Throckmorton admitted that much of it was true; but he denied the specially damaging parts of it, and explained a variety of matters which were specifically pointed out to him. Throckmorton’s own “confession” was then read by Stanford. It admitted in substance that he had discussed with several persons the scheme of the marriage between Queen Mary and Philip II., of which he and they strongly disapproved; but it went no further. A deposition of the Duke of Suffolk was next read, on which Throckmorton remarked that it stated only what the Duke said he had heard from his brother, Lord Thomas Grey, who “neither hath said, can say, nor will say anything against me.” Certain statements, very remotely connected with the subject, made by one Arnold, were then referred to. They mentioned a man named FitzWilliams. Throckmorton, seeing FitzWilliams in court, desired that he might be sworn as a witness. FitzWilliams offered himself to be sworn, but, upon the Attorney-General’s application, the Court refused to hear him, and ordered him out, one of the judges saying, “Peradventure you would not be so ready in a good cause.” Finally it was said that Wyat had “grievously accused” the prisoner, to which Throckmorton replied, “Whatsoever Wyat hath said of me in hope of his life, he unsaid it at his death.” One of the judges owned this, but added that Wyat said that all he had written and confessed to the Council was true. Throckmorton replied, “Master Wyat said not so. That was Master Doctor’s addition.” On this another Commissioner observed that Throckmorton had good intelligence. He answered, “God provided that revelation for me this day, since I came hither; for I have been in close prison these fifty-eight days, where I heard nothing but what the birds told me which did fly over my head,”—an assertion which was probably false. After this Throckmorton objected, that his case was not brought within 25 Edw. 3, as no overt act of compassing the Queen’s death was proved against him; but at the most, procurement by words only of levying war. The judges put various difficulties in his way, refusing to have the statutes read, and, 1 in at least one instance, misconstrucing their language grossly when Throckmorton quoted them. They held however, certainly in accordance with all later authorities, that in treason there are no accessories, all being principals. Nothing can exceed the energy, ingenuity, presence of mind, and vigour of memory which Throckmorton showed, or is reported to have shown, throughout every part of the case, and especially in the legal argument. The Attorney-General is reported to have appealed to the Court for protection. “I pray you, my lords that be the Queen’s Commissioners, suffer not the prisoner to use the Queen’s learned counsel thus. I was never interrupted thus in my life, nor I never knew any thus suffered to talk as this prisoner is suffered. Some of us will come no more to the bar, an we be thus handled.”

The Chief Justice summed up, “and,” says the reporter (who, no doubt, was very favourable to Throckmorton), “either for want of good memory or good will, the prisoner’s answers were in part not recited, whereupon the prisoner craved indifferency, and did help the judge’s old memory with his own recital.” After the summing up, Throckmorton made to the jury a short, earnest, pathetic address, full of texts. He begged the Court to order that no one, and in particular none “of the Queen’s learned counsel be suffered to repair to them.” Whereupon two serjeants were sworn to attend them for that purpose. After a deliberation of two hours the jury acquitted him. They were committed to prison for their verdict, and eight of them (four having submitted and apologised) were brought before the Star Chamber in October (six months and more after the trial), and discharged on the payment by way of fine of £220 apiece, and three, who were not worth so much, of £60 apiece. “This rigour was fatal to Sir John Throckmorton, who was found guilty upon the same evidence on which his brother had been acquitted.”

The next trial to which I will refer is that of 1 the Duke of Norfolk in 1571. He was tried for high treason by imagining the death and deposition of Queen Elizabeth; the overt act being an endeavour to marry Mary, Queen of Scots, knowing that she claimed title to the Crown as against Queen Elizabeth. He was also charged with being concerned in various other treasonable enterprises, which are set out at great length in the indictment. The case was tried before the Court of the Lord High Steward, consisting of twenty-six Lords Triers. The proceedings, though not so animated as those in Throckmorton’s case, followed much the same course. Serjeant Barham conducted the greater part of the prosecution. After opening the case, he urged the Duke to confess that he knew that Mary claimed the crown of England. He admitted that he knew it, “but with circumstance,” that is, subject to explanation. Barham contested the value of the explanation, and many depositions were read, on the bearing of which the Duke on the one side, and Barham on the other, argued, questioned each other, and exchanged explanations at great length. Here is a single specimen:—

“Serjeant: Now for the matter of taking the Tower. Duke: I deny it. Serjeant: Was it not mentioned unto you in the way when you came from Titchfield, by one that came to you and moved you a device between you and another for taking the Tower? Duke: I have confessed that such a motion was made to me, but I never assented to it. Serjeant: You concealed it; and to what end should you have taken the Tower but to have held it against the Queen by force?” &c.

After Barham had finished the part of the case which he was to manage, other charges were enforced in the same way by the Attorney-General, and others again by the Solicitor-General. After which “Mr. Wilbraham, the Attorney of the Wards,” made a speech ending with a burst of patriotic eloquence as to how under circumstances the English would have beaten certain Walloons. On this the reporter observes, “This point Mr. Attorney spoke with such a grace, such cheerfulness of heart and voice, as if he had been ready to be one at the doing of it, like a hearty true Englishman, a good Christian, a good subject, a man enough for his religion, prince, and country.” After this Wilbraham, like his leaders, had an argument at length with the prisoner, who was thus expected to deal successively with no less than four eminent counsel.

Some of the Duke’s observations throw much light on the position of a prisoner in those days. At one point he said, “There is too much for me to answer without book; for my memory is not so good to run through everything, as they do that have their books and notes lying before them. Therefore, I pray you, if I forget to answer to anything, remind me of it.” The Duke, like Throckmorton, argued with much reason that no overt act of compassing the Queen’s death had been proved against him, and quoted some authorities, and in particular Bracton. The Attorney-General was indignant at his audacity. “You complained of your close keeping that you had no books to provide for your answer: it seemeth you have had books and counsel; you allege books, statutes, and Bracton. I am sure the study of such books is not your profession.” The Duke humbly said, “I have been in trouble these two years; think you that in all this time I have not had cause to look for myself?” The Duke was convicted and executed.

Many other trials in Queen Elizabeth’s time were conducted in the same way. I may mention those of 1 Campion and other Jesuits in 1581, those of 2 Abington and others in 1586, that of 3 Lord Arundel in 1589, and a very remarkable one of 4 Udale, for felony in writing the libel called Martin Marprelate in 1590. In Udale’s case there was really no evidence, or hardly anything which could by courtesy be called evidence, except the fact that when examined before the Privy Council he would not deny having written the book; and that when the judge who tried him offered to direct an acquittal if he would only say he did not write it, he refused to do so.

Under James I. the character of the procedure remained unchanged, as may be seen by reference to the cases of 1 Raleigh in 1603, the trials for the 2 Gunpowder Plot in 1606, and those of 3 Overbury’s murderers in 1615. The trials of 4 Lord Somerset and 5 Sir Jervase Elwes are perhaps the best illustrations of the old procedure. Each affords a striking instance of the importance which then attached to the examination of the prisoner. 6 The argument between Lord Somerset and the different counsel and members of the court is exceedingly curious and minute, but its effect cannot be given shortly. Elwes, who was Lieutenant of the Tower, and had delivered the Countess of Somerset’s poisons to Overbury, defended himself on the ground that he did not know what they were, though he admitted that he knew that at one time one of the subordinate agents had thoughts of committing the crime. 7 He defended himself with so much energy and skill that he might perhaps have escaped had not Coke, the presiding judge, cross-examined him as to some expressions in his letters which he was unable to explain, 8 and (which is even more at variance with our modern views) produced against him, after his defence had been made, a “confession” by one Franklin, who had made the confession privately and not even upon oath before Coke himself, at five o’clock that morning, before the court sat. The “confession,” if true, no doubt proved Elwes’s guilt beyond all doubt, but put upon him as it was at the very last moment, when he had no opportunity to inquire about it, or even to cross-examine Franklin without inquiry, it is not surprising that “he knew not what to answer.” If Elwes’s dying speech is rightly reported, he confessed his guilt at the gallows, and, without making any complaint on the subject, ascribed its discovery to Coke. 9 “I displeased God, being transported with over-much pride of my pen; which obsequious quill of mine procured my just overthrow upon the knitting of my Lord Chief Justice’s speech at my arraignment, by reason of two or three passages at the bottom of my letter subscribed with my own hand, which I utterly had forgotten, because I felt not my sin.”

Of all the trials which I have mentioned, however, that of Raleigh is by far the most remarkable. He was accused of treason by conspiring with Lord Cobham to make Arabella Stuart Queen of England through the agency of the Archduke of Austria and his ambassador. The whole evidence against Raleigh was a “confession” or examination of Cobham before the Privy Council, and a letter which he wrote afterwards. Both in the confession and in the letter, Cobham charged Raleigh with this plot by obscure allusions and implications, and with no details. Some few trifling bits of hearsay were proved, I suppose by way of corroboration. For instance,1 Dyer, a pilot, swore that he accidentally met some one in Lisbon, who said that Cobham and Raleigh would cut King James’s throat before he could be crowned. The extreme weakness of the evidence was made up for by the rancorous ferocity of Coke, who reviled and insulted Raleigh in a manner never imitated, so far as I know, before or since in any English court of justice, except perhaps in those in which Jefferies presided.2 The trial is extremely curious, but its great interest in a legal point of view lies in the discussion which occupied most of it on Raleigh’s right to have Cobham called as a witness. He knew that Cobham had retracted his confession, and he had actually received from him a letter saying, “I protest upon my salvation I never practised with Spain by your procurement. God so comfort me in this my affliction as you are a good subject, for anything I know.” For these reasons, and also because as he said he felt sure that Cobham would not venture to state openly and on oath what he had confessed before the Council, Raleigh earnestly pressed for his production. He put his demand partly on two statutes of Edward VI. (1 Edw. 6, c. 12, s. 22, and 5 & 6 Edw. 6, c. 11, s. 11). The first act provides that no one is to be indicted, arraigned, or convicted of treason unless he be accused by two sufficient and lawful witnesses. The second act is to the same effect, but uses the words “lawful accusers,” which 1 Coke himself afterwards interpreted as meaning witnesses, “for other accusers have we none in the common law.” It also provides that the accusers shall, at the time of the arraignment, be brought in person before the accused. Of these statutes Coke declares that they were grounded on the common law, which “herein is grounded upon the law of God, expressed both in the Old and New Testament ‘in ore duorum vel trium testium,’ &c.” 2 In Raleigh’s trial, Coke insinuated that these statutes were no longer in force, and 3 Chief Justice Popham expressly said that they were repealed, adding, “It sufficeth now if there be proofs made either under hand or by testimony of witnesses, or by oaths.” As for having Cobham produced in court, Lord Salisbury (Robert Cecil) said that the commissioners ought to know from the judges whether Raleigh had a right to demand his production, or whether it was matter of favour? Upon this the following remarkable statements were made:—

4 “Lord Chief Justice: This thing cannot be granted, for then a number of treasons should flourish: the answer may be drawn by practice whilst he is in person. Justice Gawdy: The statute you speak of concerning two witnesses in case of treason is found to be inconvenient; therefore by another law it was taken away. Raleigh: The common trial of England is by jury and witnesses. Lord Chief Justice: No, by examination: if three conspire a treason and they all confess it, there is never a witness, yet they are condemned. Justice Warburton: I marvel, Sir Walter, that you, being of such experience and wit, should stand on this point: for so many horse-stealers may escape, if they may not be condemned without witnesses. If one should rush into the king’s privy chamber whilst he is alone and kill the king (which God forbid), and this man be met coming with his sword drawn all bloody, shall not he be condemned to death? My Lord Cobham hath perhaps been laboured in that, and to save you, his old friend, it may be that he will deny all that he hath said?”

The result was that Cobham was not produced, and that Raleigh was convicted and executed on the 29th October, 1618, just fifteen years after his trial.

I now pass from the proceedings before the Courts of Common Law to those which took place before the Star Chamber.

I have already given some account of the history and of the jurisdiction of that court. I will now notice some of the cases which led to its abolition. Its function as a criminal court was to try cases of misdemeanour which were not, or were supposed not to be, sufficiently recognised or punished at the common law. Its procedure was founded upon an information, generally by the Attorney-General, who drew up a charge like a Bill in Chancery against the defendant. The defendant put in his answer also in the form of an Answer in Chancery. He might be examined upon interrogatories, and was liable to be required to take what was called the ex officio oath. This was an oath in use in the Ecclesiastical Courts, by which the person who took it swore to make true answer to all such questions as should be demanded of him. The evidence of witnesses was given upon affidavit. When the case was ripe for hearing it came on for argument much in the way in which cases are argued in the Chancery Division of the High Court. The parties appeared by counsel; the information, answer, and depositions were read and commented upon; and finally each member of the court pronounced his opinion and gave his judgment separately—a point worth noticing because it stands in marked contrast to the practice of the modern Judicial Committee of the Privy Council, which in a certain sense represents the Star Chamber.

The Star Chamber proceedings reported in the State Trials leave a singular impression on my mind. As far as the mere management in court of the different cases went, it cannot be denied that they are for the most part calm and dignified, though the strange taste and violent passions of the time give them occasionally a grotesque appearance; but the severity of the “censures” or sentences is in these days astonishing. A few instances may be mentioned. In 1615 1 Sir John Hollis and Sir John Wentworth were prosecuted “for traducing the public justice.” Weston had been hanged for the murder of Sir Thomas Overbury, to whom he had administered poison. Wentworth and Hollis went to Weston’s execution, where Wentworth asked Weston whether he really did poison Overbury, and pressed him to answer, “saying he desired to know, that he might pray with him.” Hollis “was not so much of a questioner,” but, “like a kind of confessor, wished him to discharge his conscience and satisfy the world.” Hollis moreover, when the jury gave their verdict, said, “If he were on the jury, he would doubt what to do.” It is difficult to see how this could be regarded as in any sense criminal conduct; but it seems to have been thought that Wentworth’s question and Hollis’s remarks remotely implied that Weston’s guilt might perhaps be not absolutely certain, notwithstanding his conviction. Lord Bacon (then Attorney-General) developed this view of the subject at length, and with characteristic grace, calmness, and power. The defendants excused themselves in a polite manner; Sir John Hollis observing that “Mr. Attorney had so well applied his charge against him that, though he carried the seal of a good conscience with him, he would almost make him believe he was guilty.” As for what he had said to Weston, he was there “carried with a general desire which he had to be at the execution as he had done in many like cases before.” It was a common thing on such occasions to question the person about to be executed, and he had only followed his usual practice. Coke pronounced sentence. He referred to Abimelech, to cases of poisoning in the Year-books, as to which he remarked that “from Edward III. to 22 Henry VII. (which was a great lump of time) no mention is made of poisoning any man.” As to going to executions, he said that “ever since he was a scholar and had read those verses of 1 Ovid, Trist. iii. 5, ‘Ut lupus et vulpes instant morientibus et quæcumque minor nobilitate fera est,’ he did never like it, and he did marvel much at the use of Sir John,” to whom he applied, “with a little alteration,” Virgil’s line, “Et quæ tanta fuit Tyburn tibi causa videndi.” Finally by way of “censure” Sir John Hollis was fined £1,000 and Sir John Wentworth 1,000 marks, and each was imprisoned a year in the Tower.

2 In 1632 Mr. Sherfield was prosecuted before the Star Chamber for breaking a glass window in St. Edmond’s Church in Salisbury. He admitted that he had done so, but justified his conduct on the ground that the window “was not a true representation of the Creation; for that it contained divers forms of little old men in blue and red coats, and naked in the head, feet, and hands, for the picture of God the Father, and the seventh day he therein hath represented the like image of God sitting down taking his rest, whereas the defendant conceiveth this to be false.” The window contained many other inaccuracies. Eve, for instance, was represented as being taken whole out of Adam’s side, whereas in fact a rib was taken and made into Eve. Besides, as to the days, “he placed them preposterously, the fourth before the third, and that to be done on the fifth, which was done on the sixth day.” For these reasons the defendant made eleven holes in the window with his pikestaff, and, said one of the witnesses, “the staff broke and he fell down into the seat and lay there a quarter of an hour groaning.” For this, after a long and decorous discussion, Sherfield was fined £500.

3 Mr. Richard Chambers, a merchant of London, who had a dispute with some under officers at the Custom House, was summoned before the Privy Council at Hampton Court, where he said to the Council, “that the merchants are in no part of the world so screwed and wrung as in England; that in Turkey they have more encouragement.” For this little bit of grumbling, directed solely against under officers, he was fined £2,000, and required to make a written submission or apology, which he refused to do. For his refusal he was imprisoned for six years.

These proceedings were sufficiently severe, but those which made the Court utterly intolerable and brought about its abolition were the sentences upon libellers, and the proceedings connected with them. The best known of these may be shortly noticed.

1 In 1632 William Prynne was informed against for his book called Histrio Mastix. Prynne’s answer was, amongst other things, that his book had been licensed, and one of the counsel, Mr. Holbourn, apologised, not without good cause, for his style. 2 “For the manner of his writing he is heartily sorry, that his style is so bitter, and his imputations so unlimited and general.” The book certainly was a bitter and outrageous performance, and it is probable that a moderate sentence upon the author would, at the time, have been approved. His trial was, like the other Star Chamber proceedings, perfectly decent and quiet, but the sentence can be described only as monstrous. He was sentenced to be disbarred and deprived of his university degrees; to stand twice in the pillory, and to have one ear cut off each time; to be fined £5,000; and to be perpetually imprisoned, without books, pen, ink, or paper. One of the Court, 3 Lord Dorset, was as brutal in his judgment as Prynne in his book. “I should be loth he should escape with his ears, for he may get a periwig which he now so much inveighs against, and so hide them, or force his conscience to make use of his unlovely love-locks on both sides; therefore I would have him branded in the forehead, slit in the nose, and his ears cropt too.”

Five years after this, in 1637, Prynne, Bastwick, and Burton, were tried for libel, and were all sentenced to the same punishment as Prynne had received in 1632, Prynne being branded on the cheeks instead of losing his ears.

The procedure in this case appears to me to have been as harsh as the sentence was severe, though I do not think it has been so much noticed. In cases of treason and felony no counsel were allowed to prisoners in the sixteenth and seventeenth centuries, indeed in cases of felony they were not allowed to address the jury for the prisoner till 1837. The rule was otherwise in misdemeanours, and by the practice of the Star Chamber defendants were not only allowed counsel, but were required to get their answers signed by counsel. The effect of this rule, and probably its object was, that no defence could be put before the Court which counsel would not take the responsibility of signing—a responsibility which, at that time, was extremely serious. If counsel would not sign the defendant’s answer he was taken to have confessed the information. Prynne’s answer was of such a character that one of the counsel assigned to him refused to sign it at all, and the other did not sign it till after the proper time. Bastwick could get no one to sign his answer. Burton’s answer was signed by counsel, but was set aside as impertinent. Upon the whole, the case was taken to be admitted by all the three, and judgment was passed on them accordingly. There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence. It ought, however, in fairness to be admitted that the course taken made no practical difference to the defendants, as they neither could, nor did they wish to deny that they were the authors of the books imputed to them, and the books spoke for themselves. They were asked at the final hearing whether they pleaded guilty or not guilty, although the Court took the matter of the information as admitted. I suppose this was to give them an opportunity of disavowing the publication, if they were so minded, but this is only a conjecture.

The last Star Chamber case to which I will refer is noticeable, amongst other reasons, because it illustrates the intense unpopularity of one of the principal points in the procedure, both of the Star Chamber and of the Ecclesiastical Courts, from which the Star Chamber probably borrowed it. This was what was known as the ex officio oath, already mentioned. In the Common Law Courts 1 this oath is still in constant use without objection, in interlocutory proceedings, but in the old Ecclesiastical Courts and in the Star Chamber it was understood to be, and was, used as an oath to speak the truth on the matters objected against the defendant—an oath, in short, to accuse oneself. It was vehemently contended by those who found themselves pressed by this oath that it was against the law of God, and the law of nature, and that the maxim “nemo tenetur prodere seipsum” was agreeable to the law of God, and part of the law of nature. In this, I think, as in most other discussions of the kind, the real truth was that those who disliked the oath had usually done the things of which they were accused, and which they regarded as meritorious actions, though their judges regarded them as crimes. People always protest with passionate eagerness against being deprived of technical defences against what they regard as bad laws, and such complaints often give a spurious value to technicalities when the cruelty of the laws against which they have afforded protection has come to be commonly admitted.

Be this as it may, the extreme unpopularity of the ex officio oath is set in a clear light by the case of John Lilburn. Lilburn wrote an account of the proceedings against him which is probably substantially accurate and is extremely lively and circumstantial. 2 He was committed to the Gatehouse “for sending of factious and seditious libels out of Holland into England.” He was afterwards ordered by the Privy Council to be examined before the Attorney-General, Sir John Banks. He was accordingly taken to the Attorney-General’s chambers, 3 “and was referred to be examined by Mr. Cockshey his chief clerk; and at our first meeting together he did kindly entreat me, and made me sit down by him, put on my hat, and began with me after this manner. Mr. Lilburn, what is your Christian name?” A number of questions followed, gradually leading up to the matter complained of. Lilburn answered a good many of them, but at last refused to go further, saying, “I know it is warrantable by the law of God, and I think by the law of the land, that I may stand on my just defence, and not answer your interrogatories, and that my accusers ought to be brought face to face, to justify what they accuse me of.” He was afterwards asked by the Attorney-General to sign his examination, but refused to do so, though he offered to write an answer of his own to what might be alleged against him. 1 Some days after he was taken to the Star Chamber office that he might enter his appearance. He replied that he had been served with no subpœna, and that no bill had been drawn against him. “One of the clerks said I must first be examined and then Sir John” (the Attorney-General) “would make the bill.” Lilburn thought the object of the examination was to get materials for a bill, and accordingly when the head of the office tendered him the oath “that you shall make true answer to all things that are asked you,” he refused to do so, saying, first, “I am but a young man and do not well know what belongs to the nature of an oath.” Afterwards he said he was not satisfied of the lawfulness of that oath, and after much dispute absolutely refused to take it. After about a fortnight’s delay he was brought before the Star Chamber, where the oath was again tendered to him and he again refused it on the ground that it was an oath of inquiry for the lawfulness of which he had no warrant. 2 Lilburn had a fellow prisoner, “old Mr. Wharton,” said in one part of the case to have been eighty-five years of age. When asked to take the oath Wharton refused, and began to tell them of the bishops’ cruelty towards him, and that they had “had him in five several prisons within these two years for refusing the oath.” On the following day they were brought up again. Lilburn declared, on his word and at length, that the charges against him were entirely false, and that the books objected to were imported by another person with whom he had no connection. 3 “Then,” said the Lord Keeper, “thou art a mad fellow, seeing things are thus that thou wilt not take the oath and answer truly.” Lilburn repeated that it was an oath of inquiry and that he found no warrant in the word of God for an oath of inquiry. “When I named the word of God the Court began to laugh as though they had had nothing to do with it.” Failing with Lilburn, the Court asked Wharton whether he would take the oath, whereupon getting leave to speak, “he began to thunder it out against the bishops, and told them they required three oaths of the king’s subjects, namely, the oath of church-wardenship, and the oath of canonical obedience, and the oath ex officio, which, said he, are all against the law of the land, and by which they deceive and perjure thousands of the king’s subjects in a year.” “But the Lords, wondering to hear the old man talk after this manner, commanded him to hold his peace, and to answer them whether he would take the oath or no. To which he replied, and desired them to let him talk a little, and he would tell them by and by. At which all the Court burst out laughing; but they would not let him go on, but commanded silence (which if they would have let him proceed, he would have so peppered the bishops as they never were in their lives in an open Court of judicature).” As both absolutely refused to take the oath they were each sentenced to stand in the pillory, and to pay a fine of £500, and Lilburn to be whipped from the Fleet to the pillory, which stood between Westminster Hall Gate and the Star Chamber. Lilburn was whipped accordingly, receiving, it was said, upwards of 500 lashes, and was made to stand in the pillory for two hours after his whipping. In May, 1641, the House of Commons resolved “that the sentence of the Star Chamber given against John Lilburn is illegal, and against the liberty of the subject: and also bloody, cruel, barbarous, and tyrannical.”

It is difficult to say how far the cases reported in the State Trials can be regarded as fair specimens of the common course of the administration of criminal justice, as it is not unnatural to suppose that in cases in which the Government were directly interested prisoners might be treated more harshly than in common cases. The only report of a trial for a common offence given in the State Trials before the year 1640, is that of an appeal of murder tried at the King’s Bench bar, in the 4th Charles I. (1628). The report is published in 14 St. Tr. 1342, from the papers of Serjeant Maynard. The evidence given seems to have been, with one strange exception, similar to the evidence which would be given in the present day on a trial for murder. It was proved that one Jane Norkott was found lying dead in her bed in a composed manner, the bed clothes not disturbed, and her child in bed. Her throat was cut and her neck broken. There was no blood on the bed, but much at two distinct and distant places on the floor, and a bloody knife was found sticking in the floor, the point towards the bed and the haft from the bed. These facts clearly proved that the case was one of murder, and not (as was supposed at first) of suicide. Mary Norkott, the mother of the deceased, Agnes Okeman, her sister, and Okeman, her brother-in-law, deposed at the inquest that they slept in an outer room through which her room was entered, and that no stranger came in in the night. Upon this singularly weak evidence they were suspected of murder, though a coroner’s jury at first returned a verdict of felo de se. After thirty days the body was disinterred and a second inquest held. Probably (though that is not stated) they found a verdict of murder against the defendants, who were tried at Hertford assizes and acquitted. The judge, being dissatisfied with the verdict, recommended that the infant child should be made plaintiff in an appeal of murder against its father, grandmother, aunt, and uncle, and the appeal was tried accordingly. On the trial it was sworn that when the body was disinterred at the second inquest “the four defendants were required, each of them, to touch the dead body. Okeman’s wife fell upon her knees and prayed God to show tokens of her innocency. The appellant” (sic, but as the appellant was a baby this seems strange; probably it should be “appellees”) “did touch the dead body, whereupon the brow of the dead, which before was of a livid and carrion colour, began to have a dew or gentle sweat arise on it, which increased by degrees till the sweat ran down in drops on the face, the brow turned to a lively and fresh colour, and the deceased opened one of her eyes and shut it again; and this opening the eye was done three several times; she likewise thrust out the ring or marriage finger three times and pulled it in again, and the finger dropped blood on the grass.” These occurrences, which I believe (some allowance being made for exaggeration and inaccurate observation) are not unnatural effects of decomposition, seem to have excited the greatest astonishment in Court, but Serjeant Maynard does not say how the judge dealt with them in his charge or what was the result of the proceedings. If they are regarded as miraculous, they have the defect of being wholly uncertain in their meaning, for it is impossible to say whether they attested the innocence of Elizabeth Okeman or her guilt, or that of any, and if so of which, of the other persons concerned.

In the absence of reports of particular trials I may refer to a striking description of trials in general by Sir Thomas Smith, Secretary of State to Queen Elizabeth, which occurs in his 1Commonwealth of England, written during the author’s embassy to France, with special reference to the difference between the institutions of France and England, and the Common and the Civil Law.

The following is his description of a trial at the Assizes: Having described the preliminary proceedings and the fixing of the circuits he describes the Courts themselves. “In the town house or in some open common place there is a tribunal or place of judgment made aloft. Upon the highest bench there sit the judges which be sent down in commission in the midst. Next them on each side the justices of the peace according to their degree. On a lower bench before them the rest of the justices of the peace and some other gentlemen or their clerks. Before these judges and justices there is a table set beneath, at which sitteth the custos rotulorum, or keeper of the writs, the escheator, the under sheriff, and such clerks as do write. At the end of that table there is a bar made with a space for the inquests, and twelve men to come in when they are called, behind that space another bar, and there stand the prisoners which be brought thither by the gaoler all chained together.” The introductory proceedings, including the various proclamations and the taking of the pleas, the challenges and swearing of the jury, are next fully described. They are identically the same as those which now obtain, the very words of the proclamations having remained almost unchanged. The prisoner having pleaded not guilty, and the jury having been sworn, the crier “saith aloud, If any can give evidence or can say anything against the prisoner, let him come now, for he standeth upon his deliverance. If no man come in, then the judge asketh who sent him to prison, who is commonly one of the justices of the peace. He, if he be there, delivereth up the examination which he took of him” (under the Acts of Philip and Mary), “and underneath the names of those whom he hath bound to give evidence: although the malefactor hath confessed the crime to the justice of the peace, and that it appear by his hand and confirmation, the twelve men will acquit the prisoner, but they which should give evidence pay their recognizances. Howbeit this doth seldom chance except it be in small matters and where the justice of the peace who sent the prisoner to the gaol is away.” This curious passage gives a different impression from the reports of cases in the State Trials. The juries in the cases I have referred to showed little inclination to acquit prisoners who had confessed or had been accused by the confessions of others; but Sir Thomas Smith’s account clearly implies that, if the witnesses did not appear, the examination of the prisoner was read, and he probably may (though this is not stated) have been further examined upon it. In such cases as Smith refers to, in the present day the judge would direct an acquittal.

To resume Smith’s account, “If they which be bound to give evidence come in, first is read the examination which the justice of the peace doth give in” (it is likely that the prisoner would be questioned upon it, but this is not mentioned), “then is heard (if he be there) the man robbed, what he can say, being first sworn to say the truth, and after the constable, and as many as were at the apprehension of the malefactors, and so many as can say anything being sworn one after another to say truth. These be set in such a place as they may see the judges and the justices, the inquest and the prisoner, and hear them and be heard of them all. The judge, after they be sworn, asketh first the party robbed if he know the prisoner, and biddeth him look upon him: he saith Yea. The prisoner sometimes saith Nay. The party pursuyvant giveth good ensignes, verbi gratiâ, I know thee well enough; thou robbedst me in such a place, thou beatedst me, thou tookest my horse from me, and my purse; thou hadst then such a coat, and such a man in thy company. The thief will say No, and so they stand a while in altercation. Then he” (I suppose the prosecutor) “telleth all that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can give any indices or tokens, which we call in our language evidence against the malefactor. When the judge hath heard them say enough, he asketh if they can say any more. If they say No, then he turneth his speech to the inquest. Goodmen (saith he), ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye to your oath and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said. Thus sometimes with one inquest is passed to the number of two or three prisoners. For, if they should be charged with more, the inquest will say, My lord, we pray you charge us with no more; it is enough for our memory. Many times they are charged with but one or two.” The jury then retire to consider their verdicts, and are confined “with neither bread, drink, meat, nor fire. If they be in doubt of anything that is said, or would hear again some of them that gave evidence, to interrogate them more at full, or if any that can give evidence come late, it is permitted that any that is sworn to say the truth may be interrogated of them to inform their consciences.” Finally the verdict is returned; the prisoner, if found guilty, and his offence is clergyable, prays his clergy. If he can read he gets it. If not, or if his offence is not clergyable, the judge passes sentence: “Law is thou shalt return to the place from whence thou camest; from thence thou shalt go to the place of execution. There thou shalt hang till thou be dead. Then he saith to the sheriff, Sheriff, do execution.”

Several observations arise on this striking passage. Smith makes no mention of counsel; he says nothing explicitly of the prisoner’s defence, and he seems to attach little or no importance to the judge’s summing up. On the other hand, the whole account assumes that the common course was to call witnesses face to face, though 1 expressions occur which imply that depositions might be used instead; on what conditions is not stated. From the account given of the reading of the prisoner’s examination as a first step, and of the “altercation” between him and the prosecutor, I should infer that the prisoner’s defence was made, not in a set speech as at present, but by fragments in the way of argument and “altercation” with the prosecutor and the other witnesses. This would agree with and illustrate the reports in the State Trials already referred to. Upon this view the only difference between the trials which are fully reported and the routine described by Smith would be that in the more important cases the examination of the prisoner would be conducted by counsel, whereas in less important cases it would usually consist of a debate between the prisoner and the prosecutor and the other witnesses, the judge of course interfering as he saw fit.

Upon the whole it may be said that the criminal trials of the century preceding the civil war differed from those of our own day in the following important particulars:—

(1) The prisoner was kept in confinement more or less secret till his trial, and could not prepare for his defence. He was examined, and his examination was taken down.

(2) He had no notice beforehand of the evidence against him, and was compelled to defend himself as well as he could when the evidence, written or oral, was produced on his trial. He had no counsel either before or at the trial.

(3) At the trial there were no rules of evidence, as we understand the expression. The witnesses were not necessarily (to say the very least) confronted with the prisoner, nor were the originals of documents required to be produced.

(4) The confessions of accomplices were not only admitted against each other, but were regarded as specially cogent evidence.

(5) It does not appear that the prisoner was allowed to call witnesses on his own behalf; but it matters little whether he was or not; as he had no means of ascertaining what evidence they would give, or of procuring their attendance. In later times they were not examined on oath, if they were called.

This last rule appears to us so extraordinary, that it is necessary to explain how it came about.

1 Barrington, in his Observations on the Statutes, says, “The denying a felon to make his defence by advocate, and the not permitting his witnesses to be examined upon oath till the late statute, seem to have been borrowed from the Roman law, which is indeed the more severe upon the criminal as he is not permitted to produce any witnesses in his favour; and Montesquieu gives this as a reason why perjury is a capital offence in France, though not in England.” 2 Barrington quotes from the journals of the House of Commons, Thursday, June 4, 1607, a paper “delivered to and read by Mr. Speaker, declaring the manner of proceeding in Scotland for point of testimony upon trials in criminal cases, for satisfaction of some doubts.

“In criminal causes by the civil law there is no jury called upon life and death, and therefore the judges admit witnesses in favour of the pursuer, but none in favour of the defender, because in all cases (either criminal or civil) no man can be admitted to prove the contrary of his own accusation, for it is his part who relevantly alleges the same to prove it. As, if A accused B for breaking his stable and stealing his horse such an hour of the night, the pursuer may be well admitted to prove what he hath alleged; but the defendant can never be admitted to prove that he was alibi at that time, for that would be contrary to the libel, and therefore most unformal. In Scotland we are not governed by the civil law, but ordanes (ordinaries probably), and juries are to pass upon life and death much the same as here, which jury, as it comes from the neighbourhood where the fact was committed, are presumed to know much of their own knowledge, and therefore they are not bound to examine any witnesses except they choose to do it on the part of the pursuer; but this is not lawful to be done in favour of the defendant. It is of truth the judge may either privately beforehand examine ex officio such witnesses as the party pursuer will offer to him; and then, when the jury is publicly called, he will cause these depositions to be read, and likewise examine any witnesses which the pursuer shall then desire, but never in favour of the defender.”

I have quoted these passages at length, not only on account of their curiosity, but because they seem to me to throw much light on the spirit of the old criminal procedure. The true reason for the rule as to restricting the defence is obvious. It increased the power of the prosecution, and saved trouble to those who conducted it. It was in complete harmony with the other points in which the trials of the sixteenth century formed a contrast to those of our own day. In the present day the rule that a man is presumed to be innocent till he is proved to be guilty is carried out in all its consequences. The plea of not guilty puts everything in issue, and the prosecutor has to prove everything that he alleges from the very beginning. If it be asked why an accused person is presumed to be innocent, I think the true answer is, not that the presumption is probably true, but that society in the present day is so much stronger than the individual, and is capable of inflicting so very much more harm on the individual than the individual as a rule can inflict upon society, that it can afford to be generous. It is, however, a question of degree, varying according to time and place, how far this generosity can or ought to be carried. Particular cases may well be imagined in which guilt, instead of innocence, would be presumed. The mere fact that a man is present amongst mutineers or rebels would often be sufficient, even in our own days, to cost him his life if he could not prove that he was innocent.

In judging of the trials of the period in question we must remember that there was no standing army, and no organised police on which the Government could rely; that the maintenance of the public peace depended mainly on the life of the sovereign for the time being, and that the question between one ruler and another was a question on which the most momentous issues, religious, political, and social, depended. In such a state of things it was not unnatural to act on a different view as to the presumptions to be made as to guilt and innocence from that which guides our own proceedings.

Suspected people, after all, are generally more or less guilty, and though it may be generous, for the reason already given, to act upon the opposite presumption, I do not see why a Government not strong enough to be generous should shut their eyes to real probabilities in favour of a fiction. This principle must be admitted, and the procedure of the period in question must be judged in the light of it, before it can be fairly criticised. I think such criticism would not be wholly unfavourable to it. The trials were short and sharp; they were directed to the very point at issue, and, whatever disadvantages the prisoner lay under, he was allowed to say whatever he pleased; his attention was pointedly called to every part of the case against him, and if he had a real answer to make he had the opportunity of bringing it out effectively and in detail. It was but seldom that he was abused or insulted.

The general impression left on my mind by reading the trials is that, harsh as they appear to us in many ways, the real point at issue was usually presented to the jury not unfairly. In Raleigh’s case, for instance, the substantial question was, Do you, the jury, believe that Raleigh was guilty because Cobham said so at one time, although it is admitted that he afterwards retracted what he said? In our days such evidence would not be allowed to go before a jury, and, if it were, no jury would act upon it; 1 but it is quite a different question whether, in fact, Cobham did let out the truth in what he said against Raleigh.

It is very questionable to me whether Throckmorton was not privy to Wyat’s rising, and there can be no reasonable doubt that the Duke of Norfolk intrigued with Queen Mary in a manner which meant no good to Elizabeth, whether his conduct amounted technically to high treason or not. In a word, admit that the criminal law is to be regarded as the weapon by which a Government not very firmly established is to defend its existence, admit also that a person generally suspected of being disaffected probably is disaffected, and that, even if he has not done the particular matters imputed to him, he has probably done something else of the same sort, finally remember that the political contests of the sixteenth and seventeenth centuries turned upon the bitterest and the most deep-seated differences which exist amongst men, and that they appealed to the strongest of human passions, and the inference will be that the trials to which I have referred were conducted on intelligible principles, and that, the principles being conceded, their application was not unfair, though the punishments inflicted were no doubt extremely severe.

These trials should be compared not to the English trials of later times, but to those which still take place under the Continental system. It will appear hereafter that the criminal procedure of modern France cannot be said to contrast advantageously with that of the Tudors and early Stuarts, so far as concerns the interests of the accused, and the degree in which the presumption of his innocence is acted upon in practice.

Of course our modern English criminal procedure is greatly superior to that of our ancestors, but there is a common tendency to depreciate past times instead of trying to understand them. The consideration and humanity of our modern criminal courts for accused persons, are due in a great degree to the fact that the whole framework of society, and especially the Government in its various aspects—legislative, executive, and judicial, is now immeasurably stronger than it ever was before, and that it is accordingly possible to adjust the respective interests of the community and of individuals with an elaborate care which was formerly impracticable.

The part of the early criminal procedure which seems to me to have borne most hardly on the accused was the secrecy of the preliminary investigation, and the fact that practically the accused person was prevented from preparing for his defence and from calling witnesses. I am by no means sure that the practice of examining the prisoner pointedly and minutely at his trial was not an advantage to him if he was innocent; and I doubt whether the absence of all rules of evidence, and the habit of reading depositions instead of having the witnesses produced in court, made so much difference as our modern notions would lead us to believe. The one great essential condition of a fair trial is that the accused person should know what is alleged against him, and have a full opportunity of answering either by his own explanations or by calling witnesses, and for this it is necessary that he should have a proper time between the trial and the preparation of the evidence for the prosecution. The management of the trial itself is really a matter of less importance. It will appear, as we go on, that the trial was improved first, and the preliminary procedure afterwards, and it will also appear that the improvement of the trial did little good whilst the preliminary procedure remained unaltered.

II.—

1640-1660

The trials which took place between the meeting of the Long Parliament and the Restoration illustrate that part of our history which, for obvious reasons, has aroused the strongest party feelings. The only matter on which I have to observe is the effect which it produced on the administration of criminal justice. With some obvious qualifications, this was almost wholly good. The qualifications are those which are inseparable from the administration of justice in a revolutionary period. The judicial proceedings of such a period cannot, in the nature of things, be regular, because no system of government can make provision for its own alteration by main force. A forcible revolution implies a new departure, and new institutions based upon the will of the successful party, and necessitates acts which involve a greater or less departure from legality. This was no doubt the case to a considerable extent in the English Civil Wars. In some of the impeachments which formed the turning-points in the struggle between the King and the Parliament, and particularly in the attainder of Strafford and the execution of Laud, the law was, to say the least, violently strained. The trial and execution of Charles I. was a proceeding which cannot be criticised at all upon strictly legal grounds. The establishment of the High Court of Justice which tried not only Charles I., but many of his adherents, without a jury, and sentenced them to death, was in itself a greater departure from the ordinary practice of English criminal justice than the Star Chamber. It supplies the only case (so far as I know) in English history in which judges sitting without a jury (other than the members of courts-martial) have been entrusted with the power of life and death. Nevertheless, after making every allowance on these points, it must be remarked that, from the year 1640 downwards, the whole spirit and temper of the criminal courts, even in their most irregular and revolutionary proceedings, appears to have been radically changed from what it had been in the preceding century to what it is in our own days. In every case, so far as I am aware, the accused person had the witnesses against him produced face to face, unless there was some special reason (such as sickness) to justify the reading of their depositions. In some cases the prisoner was questioned, but never to any greater extent than that which it is practically impossible to avoid when a man has to defend himself without counsel. When so questioned, the prisoners usually refused to answer. The prisoner was also allowed, not only to cross-examine the witnesses against him if he thought fit, but also to call witnesses of his own. Whether or not they were examined upon oath I am unable to say.

These great changes in the procedure took place apparently spontaneously, and without any legislative enactment. This, no doubt, favours the view that the course taken in the political trials of the preceding century either really was or else was regarded as being illegal. If they were, the word illegal must have been construed in a sense closely approaching to unjust or immoral.

The proceedings against King Charles I. form a remarkable illustration of the contrast which exists between the administration of justice before and after the Long Parliament and the Civil War. He was, as is known to every one, condemned principally for refusing to plead to the charges made against him by the High Court of Justice, and this was nearly the only step in the whole of his career in which he was not only well advised, but perfectly firm and dignified in his conduct. If he had pleaded he would, of course, have been convicted. The Court, however, did not put their sentence solely on that ground. They took evidence to satisfy their consciences, and there are few stranger documents than 1 the depositions of the witnesses who would have been called against him if he had pleaded, and whom the Court thought it necessary to hear. They prove his presence at the different battles, and the fact that people were killed there, just as witnesses in the present day would prove the facts about any common case of theft or robbery. For instance: “Samuel Morgan, of Wellington, in the county of Salop, felt-maker, sworn and examined, deposeth, that he, this deponent, upon a Monday morning in Keynton field, saw the King upon the top of Edge Hill, in the head of the army; . . . and he saw many men killed on both sides, at the same time and place.” “Gyles Gryce . . . saw the King in front of the army in Naseby Field, having back and breast on.” Also, he “saw a great many men killed on both sides at Leicester, and many houses plundered.”

The punctilious and almost pedantic formality of providing such witnesses for the purpose of proving such facts is characteristic, and shows how deeply men’s minds had been impressed with the importance of proceeding upon proper and formal evidence in criminal cases.

III.—

1660-1678

The reigns of Charles II. and James II. form perhaps the most critical part of the history of England, as the whole course of our subsequent history has been determined by the result of the struggles which then took place. At every critical point in those struggles a leading part was played by the courts of criminal justice, before which the contending parties alternately appeared, charged by their adversaries with high treason, generally on perjured evidence, and before judges who were sometimes cowardly and sometimes corrupt partisans.

The history of the most important of these proceedings has been so often related that I should not feel justified, even if my space allowed me, in attempting to go into their circumstances minutely; but there is still room for some observations upon them from the merely legal point of view. I do not think that the injustice and cruelty of the most notorious of the trials—the trials for the Popish Plot, or those which took place before Jeffreys—have been in any degree exaggerated. The principal actors in them have incurred a preeminent infamy, in mitigation of which I have nothing to say, but I am not sure that their special peculiarity has been sufficiently noticed. It may be shortly characterised by saying that the greater part of the injustice done in the reigns of Charles II. and James II. was effected by perjured witnesses, and by the rigid enforcement of a system of preliminary procedure which made the detection and exposure of perjury so difficult as to be practically impossible. There was no doubt a certain amount of high-handed injustice, and the disgusting brutality of Jeffreys naturally left behind it an ineffaceable impression; but, when all this has been fully admitted, I think it ought in fairness to be added that in the main the procedure followed in the last half of the seventeenth century differed but little from that which still prevails amongst us; that many of the trials which took place—especially those which were not for political offences—were perfectly fair; and that even in the case of the political trials the injustice done was due to political excitement, to individual wickedness, and to the harsh working of a system which, though certainly defective in admitting of the possibility of being harshly and unjustly worked, was sound in many respects.

A study of the State Trials leads the reader to wonder that any judge should ever have thought it worth while to be openly cruel or unjust to prisoners. His position enabled him, as a rule, to secure whatever verdict he liked, without taking a single irregular step, or speaking a single harsh word. The popular notion about the safeguards provided by trial by jury, if only “the good old laws of England” were observed, were, I think, as fallacious as the popular conception of those imaginary good old laws. No system of procedure ever devised will protect a man against a corrupt judge and false witnesses, any more than the best system of police will protect him against assassination. The safeguards which the experience of centuries has provided in our own days are, I think, sufficient to afford considerable protection to a man who has sense, spirit, and, above all, plenty of money; but I do not think it possible to prevent a good deal of injustice where these conditions fail. In the seventeenth century, rich and powerful men were as ill off as the most ignorant labourer or workman in our own day; indeed, they were much worse off, for the reasons already suggested.

The importance of these remarks will be illustrated by the trials during the next period to which I have to refer.

IV.—

1678-1688

The ten years immediately preceding the Revolution are, perhaps, the most important in the judicial history of England. In them occurred the trials for the Popish Plot, the Meal Tub Plot, and the Rye House Plot, the trials connected with the Duke of Monmouth’s rebellion, and the trials which led to the Revolution itself, of which the trial of the Seven Bishops was by far the most important.

One great leading cause of the result of these trials is, I think, to be found in the defects of the system of criminal procedure which was then in full vigour, and which, even to this day, is in force, theoretically though not practically, to a greater extent than is generally supposed to be the case. The prisoner was looked upon from first to last in a totally different light from that in which we regard an accused person. In these days, when a man is to be tried, the jury are told that it is their first duty to regard him as being innocent till he is proved to be guilty, and that the proof of his guilt must be given step by step by the prosecution, till no reasonable doubt can remain upon the subject. This sentiment is both modern and, in my opinion, out of harmony with the original law of the country. No one can be brought to trial till a grand jury has upon oath pronounced him guilty, as the form of every indictment shows. “The jurors for our Lady the Queen, upon their oaths, present that A, wilfully, feloniously, and of his malice aforethought, did kill and murder B.” Why should a man be presumed to be innocent when at least twelve men have positively sworn to his guilt? In former days, as I have already shown, the presentment of a grand jury went a long way towards a conviction, and a man who came before a petty jury under that prejudice was by no means in the same position as a man against whose innocence nothing at all was known. In nearly every one of the trials for the Popish Plot, and, indeed, in all the trials of that time, the sentiment continually displays itself, that the prisoner is half, or more than half, proved to be an enemy to the King, and that, in the struggle between the King and the suspected man, all advantages are to be secured to the King, whose safety is far more important to the public than the life of such a questionable person as the prisoner. A criminal trial in those days was not unlike a race between the King and the prisoner, in which the King had a long start and the prisoner was heavily weighted.

The following were the essential points in the proceedings which established this view. First, the prisoner as soon as he was committed for trial might be, and generally was, kept in close confinement till the day of his trial. He had no means of knowing what evidence had been given against him. He was not allowed as a matter of right, but only as an occasional, exceptional favour, to have either counsel or solicitors to advise him as to his defence, or to see his witnesses and put their evidence in order. When he came into court he was set to fight for his life with absolutely no knowledge of the evidence to be produced against him. Any one who has ever acted as an advocate knows what it is to be called upon to defend a man at a moment’s notice. Under such circumstances, a modern barrister has usually at least a copy of the depositions. To defend a prisoner efficiently is a task which makes considerable demands on the readiness, presence of mind, and facility of comprehension of a man trained to possess and use those faculties. That an uneducated man, whose life is at stake, and who has no warning of what is to be said against him, should do himself justice on such an occasion is a moral impossibility. But this was what was required of every person tried for high treason in the seventeenth century. None of the prisoners tried for the Popish Plot, except Lord Stafford and Sir George Wakeman, defended themselves even moderately well. Langhorn, who was a barrister, lost his head so completely that he did not cross-examine Oates as to the arrangement of his chambers, which was said to be such that Oates could not possibly have heard and seen what he said he heard and saw there—a circumstance on which Scroggs afterwards relied as a justification of his conduct in disbelieving Oates. When an experienced lawyer defended himself so feebly, it is not surprising that inexperienced persons should have been utterly helpless.

That the prisoner’s witnesses were not permitted to be sworn was even in those days considered as a hardship, and the jury were told in all or most of the trials to guard against attaching too much weight to it. The advantage which that state of the law gave to fraudulent defences, which might be set up without any risk of a prosecution for perjury, seems to have been stupidly overlooked. It was also a common topic of complaint that prisoners had no copy of the indictment against them, or of the panel of jurors; but I think the importance of these matters was overrated. A copy of the indictment would only have enabled prisoners to make little quibbles, which the judges would have overruled, and would have been right in overruling; and a copy of the panel is of no real use to a prisoner. If the sheriff wishes to pack a jury, he must be very clumsy if he does not provide a sufficient number of partial jurors, free from any legal objection, to allow for thirty-five peremptory challenges. If, on the other hand, he is fair, one juryman is practically as good as another. The real grievance was keeping the prisoner in the dark as to the evidence against him. Theoretically this grievance still exists, though practically it has long since been removed. As the law still stands, a bill might be sent before a grand jury without notice to the person accused. The bill being found, the person accused might be arrested merely on proof of his identity; he would not be taken before a magistrate, and until he was put in the dock to take his trial he would have no legal right to know who were the witnesses against him, or what they had said, or even to have a copy of the indictment.

These defects in the system of trial in the seventeenth century, I own, strike me as being almost less important than the utter absence which the trials show of any conception of the true nature of judicial evidence on the part of the judges, the counsel, and the prisoners. The subject is even now imperfectly understood, but at that time the study of the subject had not begun.

I have now completed what I had to say on the administration of criminal justice under the Stuarts after the Restoration. The most general observation which it suggests to me is, that it brought to light and illustrated in the case of eminent persons defects both in the law itself and in the methods of procedure which must have produced a great amount of obscure injustice and misery. There must have been plenty of Oateses and Bedloes at the assizes and quarter sessions who have never been heard of, and no doubt scores or hundreds of obscure people suffered for common burglaries and robberies of which they were quite as innocent as Stafford was of the high treason for which he was convicted. There certainly was, however, a considerable improvement in the methods of trial during the seventeenth century. Prisoners were not tortured (as they were in every other part of Europe); witnesses were produced face to face, whom the prisoner could cross-examine. The rules of evidence were beginning to be, to some extent, though to a small extent, recognised and understood, and by the end of the century the evils of judicial corruption and subserviency, and the horrors of a party warfare carried on by reciprocal prosecutions for treason alternately instituted against each other, with fatal effect, by the chiefs of contending parties, had made so deep an impression on the public imagination, that a change of sentiment took place which from that time effectually prevented the scandals of the seventeenth century from being repeated. I have dwelt at length upon the second half of the seventeenth century because it was from its troubles and scandals that a better system arose, which has been by degrees improved into the one which is now administered amongst us.

V.—

1688-1760

The administration of criminal justice, after the Revolution, passed into quite a new phase. I should doubt whether much difference was made in the common course of justice, at the assizes and sessions, till very recent times; but from the Revolution to our own day political parties have been recognised parts of the body politic, and political differences have been treated as matters on which contending parties can differ without carrying their disputes to the deadly extremity of prosecutions for treason. There have been plenty of political trials since the Revolution, but from a variety of causes they have been conducted in most cases fairly, in some instances more or less unfairly, but never scandalously. The legislative result of the scandals of the seventeenth century upon criminal procedure was slight. The most important was the enactment that the judges should hold office, not at the pleasure of the Crown, but during good behaviour. This deeply affected the whole administration of justice. The changes in procedure were less important; and applied entirely to trials for high treason. As to them it was enacted, 1 in 1695, that persons indicted for high treason or misprision of treason should have a copy of the indictment five (afterwards extended to ten) days before trial, and be allowed to have counsel and witnesses upon oath; and that the treason should be proved by two witnesses, either both to one overt act, or each to one of two overt acts of the same kind of treason. 1 In 1708 the prisoner was also allowed to have a list of the witnesses and of the jury ten days before his trial. 2 In 1702 it was enacted that in cases of treason and felony the prisoner’s witnesses should be sworn, as well as the witnesses for the Crown. These were the only legislative changes which the scandals of the trials in the days of the later Stuarts produced; and nothing can set in a clearer light the slightness of the manner in which the public attention was then, or indeed till a far later time, directed to the defects of the criminal law.

Many of the trials which took place in the reigns of William III., Anne, George I., and George II. are deeply interesting on various accounts, and especially on account of the strong light which they throw, not only on the history, but still more on the manners of the time; but in a legal point of view they call for little remark. As time passes, the differences between our own days and those of the seventeenth century gradually pass away. From the first there is a complete absence of fierceness and brutality. At first there are 3 a few instances in which prisoners are questioned. For a considerable time the witnesses are allowed to tell their own story at length in their own way, and the restriction as to not swearing the prisoner’s witnesses is kept up till the passing of the statute already referred to. I am not sure that the most striking feature in the political trials of the first part of the eighteenth century is not to be found in the fact that the reforms about giving prisoners indicted for treason a copy of the indictment, lists of jurors and witnesses, and the right to be defended by counsel, made in practice so very little difference. The truth is, that after the Revolution few, if any, prisoners were tried for high treason except people clearly proved to have committed what was held to be treason; and I do not think that counsel had learnt the art of defending prisoners zealously or impressively.

From the middle of the eighteenth century to our own time there has been but little change in the character of criminal trials, and it is unnecessary to give further illustrations of them. The most remarkable change introduced into the practice of the courts was the process by which the old rule which deprived prisoners of the assistance of counsel in trials for felony was gradually relaxed. A practice sprung up, the growth of which cannot now be traced, by which counsel were allowed to do everything for prisoners accused of felony except addressing the jury for them. In the remarkable case of 1 William Barnard, tried in 1758, for sending a threatening letter to the Duke of Marlborough, his counsel seem to have cross-examined all the witnesses fully, in such a way, too, at times, as to be nearly equivalent to speaking for the prisoner, e. g.: “Q. It has been said he went away with a smile. Pray, my Lord Duke, might not that smile express the consciousness of his innocence as well as anything else? A. I shall leave that to the Great Judge.”

On the other hand, at the trial of 2 Lord Ferrers two years afterwards, the prisoner was obliged to cross-examine the witnesses without the aid of counsel and, what seems even harder, to examine for himself witnesses called to prove the defence of insanity which he set up.

Since the middle of the eighteenth century proceedings of the highest importance, and involving momentous changes in the substantive criminal law, have been effected partly by legislation, partly, though to a much smaller extent, by judicial decisions. Of these I shall speak in my chapters on the different branches of the substantive law; but I do not think that the actual administration of justice, or the course of trials has altered much since the beginning of the reign of George III. Its general character has no doubt been affected to a considerable extent by the changes made in the law itself, by the course of thought on legal and political, religious and moral subjects, and by many other influences, but it can hardly be said to have had any history of its own, and apart from its connection with the current events of the time. The only change which has made any great difference between the trials of our own days and those of 120 years ago was made by 1 the Act which allowed prisoners accused of felony to make their full defence by counsel; and this, after all, has only put trials for felonies, such as robbery or burglary, on the same footing as trials for perjury, cheating, and other misdemeanours. Indeed, if we have regard to the powers of cross-examination which were conceded to counsel in the course of the eighteenth century, the change was less important than it may at first sight seem to have been.

The result of the history of the administration of criminal justice in England which I have thus sketched—for it is a slight though not, I hope, an incorrect sketch—may be thus shortly summarized:—

Criminal justice was originally a rude substitute for, or limitation upon, private war, the question of guilt or innocence, so far as it was entertained at all, being decided by the power of the suspected person to produce compurgators or by his good fortune in facing an ordeal. The introduction of trial by combat, though a little less irrational, was in principle a relapse towards private war, but it was gradually restricted and practically superseded many centuries before it was formally abolished.

Trial by jury originated in the adaptation to the purpose of the administration of justice of the process commonly in use in the eleventh and twelfth centuries for obtaining information as to matters of fact, namely, collecting an inquest or body of persons supposed to be acquainted with the subject and taking their sworn statement about it. The members of the inquest were originally witnesses, and, even if they derived their knowledge from other witnesses, they, and not their informants, were responsible for the truth of their verdict. By slow degrees they acquired the character of judges of fact informed by witnesses. This process lasted from the first origin of juries in the twelfth or thirteenth centuries down to the sixteenth century, when we have the first fairly trustworthy records of actual trials.

Side by side with trial by jury during this period, a system was developing itself in the Star Chamber, and similar courts, of a trial by written pleadings, bills, answers, interrogatories, and affidavits, like those which were afterwards in use in the Court of Chancery in civil cases. It exercised a strong influence over trial by jury, and its effect can be traced in all the criminal proceedings which took place under the Tudors, James I. and Charles I. The administration of criminal justice at this time was also affected to a considerable extent by the civil law trial by witnesses, though, on the one hand, it never thoroughly adopted torture, which was practically an essential part of that system, nor did it, on the other, admit, except in the one case of treason, the necessity for two witnesses, which rendered torture necessary in countries where it prevailed.

The Civil Wars broke down this system, and gave to trial by jury an undisputed supremacy, which has now lasted for more than two centuries, in the administration of criminal justice; but the experience of the reigns of Charles II. and James II. showed, first, that juries might be quite as unjust and tyrannical as the Star Chamber; next, that they were equally likely to be unjust on any side in politics; and, lastly, that the true theory of judicial evidence was at that time not understood, and that, so far as it was understood, it had little influence upon verdicts.

Lastly, after the Revolution, a decisive victory having been won by one of the great parties of the State, the administration of criminal justice was set upon a firm and dignified basis, and so became decorous and humane; and as it was mainly left in the hands of private persons, between whom the judges were really and substantially indifferent, the questions which were involved came to be fully and fairly investigated, each party to the contest doing the best he could to establish his own view of the case in which he was interested. The rapid growth of physical science, and indeed of every branch of knowledge, which has been one great characteristic of the history of the last two centuries, naturally influenced the administration of justice as well as other things, and the final result of the long process which I have been trying to describe seems to be that in criminal trials questions of fact are investigated as nearly in the same spirit as other matters of fact as the differences inherent in the nature of the processes will admit. It would be interesting to trace the steps by which this came about, but such an inquiry belongs rather to the history of the rules of evidence than to the history of the administration of criminal justice. The last-mentioned history ends at the point at which the present forms are fully established, and at which the process carried on under them begins to develop itself, in accordance with the general intellectual movement of the age.

35.

THE STORY OF THE HABEAS CORPUS1

By Edward Jenks2

IT may sound a little surprising to assert, at the present day, that there is no readily accessible book, nor, indeed, so far as the writer is aware, any book, which gives, in a succinct and intelligible form, an account of the origin of this famous bulwark of our liberties. And yet there have been times in our history, and may be again, when ‘those famous words Habeas Corpus’ have been on the lips of every one who takes an interest in public affairs. Most of us know that the famous Habeas Corpus Act of 1679 created no new remedy, but merely strengthened and perfected an engine which had been used with effect in the great struggle between Crown and Parliament in the earlier years of the century. The older statutes, the Petition of Right and the 16 Car. I. c. 10, which mark the stages of that Titanic struggle, also refer to the writ of Habeas Corpus as a thing well known. As we follow back the story, we find the same assumption everywhere. The writ is accepted as a primordial fact. A few vague flourishes about ancient liberties are supposed to account for its existence. It would almost seem as though it were indiscreet to inquire too closely into the origin of this sacred instrument. And the writer believes that there was once a time at which such inquiry would indeed have been indiscreet—that those who then knew most and felt most strongly about the writ of Habeas Corpus had the best of reasons for discouraging antiquarian research. It is not likely that Coke and Selden and Prynne were really ignorant on the subject. But they often speak as though they were.1

In truth there is not a little about the Habeas Corpus which requires explanation. In the first place it seems odd (or it would seem odd in any system of law but our own) that the king’s writ, this ‘high prerogative writ,’ as Blackstone calls it,2 should have been the great engine for defeating the king’s own orders. In the second place, it is somewhat disconcerting to find that this high prerogative document is not an Original writ at all, but a mere interlocutory mandate, or judicial precept, which occurs in the course of other proceedings. Thirdly, and this perhaps is the most embarrassing discovery, the more one studies the ancient writs of Habeas Corpus (for there were many varieties of the article) the more clear grows the conviction, that, whatever may have been its ultimate use, the writ Habeas Corpus was originally intended not to get people out of prison, but to put them in it. These are facts which should surely arouse a just curiosity. Amongst other thoughts which they suggest, they seem to raise this not unimportant historical question—Were the champions of popular liberties, in those stormy days of the early seventeenth century, quite so conservative as they professed to be? When they were loudly asserting that they did but vindicate the existing order, were they in very truth effecting a revolution?

Now the great matter of the liberty of the subject did not rest on mere tradition in the days of Coke. Whatever may be the true meaning of that famous passage in Glanvil,3 which Coke so triumphantly quoted,4 whatever the precise value of that still better known and vaguely rhetorical clause of the Great Charter,1 neither of these vague authorities could stand before the precise and elaborate provisions of the great Statute of Westminster I,2 which, in its fifteenth chapter, had disposed exhaustively of the subject of bail. That chapter was in full force when Coke prepared his Second Institute. He wrote an elaborate criticism upon it. The chapter is too long to quote in full; but amongst those persons who are in the plainest language declared not to be ‘replevisable,’ are ‘those which were taken . . . by commandment of the king or of his Justices.’ Coke employs the whole force of his argument to show that the words ‘by commandment of the king’ do not mean what they obviously do mean, even descending so low as to assert, that ‘the commandment of the king’ means the order of the King’s Bench, while ‘of his Justices’ means the Common Pleas.3 But the whole of Coke’s commentary on the statute is an audacious piece of political controversy, thinly disguised under cover of legal exegesis. It is kindest to remember, that the Second Institute was not published until some time after its author’s death.

Plainly, then, the asserters of public liberties found a lion in the path. They could not use any of the ordinary remedies against unlawful imprisonment. This will be clear if we look for a moment at these remedies.

1. The writ de Homine Replegiando. This was the most obvious proceeding. It lay equally against the sheriff, i. e. the royal agent, and the private person.4 If the latter did not give up his prisoner, but sought to escape obedience by eloigning his captive—i. e. hiding him in a distant county—he could himself be summarily imprisoned by a Capias in withernam.5 Both sheriff and private person were liable to attachment if they disobeyed the writ. But when we read the writ, in any of those books of precedents which so rapidly appeared after the introduction of printing,1 we see in a moment why it was that the heroes of the seventeenth-century struggle could not venture to rely on it. Assuredly no Chancellor of James or Charles would have hesitated to affix the broad seal to the document. For it bade the sheriff replevy the prisoner nisi captus fuerit per speciale preceptum nostrum.

2. The writ de Manucaptione. This was a writ framed, apparently, on the latter part of the fifteenth chapter of Westminster I. According to its form, as given in the orthodox books,2 it was only available for persons indicted of larceny before sheriffs by inquest of office; and as, by a statute of the year 1354,3 sheriffs were forbidden to take indictments, the writ seems to have fallen into disuse. In any case, it expressly referred to the Statute of Westminster I, and could, therefore, hardly have been used by any one claiming to be set at liberty in defiance of the provisions of that statute. Moreover, a statute of the year 13314 had reissued the statutory restrictions on mainprize. The difference between bail and mainprize is explained by Coke,5 but does not seem to be material for our purpose.

3. The writ de Odio et Atia. This writ, which is fully described by Bracton,6 only lay in favour of a man imprisoned on an Appeal of homicide, i. e. at the suit of a private person. It directed the sheriff to hold an inquest whether the accused was accused on good grounds, or of ‘hatred and malice.’ It is said to have been the writ alluded to in the twenty-sixth chapter of the Great Charter, and it probably represents a very ancient right of a party challenged to battle.1 In its form of an inquest, it was, no doubt, a powerful agent in the gradual evolution of the criminal jury. Coke, who had his own reasons for magnifying the writ (which had probably fallen out of use long before his time), invents a statute of 28 Edw. III to abolish it, and then revives it by implication in the 42 Edw. III. c. 1.2 The real truth of the matter is, in all probability, that, with the dying out of Appeals of homicide, the writ ceased to be applicable, and fell into oblivion.3 In spite of the vague wording of the Statute of Westminster II,4 it can hardly be believed that it could have issued in favour of a prisoner at the king’s suit. In any case it would not, even if successful, have resulted in a Habeas Corpus, but in a writ de ponendo in ballium, of which the form is given by Bracton.5

Thus we have seen, that the three most obvious remedies for wrongful imprisonment were practically closed to the victims of Charles I. But their champions were mighty in the law, and knew all the mazes of the jungle. If they could not lead their prisoners out by the highway, they would drag them through secret windings to a place of safety.

We know that the instrument which they chose for their purpose was the writ of Habeas Corpus. But when we look for the writ of Habeas Corpus in the contemporary records, we are at first puzzled by the choice offered to us. To say nothing of the Habeas Corpus (or, rather, Habeas Corpora) directed to the sheriff, bidding him bring up the four knights for the Grand Assize,1 or the jurors in an ordinary inquest,2 we find that, under the more familiar name of Capias, the writ of Habeas Corpus plays a normal part in almost every personal action.3 The first step after the service of the writ is the summons, and the second is the Capias ad respondendum, which bade the sheriff have the body of the defendant on a given day before the Court. As the sheriff might have some difficulty in executing this order, he was warned a second and a third time before being attached for disobedience. These warnings went by the names of alias and pluries respectively; and these names will awaken certain memories. If the Capias ad respondendum proved ineffectual to secure the defendant’s appearance, the plaintiff might resort, at first only in trespass contra pacem, but afterwards in almost all other actions,4 to the elaborate process of outlawry. And when the necessary forms had been gone through, and the sheriff had returned quinto exactus, the plaintiff could then get a Capias utlagatum, which would direct the sheriff to seize the outlaw, and have him before the Justices at Westminster on a given date, ad faciendum et recipiendum quod Curia nostra de eo consideraverit.5 If, when the sheriff had got the defendant in prison, he failed to produce him at the proper time, alleging that the prisoner could not be moved for danger to his health, he might be reminded of his duty by a subsequent writ of Habeas Corpus super Languidus retorn’.6 If the accused was in custody on an Appeal of homicide, the sheriff might be directed to have his body before the Justices on a certain day, that they might proceed with the Appeal.1 A similar writ lay to apprehend a man who had been indicted of felony, but had eluded arrest under outlawry.2 Finally, if judgment were given against the defendant, the sheriff might be ordered by the writ of Ca. Sa. to have the body of the defendant before Our Justices, ad satisfaciendum the claim of the plaintiff.3

These writs have been mentioned, not because it is contended that any one of them is in itself the famous weapon of political warfare, but that we may be warned to look for the origin of that weapon, not in vague assertions of the liberty of the subject, but in what seems to be, at first sight, a wholly unlikely quarter, viz. that practice of arrest on mesne process, which was so long one of the great scandals of our legal procedure. As Pollock and Maitland have pointed out,4 the Habeas Corpus, in its form of a Capias, or arrest on mesne process, was making its way into English law before the close of the thirteenth century. And although, in the dearth of law books which followed the work of Bracton and his epitomists, exact proof is not forthcoming, we may regard it as fairly certain, that the writs we have enumerated were fully established as ordinary legal process before the end of the fourteenth century. The Capias ad respondendum, the Capias utlagatum, and the Capias ad satisfaciendum are practically as old as the common law itself.

But, if we look at the Statutes and Year Books of the fifteenth century, we shall, I think, gain the impression that another and very important form of the Habeas Corpus is making its way into legal procedure. This is the Habeas Corpus cum Causa (or, more briefly, Corpus cum causa), which bids the sheriff, or other custodian, ‘have the body of A in our prison under your custody as it is said’ before Our Justices at Westminster on a certain day, ‘together with the day and cause of his caption and detention, to do and receive what Our Court shall consider of him on this part.’ It is a little significant that this writ is, apparently, with the striking exception to be hereafter referred to, not to be found in the early printed books of forms. The next example I have met with is in Coke’s Entries, published in 1614.1 But it is quite clear, that the writ of Corpus cum causa was known, in one form or another, at least two hundred years before that date. What were the occasions on which it was used?

In the present state of the authorities, any statement about the law of the fifteenth century must be made with extreme caution. But as the result of a fairly earnest attack on Statutes and Year Books, I venture to put it, that the Corpus cum causa was used, for a long time, as a mere adjunct to two important writs Original, the writ of Certiorari and the writ of Privilege. A word on each of these.

1. Certiorari. This was, as is well known, a prerogative writ, by which the King’s Bench removed the proceedings from an inferior tribunal to its own forum. It appears that, as the law stands at the present day,2 the writ always issues as of right at the request of the Crown, but, at the request of the defendant or prisoner, only on cause shown. It seems, however, that, at the very beginning of the fifteenth century, the writ was employed as a means of chicane by both prosecutors and defendants. A statute of the year 14143 is directed against the practice by condemned prisoners of procuring the writ, and getting released on bail; and it is probable that the same practice is alluded to by another statute passed twenty years later.4 Much about the same time, the writ was used as a means of evading liabilities on Statute Staple. When arrested on the summary process provided by the Statutes of the Staple, debtors obtained a Corpus cum causa from Chancery, on the pretence of having a legitimate defence; and then, having procured bail, proceeded to issue a Sci. Fa. to test the validity of the recognizance.1 The Certiorari was also used by prosecutors as a means of oppression, with the object of snatching outlawries without giving the accused time to appear.2 Somewhat later, the same writ, with its accompanying Habeas Corpus, was used by defendants to delay proceedings in local courts, an abuse which was checked by two statutes of Elizabeth and James I.3 The principle of the Certiorari is indeed very old in our law; for it is, in essence, little more than a development of the ancient Pone.4 And it is worth noting, that, in the very earliest known Register of Writs, it is expressly said, that a Pone will only be granted to the tenant,aliqua ratione precisa vel de majori gratia.5

Although cases of Certiorari do not become frequent in the Year Books until the latter half of the reign of Henry VI, we may probably take it, that from the beginning of the fifteenth century the remedy was recognized, and that it was enforced by a Corpus cum causa. The connection between the two writs comes up in a curious quarter, viz. Cowell’s Interpreter, where the Habeas Corpus is treated merely as an incident in Certiorari.6 Cowell is certainly not above suspicion in the matter; but neither, for the matter of that, is Coke. Each must be taken for what he is worth. But the value of the Certiorari for Coke’s purpose was certainly discounted by the drawbacks:—(1) that it could only be applied for when proceedings had already been commenced in an inferior tribunal, (2) that the writ could not be claimed as of right by a prisoner or defendant.

2. Privilege. From very early times exemption, absolute or qualified, from legal process, was freely claimed by divers classes of persons. The most conspicuous example is, of course, that of the clergy; but other people were not slow to follow their example. As early as the reign of Henry IV1 a clerk of the Chancery who was sued in the Common Bench obtained a Supersedeas on the ground that he could only be sued in the tribunal of which he was an official. The Common Law Courts claimed similar privileges on behalf of their officials;2 and the privilege of members of Parliament rested on similar grounds.

Towards the middle of the fifteenth century, we notice a vigorous development of the theory of Privilege. Where a man is sued in a superior court, and, on coming to appear, is arrested on a process in an inferior tribunal, he is entitled to a Corpus cum causa, directed to the officers who have arrested him; and they will be ordered to produce him before the higher court.3

Needless to say, this chance of escape from liability was soon abused; and we find the Courts busily engaged, during the greater part of Henry VI’s reign, in deciding when Privilege might be allowed, and when not. Thus, it was early decided,4 that the application would only be granted where the applicant had been arrested veniendo morando vel redeundo, on the business of his case. What the superior tribunal would do with the applicant when he came before it is not quite clear; sometimes he was only allowed to appoint an attorney, sometimes, apparently, he was bailed. But it was always agreed that a Supersedeas,5 and, à fortiori, a Corpus cum causa,6 did not lie for a person imprisoned at the suit of the king, even where the king’s interest in the suit was purely formal, e. g. in an action of trespass contra pacem. In another case,7 where the proceedings in the superior tribunal were obviously feigned, the Court refused the Corpus cum causa, on the ground that the applicant could not have been coming to attend to his duties in the superior court invacation. A further rule laid down was, that if the proceedings in the superior court were commenced after the imprisonment, there was no case for the Habeas Corpus.1 In later cases the Court dealt sharply with persons who sought to abuse the process.2 If the memory of this class of cases had not entirely died out, we should hardly have found judges in the eighteenth century alleging that the Habeas Corpus did not apply in civil suits; nor should we have required a special statute to get over the difficulty.

3 The position at the end of the fifteenth century seems then to be tolerably clear. The remedy of Corpus cum causa is available to an imprisoned applicant; but only on one of two grounds. He must show either (1) that there is a proceeding in which the King’s Bench or the Chancery would be justified in issuing the prerogative writ of Certiorari or its equivalent, or (2) that he, the applicant, enjoys a special privilege which entitles him to exemption from proceedings in all but a particular tribunal.

In the sixteenth century, however, the Corpus cum causa expands beyond these limits. We note a disposition to use it to test the validity of an imprisonment.4

In one of the very earliest of the printed Form Books5 there appears a writ addressed to the Constable of the Tower, directing him, under penalty of £100, to have the body of a certain John Elyngton together with the day and cause of his caption and detention, before our Justices at Westminster, to answer to a plea brought against him for the sum of forty shillings by one Wilfred Armidel, et ad faciendum ulterius et recipiendum quod curia nostra, &c. The prisoner had been arrested in the suit at the Common Bench, and let out on bail. Then he had been arrested by the Constable of the Tower, who had refused to produce him on the first demand. Unhappily, there seems to be little clue to the date of the writ. It must, of course, have been before 1510, the date of Pynson’s book; but beyond that fact there is nothing to guide us.1 The language of the writ, however, the flourishes about the sworn duty of the king to render justice to all his subjects, and the suspiciously small amount of the claim in the Common Bench,2 point irresistibly to the conclusion, that we are here on the track of a struggle between the law courts and the executive, in which recourse is being had to the lately established theory of privilege for suitors, in order to test the validity of a State imprisonment. If so, the writ is a landmark in our story. A Year Book case of 1497,3 in which a lady obtained a Corpus cum causa to test the validity of a recaption of herself (after an escape) by a gaoler of a franchise, is also interesting, for it raises a question of which much was heard in later days. The gaoler sought to evade the point at issue by omitting the cause of detainer in his return. It was held that, where the arrest was made ex officio curiae, it was not necessary to specify the cause; otherwise where the arrest was at the suit of the party. Two writs in Rastell’s Register4 (both, alas, undated) are directed to securing the appearance of a defendant who has been arrested by the malice of the plaintiff, but the words cum causa are not found.

In the year 1588, two cases of a distinctly political character were decided on Habeas Corpus. In the first (Search’sCase)1 the applicant had been arrested by the Steward of the Marshalsey, for himself causing the arrest (presumably by due course of law) of one Mabbe, who had obtained Letters of Protection from the Queen. The Court of Common Pleas discharged Search from custody, and, on his subsequent re-arrest, issued an attachment against Mabbe and his friends.

Howell’s Case is still more striking. There the Steward of the Marshalsey returned to a Habeas Corpus that the prisoner was committed per mandatum Francisci Walsingham militis Principalis Secretarii et unius de privato concilio Dominae Reginae. The return was held to be insufficient, for not stating the cause; and then the Steward amended his return, alleging a committal ‘by the opinion and order of the whole Privy Council.’ With some reluctance the Court seems to have admitted that such a return was good; but it insisted that the prisoner should always be produced, so that ‘if it shall seem good to the Court, the prisoner shall have his privilege.’2

These cases led directly to the famous pronouncement known as The Resolution in Anderson. This dictum, one of the very few extra-judicial pronouncements of the English Bench, seems to be entirely unworthy of the contumely which has been heaped upon it. Read carefully, in the light of history, it appears to be a very exact and careful statement of the law, coloured neither by subserviency nor by arrogance. Put in its briefest form, it lays down two propositions:—

A. That persons committed ‘by Her Majesty’s commandment from her person, or by order from the Council Board, or if any one or two of her Council commit one for high treason,’—such persons are not bailable; but,

B. ‘Nevertheless the Judges may award the Queen’s writs to bring the bodies of such persons before them’ (and then remand them) ‘which cannot conveniently be done, unless notice of the cause in generality, or else specially, be given to the keeper or gaoler that shall have the custody of such a prisoner’3 (anno 1592).

So far from being an unworthy concession to Court influence, this Resolution marks a distinct advance in the development of the Habeas Corpus. It sweeps away the historical accidents of the writ—the accompaniments of Certiorari and Privilege—and definitely establishes the Habeas Corpus as a substantive remedy, which exists as of right for all prisoners. With regard to the vexed question of the ‘cause shown,’ the judges and barons who unanimously signed the Resolution knew perfectly well that for this further demand there was no legal authority, if the imprisonment was by order of the Crown. But in the most decided, though at the same time courteous, manner, they intimate that the Crown would do well to give way upon the minor point.

From this time the Habeas Corpus starts upon a new career of activity. At the very beginning of the seventeenth century it succeeded in procuring the release of Sir Thomas Shirley from the Fleet, whither he had been committed on an arrest for debt.1 In 1608 the Common Pleas, by its agency, rescued Sir Anthony Rooper from the clutches of the Court of High Commission.2 In 1610 the great case of the validity of the customs of London (Wagoner’s Case3 ) was decided on a Habeas Corpus. In 1615, in the case of Peter Furb, the Court of Common Pleas asserted its ancient privilege of protecting its suitors by the same writ.4

We are now, perhaps, in a position to understand the merits of the famous Five Knights’ Case of 1627.5 Sir Thomas Darnel and four others were committed to the Fleet by a warrant, signed by two members of the Privy Council, which alleged for cause only per speciale mandatum regis. Darnel applied to the King’s Bench for a Habeas Corpus, which was immediately issued. The warden of the Fleet made some little delay in returning the writ; but, on the receipt of an alias, put in a return which merely alleged the warrant as above described. The same course was taken with the other four prisoners. The Court of King’s Bench, after hearing lengthy arguments for the prisoners, remanded the latter to prison. It is difficult to see how, as the law then stood, the Court could have done otherwise. The writ of Habeas Corpus had been readily granted; but the return showed a cause for which the prisoners were not ‘replevisable.’ When the decision of the King’s Bench was under discussion in Parliament, in a conference between the two Houses, Coke met the difficulty by a bold argument. Admitting, as he was obliged to do, the plain meaning of the Statute of Westminster I, he urged that it applied only to proceedings by way of replevin in the Sheriff’s Court, ‘a petty and base Court, and not of record, where the sheriff is not the judge, but the jurors, that is John a Noke and John a Stiles, William Roe and John Doe, and such worthies as these.’1 But Coke must have known perfectly well, that the powers of his former colleagues of the King’s Bench, in the matter of bail, belonged to them only as justices of the peace, and not as justices of the bench. The business of the justices of the bench is, not to bail prisoners, but to try them.

Now the powers of justices of the peace to grant bail rested, unfortunately for Coke, upon express statute, and very limited they were. They seem to have been first given by a statute of 1483,2 which allowed justices of the peace to bail persons committed ‘on suspicion’ or ‘on light suspicion, of felony.’ Stringent precautions in the exercise of this power were imposed by a slightly later Act,3 while the great criminal statute of the year 15444 expressly reënacted the provisions of the Statute of Westminster I with regard to persons not replevisable, and ordered strict observance of them by all justices of the peace.

In the end Parliament did the only thing possible under the circumstances, by introducing a bill to alter the law. In the year 1628 this bill, now known as the Petition of Right, received the grudging assent of the king; and an obscure sentence in it gave the victory to the Parliament, by abolishing the power of the Crown to imprison without cause shown.1

The acceptance of the Petition of Right was almost immediately followed by the Six Members’ Case2 in 1629. As in the case of the Five Knights, the writ was granted without demur;3 but, contrary to the precedent of 1627, the prisoners were not produced at the bar of the King’s Bench, the different gaolers merely returning that the prisoners were committed by order of twelve of the Privy Council upon a warrant signed by the king himself.4 The cause of committal alleged in the latter document was, ‘notable contempts by him committed against Ourself and Our government, and for stirring up sedition against Us.’ It was strenuously argued, that this was no sufficient cause of committal within the terms of the Petition of Right;5 and Heath, the Attorney-General, had to resort to the meanest of quibbles, as well as the most dangerous constitutional doctrines, to get over the objection. Nevertheless, as is well known, the Court refused to enlarge the prisoners, though their committal was a clear breach of Parliamentary privilege, unless they would find sureties, not only for their reappearance, but for their good behaviour.6 This they naturally declined to do, as such a step would have been a virtual admission of guilt.7

The Six Members’ Case was followed by eleven of the blackest years in the history of English law, during which the growing indignation of the popular party found, owing to the suspension of Parliament, no adequate means of expressing itself. Whether the Courts during this period refused applications for Habeas Corpus, it is difficult to discover without an exhaustive search. But that they did so is highly probable, for one of the earliest acts of the Long Parliament, which met in November, 1640, was to appoint a Committee on the Courts of Justice,1 and, a few days later, to refer to it the question of Habeas Corpus.2 The result of the Committee’s action is very clearly shown in the sixth section of the famous Act for the Abolition of the Star Chamber,3 which received the royal assent in July, 1641; but it may be doubted whether the wording of the section, which was evidently the subject of much discussion, was altogether wise. At first the proposal seems to have been, to declare the Habeas Corpus claimable as of right by every prisoner, a course which, one would have thought, would have prevented many future disputes. But, after engrossment of the bill, the desire to refer to the hated tribunal by name seems to have got the better of the discretion of the House, and a rider was sewn on to the parchment4 which, in effect, limited the scope of the provision to commitment by a conciliar Court, or by the king’s personal warrant, or that of the Privy Council. Unhappily also, the Act did not touch upon the question of vacation, though it expressly attributed equal functions to the King’s Bench and the Common Pleas. As is well known, this omission gave an opening to a serious miscarriage of justice in Jenks’ Case, a proceeding in which the forms of law were perhaps more shamelessly abused by the judicial bench than in any of the more famous trials in the days of Charles I.

5 This has not been a very lucid story, but it has been no easy task to pierce the mists with which the barbarous condition of the evidence and the deliberate mis-statements of party controversy have covered the subject. The final word on the history of the Habeas Corpus will not be said, until the Year Books have been reëdited, and the long series of judicial rolls (or at least a good selection from them) carefully printed. Meanwhile, however, this paper claims to have suggested the answers to at least four questions which, for the last two hundred years, have puzzled the student who has grappled with the Habeas Corpus. As thus:

1. Q. Why was there any doubt whether the writ issued ‘as of right’?

A. Because the Certiorari never issued as of right on the demand of the defendant, and the Privilege only issued in certain special cases (xviii. L. Q. Rev. pp. 69, 70).

2. Q. Why was there any doubt as to the proper tribunal?

A. Because the Certiorari only issued by order of the King’s Bench, while the Privilege (writ or bill) sometimes issued out of the Chancery and sometimes out of the Common Pleas (ibid. p. 71).

3. Q. Why could the writ only be claimed in term time?

A. Because no one could take proceedings during vacation in a superior Court, and to take proceedings was, ex hypothesi, the object of the Corpus cum causa (ibid. p. 71).

4. Q. Why could the gaoler demand an alias and a pluries?

A. Because, the original Capias being an order to arrest a person, the sheriff, to whom it was addressed, might reasonably have some difficulty in catching his man (ibid. pp. 67, 68).

All of which questions were finally set at rest by the Habeas Corpus Act of 1679.1

36.

THE HISTORY OF THE REGISTER OF ORIGINAL WRITS1

By Frederic William Maitland2

DE Natura Brevium, Of the Nature of Writs,—such is the title of more than one well-known text-book of our mediæval law. Legal Remedies, Legal Procedure, these are the all-important topics for the student. These being mastered, a knowledge of substantive law will come of itself. Not the nature of rights, but the nature of writs, must be his theme. The scheme of “original writs” is the very skeleton of the Corpus Juris. So thought our forefathers, and in the universe of our law-books, perhaps in the universe of all books, a unique place may be claimed for the Registrum Brevium,—the register of writs current in the English Chancery. It is a book that grew for three centuries and more. We must say that it grew; no other word will describe the process whereby the little book became a big book. In its final form, when it gets into print, it is an organic book; three centuries before, it was an organic book. During these three centuries its size increased twenty-fold, thirty-fold, perhaps fifty-fold; but the new matter has not been just mechanically added to the old, it has been assimilated by the old; old and new became one.

It was first printed in Henry VIII.’s reign by William Rastell. Rastell’s volume contained both the Register of Original Writs and the Register of Judicial Writs. The former is dated in 1531; at the end of the latter we find accurate tidings—“Thus endyth thys booke callyd the Register of the wryttes oryggynall and judiciall, pryntyd at London by William Rastell, and finished the xxviii day of September in the yere of our lorde 1531 and in the xxiii yere of the rayne of our soverayn lord kyng Henry the eyght.” Whether this book was ever issued just as Rastell printed it I do not know; what I have seen is Rastell’s book published with a title-page and tables of contents by R. Tottel, in 1553. In 1595 a new edition was published by Jane Yetsweist, and in 1687 another, which calls itself the fourth, was printed by the assigns of Richard and Edward Atkins, together with an Appendix of other writs in use in the Chancery and Theloall’s Digest. In 1595 the publisher made a change in the first writ, substituting “Elizabetha Regina” for “Henricus Octavus Rex;” the publisher of 1687 was not at pains to change Elizabeth into James II. In other respects, so far as I can see from a cursory examination of Rastell’s book (which I am not fortunate enough to possess), no changes were made; the editions of 1595 and 1687 are reproductions of the volume printed in 1531, and the correspondence between them is almost exactly, though not quite exactly, a correspondence of page for page.

Coke speaks of the Register as “the ancientist book of the law.”1 In no sense can we make this saying true. But to ask for its date would be like asking for the date of one of our great cathedrals. In age after age, bishop after bishop has left his mark upon the church; in age after age, chancellor after chancellor has left his mark upon the register. There is work of the twelfth century in it; there is work of the fifteenth century, perhaps of the sixteenth, in it. But even this comparison fails to put before us the full ineptitude of the question, What is the date of this book? No bishop, no architect, however ambitious, could transpose the various parts of the church when once they were built; he could not make the crypt into a triforium; but there was nothing to prevent a reforming chancellor from rearranging the existing writs on a new plan; from taking “Trespass” from the end of the book and thrusting it into the middle. No; to ask for the date of the Register is like asking for the date of English law.

When we take up the book for the first time we may, indeed, be inclined to say that it has no arrangement whatever, or that the principle of arrangement is the principle of pure caprice. But a little examination will convince us that there is more to be said. Every now and again we shall come across clear traces of methodic order, and probably in the end we shall be brought to some classification of the forces which have played upon the book. The following classification may be suggested: (1) Juristic logic; (2) practical convenience; (3) chronology; (4) mechanical chance. Let me explain what I mean. We might expect that the arrangement of such a work would be dictated by formal jurisprudence; we might expect that the main outlines would be those elementary contrasts of which every system of law must take notice,—real, personal—petitory, possessory—contract, tort. Again, knowing something of the English writs, we might expect to find those which begin with “Præcipe” falling into a class by themselves; or, again, to find that those which direct a summons are kept apart from those which direct an attachment; or, again, to find that writs of “Justicies,” i. e., writs directing the sheriff to do justice in the county court, are separated from writs destined to bring the defendant into the king’s own courts. Well, in part we may be disappointed; but not altogether: formal jurisprudence has had something to do with the final result, though not so much as might be expected. The printed book begins, and every MS. that I have seen, whether it comes from Henry II.’s day or Henry VI.’s, begins with the writ of right. Now, there is logic in this; for whatever actions are “personal,” whatever acts are “possessory,”—and different ages hold different opinions about this matter,—there can be no doubt that the action begun by writ of right is “real” and “petitory” or “droiturel.” Our Register then begins with the purest type of a real and droiturel action. And the logic of jurisprudence has left other marks, especially near the end of the book, where we find Novel Disseisin, Mort d’Ancestor, Cosinage and Writs of Entry, following each other, in what we shall probably call their “natural order.” Still, such logic will not, by any means, explain the whole book. It would be quite safe to defy the student of “general jurisprudence” to find Trespass, or Covenant, or Quare Impedit, by the light of first principles.

Then, again, practical convenience has had its influence. The first twenty-nine folios of the printed Register are taken up by the Writ of Right, and other writs which have generally collected around that writ. Then a new section of the book begins (f. 30-71); it is devoted to writs which the modern jurist would describe as being of the most divers natures; but they all have this in common, that in some way or another they deal with ecclesiastical affairs and the clerical organization. The link between this group and that which it immediately succeeds is (f. 29 b) the Writ of Right of Advowson. It is a Writ of Right; but having once come across the advowson it is convenient to dispose of this matter once and for all, to introduce the Assize of Darrein Presentment, which is thus torn away from the other possessory assizes, the Quare Impedit, the Quare Incumbravit, the Juris Utrum, and so forth. This brings us into contact, if not conflict, with the church courts; so let us treat of Prohibitions to Court Christian, whether these relate to advowsons, land, or chattels, and while we are about it we may as well introduce the De excommunicato capiendo, and so forth; then we shall have done with ecclesiastical affairs. Here, to use the terms that I have ventured to suggest, we see “practical convenience” getting the better of “juristic logic;” or, to put it in other words, matter triumphing over form. But form’s turn comes again. We have done with the church; what topic should we turn to next? The answer is, “Waste.” But why waste, of all topics in the world? Because, until the making of a certain statute, duly noticed in our Register, the action of waste was an action on a royal prohibition against waste.1 “Prohibition” is the link which joins “waste” to “ecclesiastical affairs.”

Yet another principle has been at work. A section in the middle of the book is devoted to Brevia de Statuto, writs that are founded on comparatively modern statutes. What keeps this group of writs together is neither “form” nor “matter,” but chronology; they are recent writs, for which neither logic nor convenience has found a more appropriate place. In short, we have here an appendix. But it is an appendix in the middle of the book. We can hardly explain its appearance there without glancing at the MSS.; but even without going so far we can still make a guess. When these statutory writs have been disposed of, we almost immediately (f. 196 b) come upon what seems a well-marked chasm. Suddenly the Novel Disseisin is introduced, and then for a long while logic reigns, and we work our way through the possessory actions. If we find, as we may find, a MS. which has several blank leaves before the Novel Disseisin, which honors the Novel Disseisin with an unusual display of the illuminator’s art, we have made some way towards a solution of the problem. At one time the book was in mechanically separate sections, and the end of one of these sections was a convenient place for a statutory appendix.

After all, however, it is improbable that we shall ever be able to explain in every case why a particular writ is found where it is found, and not elsewhere. The vis inertiæ must be taken into account. Writs collected in the Chancery; now and again an enterprising Chancellor or Master might overhaul the Register, have it recopied, and in some small degree rearranged; but the spirit of a great official establishment, with plenty of routine work, is the spirit of leaving alone; the clerks knew where to find the writs; that was enough.

The MS. materials for the history of the Register are abundant. The Cambridge University library possesses at least nineteen Registers, some complete, some fragmentary; the number at the British Museum is very large. Over the nineteen Cambridge Registers I have cast my eyes. They are of the most various dates. In speaking about their dates it is necessary to draw some distinctions. In the first place, of course, it is necessary to distinguish between the date of the MS. and the date of the Register that it contains, for sometimes it is plain that a comparatively modern hand has copied an ancient Register. In the second place, as already said, it is useless to ask the date of a Register, or of a particular Register, if thereby we mean to inquire for the date when the several writs contained in it were first issued, or first became current; the various writs were invented in different reigns, in different centuries. The sense that we must give to our inquiry is this: at some time or another the official Register of the Chancery was represented by the MS. now before us; what was that time? It will be seen, however, that the question in this form implies an assumption which we may not be entitled to make,—the assumption that our MS. fairly represents what at some particular moment of time was the official Chancery Register. I have as yet seen no MS. which on its face purported to be an official MS., or a MS. which belonged to the Chancellor or any of his subordinates. In very many cases the copy of the Register is bound up in a collection of statutes and treatises, the property of some lawyer or of some religious house. Often an abbey or priory had one big volume of English law, and in such volumes it is common to find a Registrum Brevium. Such volumes were lent by lawyer to lawyer, by abbey to abbey, for the purpose of being copied, and it is clear that a copyist did not always conceive himself bound to reproduce with mechanical fidelity the work that lay upon his desk. Thus, many clerks are quite content that the names of imaginary plaintiffs and defendants should be represented by A and B, while another will make “John Beneyt” a party to every action, and suppose that all litigation relates to tenements at Knaresborough. We have not to deal with the dull uniformity of printed books; no two MSS. are exactly alike; every copyist puts something of himself into his work, even if it be only his own stupidity. Thus, settling dates is a difficult task. Sometimes, for example, a MS. which gives the Register in what, taken as a whole, seems a comparatively ancient form, will just at a few places betray a knowledge of comparatively modern statutes. Gradually, however, by comparing many MSS., we may be able to form some notion of the order in which, and the times at which, the various writs became recognized members of the Corpus Brevium.

It will be convenient to mention here that one of the most obvious tests of the age of a Register is to be found in the wording of those writs which expressly mention a term of limitation. There are three such writs; namely, the Novel Disseisin, the Mort d’Ancestor, and the De nativo habendo. Now, at the beginning of Henry III.’s reign (1216), the limiting period for the Novel Disseisin seems to have been the last return of King John from Ireland, but in 1229, or thereabouts, there was a change, and Henry’s first coronation at Westminster became the appointed date;1 the Mort d’Ancestor was limited to the time which had elapsed since Richard’s coronation. The Statute of Merton (1236), or rather, as I think, an ordinance of 5th Feb., 1237, fixed Henry’s voyage into Brittany as the period for the Novel Disseisin, and John’s last return from Ireland as the period for the Mort d’Ancestor and De Nativo.2 Statute of Westminster the First (1275, cap. 39) named for the Novel Disseisin Henry’s first voyage into Gascony, for the Mort d’Ancestor and for the De Nativo Henry’s coronation.3 As no further change was made until Henry VIII.’s day, this test is applicable only to the very earliest Registers. For Registers of the fourteenth century, however, we can use a somewhat similar criterion: when they mention Henry III., as they call him “pater noster,” or “avus,” or “proavus noster.” But, good though such tests may be, they are by no means infallible. A man copying an already ancient Register might well be tempted to tamper with phrases that were obviously obsolete; and, again, we shall have cause to doubt whether even in the Chancery itself a new statute of limitations always set the clerks on promptly overhauling their ancient books and making the necessary corrections; great is the force of official laziness. Still, these writs which mention periods of limitation are the parts of the Register which first attract the critic’s eye.

But there is yet another difficulty. Are we justified in assuming that there always, or ever, was in the Chancery some one document which bore the stamp of authority, and which was the Register for the time being? I doubt it. The absolutely accurate officialism to which we are accustomed in our own day is, to a large extent, the product of the printing-press. The cursitors and masters of the mediæval Chancery had no printed books of precedents. It is highly probable that each of them had his MS. book; that these books were transmitted from master to master, from cursitor to cursitor, and that they differed much from each other in details.1 To have prevented them from differing would have been a laborious and a needless task. This thought will be brought home to us by several passages in the printed book. In the first place, it is full of notes and queries: the writer expresses his doubts as to the best way of formulating this or that writ; he tells us what some think, what others think, what some do, and what others do; occasionally he speaks to us in the first person, says “credo” and “je croye,” and even points out that this Register differs from other Registers.2 It is in this way that we may explain the somewhat capricious selection of writs that the printed book presents. It naturally includes all the common forms that are in daily use; but it includes, also, many forms of a highly specialized kind,—forms which set forth the facts of cases which have happened once, but are by no means likely to happen again. The Chancery undoubtedly had some power in itself to devise such “writs upon the special case;” not unfrequently it was ordered to make a writ suited to the very peculiar circumstances of a case which had been brought before the Council, or before the Parliament, just because none of the common writs would meet it.1 Of such “brevia formata” we get a selection, but only a selection. Some are preserved because they will be useful as precedents, others, as it seems to me, because they are curiosities, and not likely to form precedents.2 In many quarters we see more signs of private enterprise than of official redaction. A considerable number of specially worded writs bear the name of Parning,—a number out of all proportion to the brief two years during which that famous common lawyer held the great seal. He had the good fortune, we may suppose, to have some industrious clerk for an admirer; his predecessors and successors were less lucky.3 I greatly doubt, then, whether we have in strictness a right to speak about the Register of a given period, as though there was some one document exclusively or preëminently entitled to that name; rather we should think of the Register as a type to which diverse registers belonging to diverse masters and clerks more or less accurately conformed. About common matters these manuscripts agreed; about rareties and curiosities there was difference, and room for difference. There was no great need for a perfectly stereotyped uniformity; the fact that a writ was penned, and that it passed the seal, was not a fact that altered rights or secured the plaintiff a remedy; it still had to run the gauntlet in court, and might ultimately be quashed as unprecedented and unlawful. It is clear, indeed, that the granting of specially worded writs was regarded as an important matter, which required grave counsel and consideration; the masters were consulted as a body; sometimes it would seem as though the opinion of the justices was taken before the writ issued.1 A chancellor, a master, even a cursitor, cannot have liked to see his writs quashed; and, though writs were quashed very freely, as the Year Books witness, still, if I mistake not, it will be found that in most cases the fault lay rather with the plaintiff or his advisors than with the Chancery; he had got an inappropriate writ, but not one that was in any respect contrary to law. Any notion that the Chancery was a Romanizing institution, that the learning of the masters was the learning of civilians, is rudely repelled by the Register. Whatever academic training in Roman and canon law the masters may have had, they were English lawyers, daily engaged in watching the development of English law in the English courts, in reading the Year Books, and in “writing up” decisions in the margins of their Registers. Still, to return to my point, the granting of a newly worded writ was no judicial act; to grant one which could not be maintained was no act of justice; it might be a very proper experiment.

The Register of which I am speaking is the Register of Original Writs. The printed book contains also a Register of Judicial Writs. The difference between Original Writs and Judicial Writs is generally known. Roughly speaking, we may put it thus: An original writ is a writ whereby litigation is commenced; its type is a common writ of trespass or debt, whereby the sheriff is directed to compel the defendant to appear in court and answer the plaintiff; on the other hand, a judicial writ is a writ issued during the course of an action, either before or after judgment; thus, the re-summons of one already summoned, a venire facias for jurors, a fieri facias, an elegit,—these may be taken as types of judicial writs. But, in strictness, we are hardly entitled to bring into our definitions any particularization of the character of the writs. The technical distinction seems to have been a simpler one: the original writ issues out of the Chancery, the judicial issues out of a Court of Law; we can say no more. It sometimes happens that the same writ can be obtained in the Chancery or in the Common Pleas; in term time one gets it from the court, in vacation one goes to the Chancery; such a writ will, therefore, have its place in both Registers, the Original and the Judicial.1 And very many of the documents which find a place in the former cannot be described as writs originating litigation; they relate to litigation that has been already begun. A tenant in an action begun by writ of right puts himself on the grand assize while yet the action is in the court baron or county court; the writ summoning the electors of the grand assize will issue out of the Chancery, and we must look for it in the Register of Original Writs. The same Register contains numerous writs evoking litigation from the local courts,—writs of pone, certiorari, recordari facias, and so forth. But, further, the fully developed Registrum Brevium Originalium contains great masses of documents which neither originate nor evoke litigation,—pardons, protections, safe-conducts, licenses to elect bishops and abbots, orders for the election of coroners and verderers, letters whereby the king presents a clerk, fiscal writs addressed to the Barons of the Exchequer, writs to escheators, and so forth, in rich abundance; even letters to foreign princes, begging them to do justice to Englishmen, find a place in the collection.1 Many of these formulas, it may be, were never known as brevia originalia, and some were not brevia at all; still, it would be very difficult to say where the original writs left off, for a great deal of what we might call fiscal and administrative work was done under quasijudicial forms, and by the use of quasi-judicial machinery. The Exchequer, according to our ideas, was half law court and half financial bureau. The collection of the revenue, the management of the king’s demesnes and feudal rights, were carried on by means of writs, inquests, verdicts, very similar to those which determined the rights of litigants. And happy it may be for us that no stricter separation was made between ordinary law and administrative law. Our present point, however, must be merely that all this great mass of miscellaneous matter is collected into the Register of Original Writs, and thus gets mixed up with the formulas of ordinary litigation. The later the MS. of the Register the larger is the proportion which the administrative documents bear to the writs which originate or evoke litigation, and, as we shall see hereafter, the general scheme of the book had become fixed at a time when it was still chiefly made up of writs subserving the process of litigation between subject and subject.

These things premised, it may be allowed me to make a few remarks about the early history of the Register.

It is highly probable that so soon as our kings began to interfere habitually with the ordinary course of justice in the communal and feudal courts, and by means of writs to draw matters into their own court, the clerks of the chancery began to collect precedents of such writs, and it well may be that some of the formulas that they used were already of high antiquity.2 But the careful reader of Mr. Bigelow’s “Placita” will, as I think, be led to doubt whether before the reign of Henry II. there was anything that could fairly be called a Registrum Brevium, and the student of Madox’s Exchequer will be inclined to hold that there were no writs that could be obtained “as of course” (de cursu) by application to subordinate officials. Nothing was to be had for nothing; the price of writs was not fixed, and every writ was, in the terms of a later age, “a writ upon the special case.” Before the end of Henry’s reign there had been a great change, though the practice of selling royal aid (theoretically it was rather “aid” than “justice” that was sold) was by no means at an end. Already when Glanvill wrote there were many writs drawn up “in common form;” so drawn up, that is, as to cover whole classes of disputes. Let us follow him in his treatment of them. Not impossibly he took them up in the order in which they occurred in an already extant Chancery Register, and, as we shall see hereafter, the arrangement of the Register in much later times conforms, as regards some of its main outlines, to the arrangement of Glanvill’s treatise.

In his first book he begins (cap. 6) with the Præcipe quod reddat for land, which he treats as the normal commencement of a petitory action. In the second book we have (cap. 8, 9) the writs of peace granted when a tenant has put himself on the grand assize; then (cap. 11) the writ summoning the electors of the grand assize, and (cap. 15) the writ summoning the recognitors. The third book, on warranty, does not give us any “original” writ. In the fourth book (cap. 2) occurs the Writ of Right of Advowson, the Writ (cap. 8) Quo advocato se tenet in ecclesia; a Prohibition (cap. 13) to ecclesiastical judges against meddling with a cause touching an advowson, and (cap. 14) a summons on breach of such a Prohibition. The fifth book, on serfage, gives us (cap. 2) the De libertate probanda. The sixth book turns to dower, and contains (cap. 5) the Writ of Right of Dower, a writ of Pone (cap. 7) for removing the case from the county court, the Writ (cap. 15) of Dower unde nihil habet, and the Writ (cap. 18) of Admeasurement of Dower. The seventh book, on inheritance or succession, has (cap. 7) the Writ Quodstare facias rationalem divisam, and (cap. 14) the writ to the Bishop, directing an inquiry into bastardy. In the eighth book comes (cap. 4) the Writ de fine tenendo, and several writs (cap. 6, 7, 10), Quod recordari facias, “evocatory writs,” we may call them. In the ninth we have (cap. 5) the Writ De homagio capiendo, the Writ of Customs and Services (cap. 9), a writ against a tenant who has encroached upon his lord (cap. 12), and the Writ De rationabilibus divisis (cap. 14). The tenth book gives us the Writ of Debt (cap. 2), the Writ De plegio acquietando (cap. 4), a writ for a mortgage creditor calling on the debtor to pay (cap. 7), a writ calling on the mortgagee to render up the land (cap. 9), a writ calling in the warrantor of a chattel (cap. 16). From the eleventh book we gather only a writ announcing the appointment of an attorney. In the twelfth book we come to the Writs of Right, strictly so called (brevia de recto tenendo), and a number of writs empowering the sheriff to do justice; namely, the Ne injuste vexes (cap. 10), the De nativo habendo (cap. 11), a Writ of Replevin (cap. 12, 15), a Writ of Admeasurement of Pasture (cap. 13), a Quod permittat for easements (cap. 14), a Writ De rationabilibus divisis (cap. 16), a Writ Quod facias tenere divisam (cap. 17), a Writ of Justicies for the return of chattels unlawfully taken by a disseisor, and a few other miscellaneous writs, including a Prohibition to Court Christian against meddling with lay fee. In the thirteenth book come the possessory assizes. The fifteenth gives a hasty sketch of criminal business.

Glanvill’s scheme of the law, or rather his scheme of royal justice, might, as it seems to me, be displayed by some such string of catchwords as the following: “Right” (i. e., proprietary right in land), “Church,” “Liberty,” “Dower,” “Inheritance” or “Succession,” “Actions on Fines,” “Lord and Tenant,” “Debt,” “Attorney,” “Justice to be done by feudal lords and sheriffs,” “Possession,” “Crime.” Now, some of the main lines of this “legalis ordo,” if I may use that term, keep constantly reappearing in the later history of the Register. At all events, two poles are fixed,—the terminus a quo, the terminus ad quem; we are to begin with “Right;” to end with “Possession.” The reappearance of this scheme in the Register of later days is the more remarkable, because Bracton did not adopt it; as is well known, he begins with “Possession,” and ends with “Right.” We may make a further remark, which will be of use to us hereafter. Glanvill’s twelfth book is most miscellaneous, and at one point resolves itself into a string of writs, which are given without note or comment. The idea which keeps the book together is that of justice done, not by the King’s court, but by lords and sheriffs, in pursuance of royal writs. Such a tie is likely to be broken in course of time. Thus, the “Writ of Right Patent,” the writ commanding a lord to entertain a proprietary action, is likely to find its proper place by the side of the Præcipe quod reddat, especially when Magna Charta has sanctioned the rule that a Præcipe is only to be issued when the tenant holds immediately of the king.1 And so, again, the writs commanding the sheriff to do justice, writs of “Justicies,” or “Justifices,” will hardly be kept together by this bond; but in course of time, as the king’s own court extends, its sphere will fall into various subordinate places; thus, for example, “Debt by Justicies in the county court” will become an appendix or a preface to “Debt in the Bench.”

The arrangement of Glanvill’s book is, however, sufficiently well known, and therefore, without further reflection upon it, I will pass on to describe the earliest Registrum Brevium that I have seen. Happily it is one to which we can affix a precise date, namely, the 10th of November, 1227. It is found in a MS. at the British Museum (Cotton, folios D, 11, f. 143 b),—a book that once belonged to the monks of St. Augustine’s, Canterbury. It forms a schedule annexed to a writ of Henry III., bearing the date just given, and directed to the people of Ireland. That writ recites that the king desires that justice be done in Ireland according to the custom of his realm of England, and states that for this purpose he is sending a formulary of the writs of course (formam brevium decursu), and wills that they be used in the cases to which they are applicable. The writ was issued at Canterbury, and to this fact we probably owe its lucky preservation in a Canterbury book. The Register that it gives is about forty years younger than Glanvill’s treatise, and affords the means of measuring the growth of law during an important period,—the period of the Great Charter. I will briefly describe its contents.

It begins with three Writs of Right (1, 2, 3), and we learn that these writs can only be had “sine dono;” that is, without payment, when the land demanded is but half a knight’s fee or less, or the service due from it does not exceed 100 shillings, or, being a burgage tenement, the rent or the value of the buildings does not exceed 40 shillings a year. Then follows (4) the Præcipe in capite. Then (5) the Novel Disseisin, the period of limitation being stated as “post ultimam transfretacionem nostram de Hibernia in Angliam;”1 and as an appendix to this we have (6) the Novel Disseisin of Common, and (7) the Assize of Nuisance, with variations. Next comes (8) the Mort d’Ancestor; the period of limitation is said to be postquam coronacionem H. patri nostris.2 Then come (9) the assize of Darrien Presentment, (10) Prohibition to the bishop against admitting a parson, (11) Writ ordering a bishop to disencumber the church when he has admitted a parson contrary to such Prohibition, (12) Mandamus to a bishop to admit a presentee, (13) Writ of Right of Advowson, (14) Prohibition to ecclesiastical judges, (15) Writ against ecclesiastical judges who have disobeyed the Prohibition. This ecclesiastical group being finished, we find next (16) the Writ of Peace for a tenant who has put himself on the grand assize, and (17) a writ for the election of the grand assize. And here we have an interesting note: “Et notandum quod in hac assisa non ponuntur nisi milites et debent jurare precise quod veritatem dicent non audito illo verbo quod in aliis recognitionibus dicitur scilicet a se nescienter.” Unless I am traducing the copyist, something must have gone wrong with these last words. They were French, but he took them for Latin. In the grand assize the recognitor must swear, in an unqualified way, that he will tell the truth; while in all other recognitions he may add “a so. scient;” that is, “according to his knowledge.” A small group of writs relating to dower (18, 19, 20) come next. Then follows (21) the Juris Utrum, which, it is remarked, lies either for the clerk or for the layman.1 Next (22) comes the Attaint which can be brought against recognitors of Novel Disseisin, Mort d’Ancestor, Darrein Presentment, but not against the recognitors of the Grand Assize. Then (23) we have an action on a fine, “Præcipe A. quod teneat finem,” and (24) the action of Warrantia Cartæ. Writs of Entry are represented by but two specimens: the first is (25) Entry ad terminum qui præteriit, the second (26) is Cui in vita. Then we find (27) quod capiat homagium, (28) writs for sending knights to view an essoinee, and (29) to hear a sick man appoint an attorney. On these follow (30) the De nativo habendo, (31) the De libertate probanda (32) the De rationabilibus divisis, and (33) the De superoneracione pasturæ. We pass to criminal matters, and get (34) the writ to attach an appellee to answer for robbery, rape, or arson, with a note that in case of homicide the appellee is to be attached, not by gage and pledge, but by his body; as a sequel to this comes (35) the De homine replegiando. We return to civil matters, and find (36) the Writ of Services and Customs, and (37) the Ne injuste vexes. Then comes (38) Debt and Detinue. The only writ that falls under this head is a Justicies, and not, like Glanvill’s Writ of Debt, a Præcipe; and there is this further difference, that the remarkable words, “et unde queritur quod ipse ei injuste deforciat,” which occur in Glanvill’s writ, and make it look so very like a Writ of Right, have disappeared. The supposed debt in the Irish Register is one of 20 shillings, and we have this important note: “In the same fashion a writ is made for a charter, ‘quam ei commisit,’ or for a horse or for chattels to the value of 40 shillings, ‘sine dono’ [i. e., without any payment to the king], for if the debt or price exceeds 40 shillings the words must be added: ‘accepta ab eo [the plaintiff] securitate de tercia parte de primis denariis ad opus Regis.’ ” In Ireland, at all events, the king will only become a collector of debts for the modest commission of 33⅓ per cent.

To this succeeds (39) a Prohibition to ecclesiastical judges against dealing with lay fee, and (40) a writ to compel them to answer for breach of such a prohibition. Next occurs (41) a writ directing the sheriff not to suffer an infant to be impleaded, and (42) a Recordari facias applicable to a case in which a tenant has vouched an infant. Then we have (43) a Justicies de plegio acquietando for a debt of forty shillings or less; “non habebit ultra xl. sol. sine dono.” Then comes (44) a writ forbidding the sheriff to distrain R., or permit him to be distrained, to render ten marks to N., for which he is neither principal debtor, nor pledge; but “this writ does not run in privileged cities, or where the debtor is the king’s debtor.” Another writ (45) forbids the sheriff to distrain R. for money promised to the king “for right or record,” i. e., for money promised in consideration of the king’s aid in litigation, if, without his own default, he has not got what he stipulated for. Another writ (46) forbids the sheriff to distrain a surety when the principal debtor can pay; but this writ is not to be issued when the debt is one that is due to the king. Then (47) comes a writ of Mesne by way of Justicies, and (48) the De excommunicato capiendo. Upon this follows (49) covenant “si quis conventionem fecerit albi quam in curia domini Regis cum vicino suo qui eam infringere voluerit de aliqua terra vel tenemento ad terminum si exitus illius tenementi non excesserint per annum xl. solidos;” the writ is a Justicies “quod teneat conventionem.” We have then (50) a Writ of Dower, and (51) a Writ of Waste against a dowager. Miscellaneous writs follow: (52) a Venire facias for an assize; (53) a Pone ad peticionem petentis; (54) a summons for a warrantor; (55) a writ to inquire of the bishop touching the marriage of a woman claiming dower; (56) a writ directing a view of the land demanded.

So ends the Irish Register, an important document. It brings out very forcibly the king’s position as a vendor of justice, or rather, as we have said, of “aid.” We must, as it seems to me, believe, until the contrary be shown, that we have here a fairly correct representation of the writs that were current in England in 1227; the writs that were “of course” and to be had at fixed prices; but some may have been omitted as inapplicable to Ireland.

Before making further comments, let us turn to an English Registrum, which, so far as I can judge, must be of very nearly the same date as this Irish Registrum. It is found in a Cambridge MS. (Ti. vi. 13), and may, I think, be safely ascribed to the early years of Henry III.’s long reign; for I can see no trace in it of the Statute of Merton. The book contains a copy of Glanvill’s treatise, which is followed by a Registrum, and of this we will note the contents. I add references to Glanvill’s treatise, and to the Irish Register; the latter of these I will designate by the symbol “Hib.” while the Cambridge MS., now under consideration, I shall hereafter refer to as CA.

1. Writ of right addressed “Roberto de Nevill;” with several variations. (Glanv. xii, 2; Hib. 1.)

2. Writ of right “de rationabili parte.” (Glanv. xii, 5.)

3. Praecipe in capite. (Glanv. i, 6; Hib. 4.)

4. Pone; this will only be granted to a tenant “aliqua ratione precisa vel de majori gratia.” (Hib. 53.)

5. Writs of peace when tenant has put himself on grand assize. (Glanv. ii, 8, 9; Hib. 16.)

6. Writ summoning electors of grand assize, “et nota quod in hac assisa non ponuntur nisi milites et precise jurare debent.” (Glanv. ii, 11; Hib. 17.)

7. De recordo et judicio habendo.

8. Procedendo in writ of right.

9. Respite of writ of right so long as tenant is “in servicio nostro in Pictavia vel in Wallia cum equis et armis per preceptumnostrum.” Respites (Hib. 41) where a tenant or vouchee is an infant.

10. Warrantia cartae. (Hib. 24.)

11. Entry “ad terminum que preteriit.” (Cf. Glanv. x, 9; Hib. 25.)

12. Entry “cui in vita.” (Hib. 26.)

13. De homagio capiendo. (Glanv. ix, 5; Hib. 27.)

14. Novel disseisin;1 limitation “post ultimum reditum domini J. patris nostri de Hybernia in Angliam.” (Glanv. xiii, 33; Hib. 5.)

15. Novel disseisin of pasture; same limitation. (Glanv. xiii, 37; Hib. 6.)

16. Mort d’Ancestor;2 limitation “post primam coronacionem R. Regis avunculi nostri.” (Glanv. xiii, 3, 4; Hib. 8.)

17. De nativo habendo;2 same limitation. (Glanv. xii, 2; Hib. 30.)

18. De libertate probanda. (Glanv. v, 2; Hib. 31.)

19. De rationabilibus divisis. (Glanv. ix, 14; Hib. 32.)

20. De superoneratione pasturae. (Hib. 33.)

21. Replevin. (Glanv. xii, 12, 15.)

22. De pace regis infracta; writ to attach appellee by gage and pledge in case of robbery or rape. (Hib. 34.)

23. De morte hominis; writ to attach appellee by his body. (Hib. 34.)

24. De homine replegiando. (Hib. 35.)

25. Services and customs; a “justicies.” (Glanv. ix, 9; Hib. 36.)

26. Ne injuste vexes. (Glanv. xii, 10; Hib. 27.)

27. Debt; a “justicies;” “reddat B. x. sol. quos ei debet ut dicit, vel cartam quam ei commisit custodiendam.” (Glanv. x, 2; cf. xii, 18; Hib. 38.)

28. Prohibition to ecclesiastical judges against entertaining a suit touching a lay fee. (Glanv. xii, 21; Hib. 39.)

29. Similar prohibition to the litigant. (Glanv. xii, 22.)

30. Prohibition in case of debt or chattels, “nisi sint de testamenti vel matrimonio.”

31. Attachment for breach of prohibition. (Hib. 40.)

32. De plegiis acquietandis. (Glanv. x, 4; Hib. 43.) Also (32a) a writ forbidding the sheriff to distrain the surety while the principal debtor can pay. (Hib. 46.)

33. Mesne. (Hib. 47.)

34. Aid to knight lord’s son or marry his daughter.

35. De excommunicato capiendo. (Hib. 48.)

36. Covenant; justicies;“de x. acres terre.” (Hib. 49.)

37. Writ announcing appointment of attorney.

38. Writ to send knights to hear sick man appoint attorney. (Hib. 29.)

39. Writ sending knights to view essoinee. (Hib. 28.)

40. Darrein presentment. (Glanv. xiii, 19; Hib. 9.)

41. Prohibition in case touching advowson. (Glanv. iv, 13; Hib. 14.)

42. Writ of right of advowson. (Glanv. iv, 2; Hib. 13.)

43. Writ to bishop for admission of presentee. (Hib. 12.)

44. Quare incumbravit. (Hib. 11.)

45. Attachment for breach of prohibition. (Glanv. iv, 14; Hib. 11.)

46. Dower “unde nihil habet.” (Glanv. vi, 15; Hib. 18.)

47. Dower “de assensu patris.” (Hib. 19.)

48. Dower in London.

49. Juris utrum. (Glanv. xiii, 24; Hib. 20.)

50. Attaint; the assize was taken “apud Norrvicum coram H. de Bargo, justiciario nostro.”1 (Hib. 22.)

51. De fine tenendo; the fine made “tempore domini J. patris nostri.” (Glanv. viii, 6; Hib. 23.)

52. Quare impedit.

53. Writ of right of ward in socage.

54. Writ of right of ward in chivalry.

55. Assize of nuisance; vicontiel or “little” writ of nuisance; limitation “post ultimum reditum domini J. Regis patris nostri de Hybernia in Angliam.” (Cf. Glanv. xiii, 35, 36; Hib. 7.)

56. Ne vexes abbatem contra libertates.

57. Quod permittat for estovers; a justicies.

58. Quod faciat sectam ad hundridum vel molen dinum.

Comment on these two Registers I must for a while postpone; I hope to be allowed to return to the subject on some future occasion.

When we compare these two Registers together, the first remark that occurs to us is, that in substance they are very similar, while in arrangement they are dissimilar. From this we may draw the inference that the official Register in the Chancery had not yet crystallized; or, to put the matter in another way, that very possibly different officers in the Chancery had copies which differed from each other. Indeed, the official Register of the time may not have taken the shape of a book, but may have consisted of a number of small strips of parchment filed together and easily transposed. There is a certain agreement between them even in arrangement. Both have “Right” in the forefront, and occasionally give us the same writs in the same order. One instance of such correspondence is worthy of note, for it will become of interest to us hereafter. The following seems to be, for some reason or another, an established sequence: De nativo habendo, De libertate probanda, De rationabilibus divisis, De superoneratione pasturæ, Replevin, De pace regis infracta (writs for the arrest or attachment of appellees), De homine replegiando, Services and Customs. Traces of this sequence will be found even when the Register, having increased in bulk fifty times over, gets printed in the Tudor days. The writs are arranging themselves in groups: a Writ of Right cluster, an Ecclesiastical cluster, a Liberty and Replevin cluster. But many questions are very open. Shall the Writs of Entry precede or follow the Assizes? Shall they be deemed proprietary or possessory?

Taking our two Registers together, we can form an idea of the writs which were “of course” in the early years of Henry III.; and these we may contrast with the writs which Glanvill gives us from the last years of Henry II. On the whole, we can record a distinct advance of royal justice; but there have been checks and retrogressions. The Writ of Right, properly so called, the Breve de recto tenendo, which commands the feudal lord to do justice, has taken the place of the simple Precipe quod reddat as the normal commencement of a proprietary action for land. This is a victory of feudalism consecrated by the Great Charter. Again, in Glanvill’s day the jurisdiction over testamentary causes had not yet finally lapsed into the hands of the church; twice (vii., 7, xii., 17) he gives us a writ (quod stare facias rationabilem divisam) whereby the sheriff is directed to uphold the will of a testator. This writ we miss in the Registers; the state has had to retreat before the church. We are so apt to believe that in the history of the law all has been for the best, that it is well for us to notice this unfortunate defeat,—for unfortunate it assuredly was, and to this day we suffer the evil consequences which followed from the abandonment by the king’s courts of all claim to interfere with the distribution of a dead man’s chattels. On the other hand, we see that the triumph of feudalism is more apparent than real; it has barred the high road, but royal justice is making a flank march. Glanvill (x., 9) has a writ which lies for a mortgagor against a mortgagee; or, rather, we ought to say for a gagor against a gagee, when the term for which the land was gaged has expired. The alteration of a few words in this will turn it into a writ of entry ad terminum qui præteriit.1 Such a writ of entry is given by our two Registers, and they also give the writ cui in vita applicable for the recovery of land alienated by a married woman. Curiously enough they do not give the writ of entry sur disseisin; though we happen to know that already in 1205 this writ, lying for a disseisee against the heir of the disseisor, had been made a writ of course.2 This is by no means the only sign that the copies of the Register which got into circulation did not always contain the newest improvements. Still, here we see that a foundation has been laid for that intricate structure of writs of entry which will soon be reared. It is very doubtful whether Glanvill knew the procedure by way of attaint for reversing the false verdict of a petty assize; but we find this securely established in our Registers.

Another noteworthy advance is to be seen in the actions which we may call contractual. The Warrantia Cartæ is in use, and so is the Writ of Covenant. We may doubt whether there is as yet any writ as of course which will enforce a covenant not touching land. The typical covenant of the time is what we should call a lease; but Glanvill (x., 8) told us that the king’s court was not in the habit of enforcing “privatas conventiones” agreements, that is, not made in its presence and unaccompanied by delivery of possession. Debt and Detinue are still provided for chiefly by writs of Justicies, directing trial in the county court. “Debt in the Bench” seems, as yet, no writ of course, and the Irish Register shows us that, at least across St. George’s Channel, one had to pay heavily even for a Justicies. The excuse for such exaction, of course, was that no writ was necessary for the recovery of a debt in a local court; royal interference was a luxury. Lastly, we will notice that, as yet, we hear nothing of Account and nothing of Trespass.

The next Register that I shall put in is found in a Cambridge MS. I shall hereafter refer to it as CB. (kk., v. 33). Like the last, it is bound up with a Glanvill, and this, I may remark, is in favor of its antiquity. Edwardian Registers are generally accompanied, not by Glanvill, but by Hengham, or Fet Assavoir or Statutes. On the whole, we may, as I believe, safely attribute this specimen to the middle part of Henry III.’s reign, to the period between the Statute of Merton (1236) and the Statute of Marlborough (1267), and I am inclined to think it older than the Provisions of Westminster (1259). In the following notes of its contents I will give references to the “Pre-Mertonian” Register CA., which I described on a former occasion:—

“Incipiunt Brevia de Causa Regali.”

1. Writ of right with many variations. (CA. 1.)

2. Writ of right de rationabili parte. (CA. 2.)

3. Ne injuste vexes. (CA. 26.)

4. Praecipe in capite. (CA. 3.)

5. Little writ of right secundum consuetudinem manerii.

6. Writs of peace when tenant has put himself on grand assize. (CA. 5.)

7. Writ summoning electors of grand assize, with variations. (CA. 6.)

8. 1 Writ of peace when tenant of gavelkind has put himself on a jury in lieu of grand assize, and writ for the election of such a jury.

9. Pone in an action begun by a writ of right. (CA. 4.)

10. 2Mort d’ancestor, with limitation “post primam coronacionem Ricardi avunculi nostri.” (CA. 16.)

11. Quod permittat for pasture in the nature of Mort d’ancestor, with a variation for a partible inheritance.

12. Nuper obiit.

13. 1 Novel Disseisin, with limitations “post ultimum reditum J. Regis patris nostri de Hibernia in Angliam.” (CA. 14.) Novel Disseisin of pasture. (CA. 15.)

14. 2 Assizes of Nuisance: some being vicontiel, with limitation “post primam transfretacionem nostram in Britanniam.” (CA. 55.)

15. Surcharge of pasture. (CA. 20.)

16. Quo jure for pasture.

17. Attaint in Mort d’ancestor and Novel Disseisin. (CA. 50.)

18. Perambulation of boundaries.

19. 3 Writ of Escheat: claimant being entitled under a fine which limited land to husband and wife and the heirs of their bodies, the husband and wife having died without issue.

20. Darrein presentment. (CA. 40.)

21. Writ of right of advowson. (CA. 42.) A curious variation ordering a lord to do right touching an advowson; the writ is marked “alio modo sed raro.”

22. Quare impedit. (CA. 52.)

23. Prohibition to Court Christian touching advowson. (CA. 41.)

24. Attachment against judges for breach of such prohibition. (B. 45.)

25. Ne admittas personam.

26. Mandamus to admit parson. (CA. 43.)

27. Dower unde nihil habet. (CA. 46.)

28. Dower ad ostium ecclesiae.

29. Dower in London. (CA. 48.)

30. Dower against deforceor.

31. Writ of right of dower.

32. Warrantia cartae. (CA. 10.)

33. De fine tenendo: a fine has been made “tempore J. Regis patris nostri.” (CA. 51.)

34. Juris utrum for the parson. (CA. 49.)

35. Juris utrum for the layman. (CA. 49.)

36. Entry, the tenant having come to the land per a villan of the demandant.

37. Entry ad terminum qui preteriit: the tenant having come to the land per the original lessee. (CA. 11.)

38. Entry, the tenant having come to the land per one who was guardian.

39. Entry cui in vita. (CA. 12.)

40. Entry, the land having been alienated by dowager’s second husband.

41. Entry sur intrusion.

42. Entry ad terminum qui preteriit for an abbot, the demise having been made by his predecessor.

43. Entry sine assensu capituli.

44. Escheat on death of bastard.

45. Entry sur disseisin for heir of disseisee, the defendant being the disseisor’s heir.

46. Entry when the land has been given in maritagium.

47. Entry for lord against guardians of tenant in socage who are holding over after their ward’s death without heir.

48. Entry for reversioner under a fine.

49. Writ of intrusion.

50. Quod capiat homagium. (CA. 13.)

51. False imprisonment: “ostensurus quare predictum A. imprisonavit contra pacem nostram.”

52. Robbery and rape: “ostensurus de robberia et pace nostra fracta, vel de raptu unde eum appellat.” (CA. 22.)

53. Homicide: “attachiari facias B. per corpus suum responsurus A. de morte fratris sui unde eum appellat.” (CA. 23.)

54. De homine replegiando. (CA. 24.)

55. De plegiis acquietandis: “justifices talem quod . . . acquietet talem.” (B. 32.)

56. De plegio non stringendo pro debito: do not distrain pledge while principal debtor can pay. (CA. 32a.)

57. Quod permittat for estovers: “justifices A. quod . . . permittat B. rationabilem estoverium suum in bosco suo quod in eo habere debet et solet.” Variation for right to fish: “justifices A. quod permittat B. piscariam in aqua tali quam in eadem habere debet et solet.” (CA. 57.)

58. Debt: “justifices A. quod . . . reddat B. xij. marcas quas ei debet,” vel “catallum ad valenciam xii. marcarum quas (sic) ei injuste detinet sicut racionabiliter monstrare poterit quod ei debeat, ne amplios,” etc. (CA. 27.)

59. Debt and Detinue before the king’s justices. “Precipe A. quod . . . reddat B. xij. marcas quas ei debet et injuste detinet vel catallum ad valenciam x. marcarum quod ei detinet, et nisi fecerit . . . summone . . . quod sit coram justiciariis nostris . . . ostensurus quare non fecerit.”

60. Replevin. (CA. 21.)

61. Suit to mill: “justifices A. quod faciat B. sectam ad molendinum . . . quam facere debet et solet.” (CA. 58.)

62. Customs and services: “non permittas quod A. distringat B. ad faciendum sectam . . . vel alias consuetudines et servicia que de jure non debet nec solet.”

63. Customs and services: sheriff is not to distrain B. for undue suit to county or hundred court, etc.

64. Customs and services: “justifices A. quod . . . faciat B. consuetudines et recta servicia, que ei facere debet,” etc. (CA. 25.)

65. Customs and services, by precipe: “precipe A. quod faciat B. consuetudines et recta servicia.”

66. Waste: “non permittas quod A. faciat vastum . . . de domibus . . . quas habet in custodia, vel quas tenet indotem,” etc.

67. Waste: attach A. to answer at Westminster why he or she has wasted tenements held in guardianship or in dower, “contra prohibicionem nostram.” (Hib. 51.)

68. 1De nativo habendo: let A. have B. and C. his “natives” and fugitives who fled since the last return of our father King John from Ireland. (CA. 17.)

69. De libertate probanda. (CA. 18.)

70. De racionabilibus divisis. (CA. 19.)

71. De recordo et racionabili judicio. Let A. have record and reasonable judgment in your county court in a writ of right. (CA. 7.)

72. Annuity: “justifices A. quod . . . reddat B. x. sol. quos ei retro sunt de annuo redditu,” etc.

73. Ne vexes. Do not vex, or permit to be vexed, A. or his men contrary to the liberties that he has by our or our ancestor’s charter, which liberties he has used until now. (CA. 56.)

74. Wardship in socage: “justifices A. quod . . . reddat B. custodiam terre et heredis C.,” etc. (CA. 53.)

75. Wardship in chivalry, the guardian claiming the land: “justifices,” etc. Variation when the guardian is claiming the heir’s person. (CA. 54.)

76. Aid to knight son or marry daughter: “facias habere A. racionabile auxilium.” (CA. 34.)

77. Covenant: “justifices A. quod . . . convencionem . . . de tanto terre.” (CA. 36.)

78. Sheriff to aid in distraining villans to do their services.

79. Prohibition against impleading A. without the king’s writ. “R. vic. sal. Precipimus tibi quod non implacites nec implacitari permittas A. de libero tenemento suo in tali villa sine precepto nostro vel capitalis nostri justiciarii.”

80. Ne qui simplacitetur qui vocat warrantum qui infra aetatem est. (CA. 9.)

81. Ne quis implacitetur qui infra aetatem est. (CA. 9.)

82. Quod permittat: “justifices A. quod . . . permittat B. habere quendam cheminum,” etc., vel “habere porcos suos ad liberam pessonam,” etc.

83. Account: “justifices talem quod . . . reddat tali racionbilem compotum suum de tempore quo fuit ballivus suus,” etc.

84. Mesne: “justifices A. quod . . . acquietet B. de servicio quod C. exigit ab eo . . . unde B. qui medius est,” etc. (CA. 33.)

85. De excommunicatis capiendis. (CA. 35.)

86. Prohibition to ecclesiastical judges against holding plea of chattels or debt “nisi sint de testamento vel matrimonio.” (CA. 30.)

87. Prohibition to the party in like case.

88. Attachment on breach of prohibition. (CA. 31.)

89. Prohibition in cases touching lay fee. (CA. 28.)

90. Recordari facias, a plea by writ of right in your county court.

91. 1Quare ejecit infra terminum. Breve de termino qui non preteriit factum per W. de Ralee: “Si A. fecerit te securum, etc. . . . summone, etc., B. etc., ostensurus quare deforciat A. tantum terre . . . quam D. ei demisit ad terminum qui nondum preteriit infra quem terminum predictus (D) terram illam predicto B. vendidit occasione cujus vendicionis predictus B. ipsum A. de terra illa ejecit ut dicit,” etc.

92. 2“Breve novum factum de communi assensu regni ubi de morte antecessorum deficit.” This is the writ of cosinage.

93. 3De ventre inspiciendo.

94. “Novum breve factum per W. de Ralee de redisseisina super disseisinam et est de cursu.” Sheriff and coroners are to go to the land and hold an inquest, and if they find a redisseisor to imprison him.

95. 4“Novum breve factum per eundem W. de averiis captis et est de cursu.” After a replevin and pending the plea, the distrainor has distrained again for the same cause . . . “predictum A. ita per misericordiam castiges quod castigacio illa in casu consimili timorem prebeat aliis delinquendi.”

96. “De attornato faciendo in comitatibus, hundredis, wapentachiis de loquelis motis sine breve Regis.” A writ founded on cap. 10 of the Statute of Merton. Variation when the suit was due to a court baron.

97. Prohibition to ecclesiastical judges in a suit touching tithes.

98. Writ directing the reception of an attorney in an action. (CA. 37.)

99. Precipe in capite. (CA. 3.)

100. Writs directing sheriff to send knights to view an essoinee and hear appointment of attorney. (CA. 38, 39.)

101. Writ to the bishop directing an inquest of bastardy, the plea being one of “general bastardy.”

102. Writ of entry sur disseisin, the defendant having come to the land per the disseisor.

103. Quod permittat for common by heir of one who died seized.

104. Quare duxit uxorem sine licencia. Quare permisit se maritari sine licencia.

105. 1Monstraverunt, for men of ancient demesne.

106. Removal of plea from court baron into county court on default of justice.

107. Surcharge of pasture; “summone . . . B. quod sit . . . ostensurus quare superhonerat pasturam.” (CA. 20.)

108. Patent appointing justices to take an assise.

109. Prohibition to ecclesiastical judges against entertaining a cause in which B. (who has been convicted of disseising A.) complains that A. has “defamed his person and estate.”

110. De odio et hatia.

111. Writ of extent. Inquire how much land A. held of us in capite.

112. Mainprise, where inquest de odio et hatia has found for the prisoner.

113. Writ of seisin for an heir whose homage the king has taken.

114. Writ of inquiry as to whether the king has had his year and a day of a felon’s land.

115. Warrancia diei, sent to the justices.

116. Extent of land of one who owes money to the Jews.

117. Prohibition against prosecuting a suit touching advowson in Court Christian.

118. Writ to bishop directing an inquiry when bastardy has been specially pleaded: “inquiras utrum A. natus fuit ante matrimonium vel post.”

119. Writ announcing pardon of flight and outlawry.

120. Writ permitting essoinee to leave his bed. Dated A. R. 33.

121. Abbot of N. has been enfeoffed in N. by several lords who did several suits to the hundred court. You, the sheriff, are not to distrain the abbot for more suits than one “quia non est moris vel juri consonum quod cum plures hereditates in unicum heredem descenderint vel per acquisicionem aliquis possideat diversa tenementa quod pro illis hereditatibus aut tenementis diversis, ad unicam curiam fiant secta diversa.” Dated A. R. 43.1

Our first observation would be, that the Register has quite doubled in bulk since we last saw it; and our second should, as I think, be, that chronology has had something to do with the arrangement of the specimen that is now before us. The last two formulas are dated, and probably constituted no part of the Register that was copied, but were added to it, having been transcribed from writs lately issued. But leaving these two last formulas out of sight, I think that the last thirty writs or thereabouts are, for the most part, new writs tacked on by way of appendix to the older Register. The line might be drawn between No. 90 and No. 91. The latter of these, the very important Quare ejecit infra terminum, is expressly ascribed to William Raleigh, Bracton’s master, whose judicial activity came to an end in 1239. Then No. 92, the Writ of Cosinage, is “breve novum,” and we know that this was conceded by a council of magnates in 1237, and was penned by Raleigh.2 Then again, No. 94 is attributed to Raleigh. It is the Writ of Redisseisin, given by the Statute of Merton. The last of this group of “Actiones Raleighanæ” (if I may use that term) deals with the recaption of a distress pending the action of replevin; in spirit it is allied to the Redisseisin.3 The next writ, No. 96, is given by the Statute of Merton. The prohibition in tithe suits, NO. 97, is the centre of a burning question; and so is No. 118, the writ directing the bishop to say whether a child was born before or after the marriage of its parents. One may be surprised to find this writ at all, after the flat refusal of the bishops given at the Merton Parliament. Of the other writs in this part of the Registrum, we may, I think, say that they form an appendix, and are not too carefully made, since some of them appeared in the earlier part of the formulary. Others may be writs newly invented, or old writs that have only of late become “writs of course.” The Monstraverunt for men of ancient demesne, a writ of critical importance in the history of the English peasantry, is no new thing; but very possibly, until lately, it could not be obtained until the matter had been brought under the king’s own eye, or at least his chancellor’s eye. The same may, perhaps, be said of the equally important De odio et hatia.

In the next place, we see one of the causes at work, which, in the course of time, swells the Register of Original Writs to its great bulk. A group of what we may call fiscal or administrative writs have obtained admission among the writs by which litigation is begun. At present it is small: it includes two writs for “extending” land, and a writ directing livery to an heir whose homage the king has taken; in course of time it will become large.

But turning to the formulas of litigation, we see already a large variety of writs of entry; though as yet the tale is not complete, for writs “in the post” have not yet been devised, and would, perhaps, be resented by the feudal lords. The Assize of Mort d’Ancestor is now supplemented by Nuper obiit and Cosinage. We see signs of growth in the department of Waste. We have something very like a Formedon. Annuity and Account have been added to the list of personal actions, but Trespass is yet lacking.

A few words about Trespass: The MS. registers that I have seen, fully bear out the opinion that has been formed on other evidence as to the comparatively recent origin of this action.1 Glanvill has nothing that can fairly be called a writ of Trespass. His nearest approach to such a writ is “Justicies,” ordering the sheriff to compel the return of chattels taken “unjustly and without judgment;” but the chattels have been taken in the course of a disseisin, and the plaintiff has already succeeded in an Assize.1 In later days we do not find this writ; its object seems to have been obtained by the practice of giving damages in the Assize.2 But already, in John’s reign, we find a few actions which we may call actions of trespass. In some of these, where there has been asportation or imprisonment, the true cause of action in the royal court seems to be that which our forefathers knew as the “ve de naam;” “vetitum naami;” the refusal to deliver chattels or imprisoned persons upon the offer of a gage and pledge,—a cause of action which had definitely become a plea of the crown.3 Also, it is in some instances a little difficult to distinguish an action of Trespass from an appeal of felony. Just the dropping out of a single word might make all the difference. Thus, on a roll of Richard’s reign A. is said to appeal B., C., and D., for that they came to his land with force and arms, and in robbery (“felony” is not mentioned) and wickedly, and in the king’s peace carried off his chattels, to wit turves; whereupon B. defends the felony and robbery, and says that he carried off the turves in question from his own freehold.4 Attempts were made to use the appeal of felony as an action for trying the title to land,—a very summary action it would have been. But the court of John’s reign would not suffer this.1 On the rolls of the first half of Henry III.’s reign actions of Trespass appear, but they are still quite rare. The advantages of an action in which one can proceed to outlawry are apparent,2 but something seems to be restraining plaintiffs from bringing it. The novelty of the procedure is shown by the uncertainty of the courts as to its scope, particularly when the action relates to land, and title is pleaded by the defendant. We actually find an action of trespass leading to a grand assize. If title is to be determined at all in such an action, it must be determined with all the solemnity appropriate to a Writ of Right.3 Bracton, however, who unfortunately has left us no account of this action, shows a reluctance to allow this writ “quare vi et armis” to be used for the purpose of recovering land,4 and a little later we find it repeatedly said that a question of title cannot be determined by such a writ.5 So late as Edward II.’s reign it was necessary to assert against a decision to the contrary that in an action de bonis asportatis the judgment must be merely for damages and not for a return of the goods.6

But meanwhile, Trespass had become a common action. This, on the evidence now in print, seems to have taken place suddenly at the end of the “Baron’s war.” In the PlacitorumAbbreviatio we suddenly come upon a large crop of such actions for forcibly entering lands and carrying off goods, and in very many of these the writ charges that the violence was done “occasione turbacionis nuper habitæ in regno.” This may suggest to us that in order to suppress and punish the recent disorder, a writ which had formerly been a writ of grace, to be obtained only by petition supported by golden or other reasons, was made a writ of course,—an affair of every-day justice. Such MS. registers as I have seen seem to favor this suggestion. I have seen no register of Henry III.’s reign which contains a writ of Trespass, and it is not to be found even in all registers of his son’s reign.

Let us pass on to a new reign. Registers of Edward I.’s time are by no means uncommon. I believe that we have at Cambridge no less than seven which, in the sense defined above, may be ascribed to that age, and there are many at the British Museum. The most meagre of them is far fuller than those Registers of Henry III.’s reign of which we have spoken. To give an idea of their size I may mention a MS. at the Museum (Egerton 656), in which the writs are distributed into groups of sixty; there are seven perfect groups followed by a group which contains but fifty-one members; thus in all there are four hundred and seventy-one writs. This increase in size is of course largely due to the legislative activity of the reign, and this of course makes the various specimens differ very widely from each other in detail. Still I think that I have seen enough to allow of my saying that very early in the reign the general arrangement of the Register had become the arrangement that we see in the printed book. A Register of Edward’s day is distinctly recognizable as being the same book that Rastall published under the rule of Henry VIII. Not to lose myself in details about statutory writs, I will draw attention to one principle which may help towards a classification of these Edwardian Registers. That principle is expressed in the question—Does Trespass appear at all, and if so where? There are specimens which have no Trespass; there are others which have Trespass at the end, in what we may regard as an appendix; there are others again which have Trespass in its final place, namely, in the very middle of the book.

Next I will give a short description of a specimen which I am disposed to give to the earliest years of Edward I. It is contained in a Cambridge MS. (Ee. i. 1) which I will call CC, and the following notes of its contents may be enough. For the purpose of making its scheme intelligible I have supposed it to consist of various groups of writs and have given titles to those groups, but it will be understood that the MS. gives the writs in an unbroken series, a series unbroken by any headings or marks of division.

1. The Writ of Right Group. This includes the Writ of Right de rationabile parte; Writ of Right of Dower; Praecipe in capite; Little Writ of Right; Writs of Peace, and writs summoning the Grand Assize or Jury in lieu of Grand Assize; writ for viewing an essoinee; writs announcing appointment of attorney; Warrantia diei; Licencia surgendi; Pone; Monstraverunt.

2. The Ecclesiastical Group. Writ of Right of Advowson; Darrein Presentment: Quare impedit; Juris utrum; Prohibition to Court Christian in case of an advowson; Prohibition to Court Christian in case of chattels or debts; Prohibition against Waste;1 Prohibition in case of lay fee. Then follow seven specially worded prohibitions introduced by the note “Ostensis formis prohibicionum que sont de cursu patebit inferius de eis que sunt in suis casibus formate et sunt de precepto.” After these come the De Excommunicato capiendo and other writs relating to excommunicates.

3. The Replevin and Liberty Group. Replevin; a writ directed to the coroners where the sheriff has failed in his duty is preceded by the remark “primo inventum fuit pro Roberto de Veteri Ponte;” De averiis fugatis ab uno comitate in alium; De averiis rescussis; De recaptione averiorum; Moderata misericordia; De nativo habendo, the limitation is “post ultimum reditum Domini J. Regis avi nostri de Hibernia in Angliam;” De libertate probanda; Aid to distrain villans; De tallagio habendo; De homine replegiando; De minis, i. e. a writ conferring a special peace on a threatened person.1De odio et atia (with the remark that the clause beginning with nisi was introduced by John Lexington, Chancellor of Henry III.).

4. The Criminal Group. Appeal of felony evoked from county court by venire facias; writ to attach one appealed of homicide by his body; writs to attach other appellees by gage and pledge.

5. A Miscellaneous Group. De corrodio substracto; De balliva forrestarii de bosco recuperanda; Quod attachiet ipsum qui se subtraxit a custodia; Quod nullus implacitetur sine precepto Regis. Various forms of the Quod non permittat and Quod permittat for suit of mill, etc.

6. Account. Account against a bailiff (“Et sciendum est quod filius et heres non habebit hoc breve super ballivum domini [corr. antecessoris] sin, set ut dicitur executores possunt habere hoc breve super ballivum tempore quo fuit in obsequio defuncti;” it proceeds to give a form of writ for executors in the king’s court and then adds, “Et hoc breve potest fieri ad placitandum in comitatu. Verumptamen casus istorum duorum brevium mere pertinet ad curiam cristanitatis racione testamenti”).

7. Group relating chiefly to Easements and the duties of neighbors. Aid to knight eldest son; De pontibus reparandis—muris—fossatis; De curia claudenda; De aqua haurienda; De libero tauro habendo; De racionabile estoverio; De chimino habendo; De communa, with variations; Admeasurement of pasture; Quo jure; De racionalibus divisis; De perambulacione; De ventre inspiciendo.

8. Mesne, Annuity, Debt, Detinue, etc. De medio; De annuo reditu; De debito (only two writs of debt, one a precipe, the other a justicies; the former has “debet et detinet,” the latter “detinet”); Ne plegii distringantur quamdiu principalis est solvendus; De plegiis acquietandis; De catallisreddendis; (Detinue by precipe and by justicies); Warrantia cartae.

9. Writs of Customs and Services.

10. Covenant and Fine. The covenant in every case is “de uno messuagio.”

11. Wardship. De custodia terre et heredis; De corpore heredis habendo; De custodia terre sine corpore; Aliter de soccagio. “Optima brevia de corpore heredis racione concessionis reddende [sic] executoribus alicui defuncti.”

12. Dower. Dower unde nihil; De dote assensu patris; De dote in denariis; De dote in Londonia; De amensuracione dotis.

13. Novel Disseisin. Novel disseisin, the limitation is “post primam transfretacionem domini H. Regis anni1 [sic] nostri in Brittanniam”; De redisseisina; Assize of nuisance; Attaint.

14. Mort d’Ancestor, and similar actions. Mort d’Ancestor, (no period of limitation named); Aiel; Besaiel (Multi asserunt quod hoc breve precipe de avio et avia tempore domini H. Regis filii Regis Johannis per discretum virum dominum Walterium de Mertone2tunc secretorium clericum et prothonotorium [sic] cancellarie domini Regis et postmodum cancellarium primo fuit adinventum quia propter recentem seisinam et possessionem et discrimina brevis de recto vitandum ab omnibus consilariis et justiciariis domini Regis est approbatum et justiciariis demandatum quod illud secundum sui naturam placitent”); Cosinage; Nuper obiit (“Et hoc breve semper est de cursu ad bancum in favorem petentis seisinam quod antecessor petentium habuit de hereditate sua et similiter ut vitentur dilaciones periclose que sunt in breve de recto.”)

15. Quare ejecit infra terminum, ascribed to Walter of Merton;3 Writs of Escheat.

16. Entry and Formedon. Numerous Writs of Entry, the degrees being mentioned (no writ “in the post”); Formedon in the Reverter; and a very general Formedon in the Descender.1

17. Miscellaneous Group. License to elect an abbot; petition for such license; form of presenting an abbot elect to the King; pardons; grants of franchises; a very special writ for R. de N. impleaded in the court of W. de B.; De languido in anno bissextili (concerning an essoin for a year and a day in leap year); Breve de recapcione averiorum post le Pone; Quod non fiat districtio per oves vel averiis [sic] carucarum; Ne aliquis faciat sectam ad comitatum ubi non tenetur; Ne faciat sectam curie ubi non tenetur; some specially worded Prohibitions.

In substance this MS. seems to represent the Register as it stood in the very first years of Edward I. I do not think that any of the statutes of his reign have been taken into account and doubt whether even the Statute of Marlborough (1267) has yet had its full effect. There is no Writ of Entry “in the post” and some writs about distress and suit of court founded on statutes of Henry III. still remain unassimilated in a miscellaneous appendix. The character of that appendix provokes the remark that the copyists of the Register may often have picked and chosen from among the miscellaneous forms of the Chancery those which would best suit the special wants of themselves or their employers. The congé d’élire, for example, looks out of place, and the petition for such a license still more out of place; but this is a monastic manuscript and these formulas were useful in the abbey.

I said above that Glanvill’s scheme of the law, or rather his scheme of royal justice, might be displayed by some such string of catch words as the following: “Right” (that is proprietary right in land), “Church,” “Liberty,” “Dower,” “Inheritance or succession,” “Actions on Fines,” “Lord and Tenant,” “Debt,” “Attorney,” “Justice to be done by feudal lords and sheriffs,” “Possession,” “Crime.” Now I will venture the suggestion that the influence of his book is apparent on the face of the Register (CC) and all the later Registers. It begins with “Right” while it puts “Possession,” a title which now includes the Writs of Entry as well as the Assizes, at the very end. After “Right” comes “Church,” and after “Church” comes “Replevin and Liberty,” a title the unity of which is secured by the fact that when a man is wrongfully deprived of his liberty he ought to be replevied. The middle part of the Register is somewhat chaotic, and so it always remains; but it is really less chaotic than it may seem to some of us, whose heads are full of modern notions. We seem indeed to be carried backwards and forwards across the line which divides “personal” and “real” actions; Account, Annuity, Debt, Detinue, and Covenant are intermixed with actions founded on feudal dues and actions founded on easements, writs for suit of mill, suit of court, repair of bridges, actions of Mesne, actions of Customs and Services. The truth, as it seems to me, is that the line between “real” and “personal” actions as drawn in later books is, at least when applied to our medieval law, a very arbitrary line. For example, there is an important connection between an action in which a surety sues the principal debtor (de plegio acquietando) and an action of Mesne, in which the tenant in demesne sues the intermediate lord to acquit or indemnify him from the exaction of the superior lord; this connection we miss if we stigmatize “Mesne” as a “real action” just because it has something to do with land. The action of Debt, again, is founded on a debet; but so is the action for Customs and Services, at least in some of its forms. However I am not concerned to defend the Register.

In Edward I.’s day, partly it may be under the influence of Glanvill’s book, it has become an articulate body. It will never hereafter undergo any great change of form, but it will gradually work new matter into itself. Such new matter will for a while lie undigested in miscellaneous appendixes, but in course of time it will become an organic part of the system. I will mention the most striking illustration of this process.

Hitherto we have never come across that action of Trespass which is to be all important in later days and it seems to me a very noteworthy fact that there are Registers of Edward I.’s day that omit this topic. It gradually intrudes itself. First we find it occupying a humble place at the end of the collection among a number of new writs due to Edward’s legislative zeal. Thus, to choose a good example, there is in the Cambridge Library a MS. (Ll. iv. 18) containing a Register which is very like that (Ee. i. 1.) which we have last described. But when it has done with the Writs of Entry, it turns to Formedon, gives writs in the Reverter, Descender, and Remainder, and a number of specially worded writs of Formedon which bear the names of the persons for whom they were drawn:—we have Bereford’s formedon, Mulcoster’s, and Mulgrave’s; clearly the Statute of Westminster II. is in full operation. Then upon the heels of Formedon treads Trespass. It is a simple matter as yet, can be represented by one writ capable of a few variations—insultum fecit et verberavit, catalla cepit et asportavit, arbores crescentes succidit et asportavit, blada messuit et asportavit, separalem pasturam pastus fuit, uxorem rapuit et cum catallis abduxit. Trespass disposed of, we have Ravishment of Ward; Contra formam feffamenti; Ne quis destringatur per averia carucae; Contribution to suit of court; Pardons; Protections; De coronatore eligendo; De gaola deliberanda; De deceptione curiæ; cessavit per biennium; carta per quam patria de Ridal disafforestatur; Breve de compoto super Statutum de Acton Burnell, and so forth and so forth, in copious disorder. The whole Registrum fills fifty-two folios, of which no less than the last fourteen are taken up by the unsystematized appendix. Another MS. (Ll. iv. 17) gives a Register of nearly the same date, perhaps of somewhat earlier date, for it does not contain the new Formedons. This again has an unsystematized appendix, and in that appendix Trespass is found. The place at which it occurs may be thus described:—the part of the Register that has already become crystallized, the part which ends with the Writs of Entry, having been given, we have the following matters: Pardon: License to hunt; Grants of warren, fair, market; De non ponendo in assisam, Writ on the Statute of Winchester; Leap year; Inquests touching the King’s year and day; Contribution; Beau pleader; Trespass; Gaol Delivery; Intrusion; congé d’élire; Quo Warranto; Trespass again; Writ on the Statute of Gloucester; Mortmain; Trespass again (pro cane interfecto); ne clerici Regis compellantur ad ordines suscipiendos,—as variegated a mass as one could wish to see. Other MSS. of the same period have other appendixes with Trespass in them. They forcibly suggest that the Register was falling into disorder, the yet inorganic part threatening to outweigh the organic.

There came a Chancellor, a Master, a Cursitor with organizing power; Trespass could no longer be treated as a new action; a place had to be found for it, and a place was found. It may be that this was done under Edward I.; certainly in his son’s reign it seems an accomplished fact. What was the place for Trespass? If the reader will look back at our account of the Register which we have called CC, he will find that we have labelled the third group of writs as “Replevin and Liberty,” the fourth group as “Criminal.” The connection between Replevin and Liberty is obvious, it is seen in the writ De homine replegiando, the writ for replevying a prisoner. The transition from Liberty to Crime is mediated by the writ De odio et atia, a writ for one who says that he is imprisoned on a false accusation of crime. Now when the time had come for taking up Trespass into the organic part of the Register, this was the quarter in which its logical home might be found. It was naturally brought into close connection with “crime.” Throughout the Middle Ages, Trespass is regarded as a crime; throughout the Year Books the trespasser is “punished;” and it is a very plausible opinion that the earliest actions of trespass grew out of appeals of felony; they were, so to speak, mitigated appeals, appeals with the “in felonia” omitted, but with the “vi et armis,” and the “contrapacem” carefully retained. Already in the Register that I have called CB, a writ of false imprisonment has come in immediately before the writ for attaching an appellee. Then, in CC, a writ De minis has forced its way into the “Replevin and Liberty Group” so as to precede the writs against an appellee. This writ De minis, commanding the sheriff to confer the king’s peace, the king’s “grith” or “mund” we may say, on a threatened person, and to make the threatener find security for the peace is the herald of Trespass: De minis—De transgressione, this becomes a part of our “legalis ordo.”

The result in the fully developed Register is curious, showing us that the arrangement of the book is the resultant of many forces. Let us see what follows Waste. We have the De homine replegiando, then the Replevin of chattels, then, returning to men deprived of liberty, the De nativo habendo and the De libertate probanda; these naturally lead to the writ ordering the sheriff to aid a lord in distraining his villans. There follows the De scutagio habendo. Why should this come here? Because in older times villanage had suggested tallage; this had been the place for a De tallagio habendo and then tallage had suggested scutage. Then in the printed Register we have the De minis; and then an action against one who has given security for the peace and has broken it by an assault, brings upon us the whole subject of Trespass, which with its satellites now fills some forty folios, some eighty pages. And then what comes next? Why De odio et atia; we are back again at that topic of “Liberty and Replevin” whence we made this long digression. Meanwhile these criminal writs, these writs for attaching appellees which originally attracted Trespass to their quarter of the Register, have disappeared as antiquated, since persons accused of felony now get arrested without the need of original writs.

Similar measures were taken for writing into appropriate places the result of the legislation of Edward I.; but the formation of new writs was constantly providing fresh materials. Some of these found a final resting-place at the very end of the Register, but for most of the statutory writs, a home was found in the middle. The occurrence of the Assize of Novel Disseisin marked the beginning of a new and logically arranged section of the work, a section devoted to Possession. It is between Dower and Novel Disseisin that the newer statutory writs are stored.

As already said, the printed Register is full of notes and queries. Many of these are ancient, some as old as the reign of Edward I. Speaking broadly one may say that the Latin notes are ancient, the French notes comparatively modern. Some of them must have been quite obsolete in the reign of Henry VIII.; but the “vis inertiae” preserved them. When once they had got into MSS. they were mechanically copied.

During the whole of the fourteenth century the Register went on growing and by the aid of MSS., we can still catch it in several stages of its growth. Some of these MSS. show a Register divided into chapters, and thus make it possible for us to perceive the articulation of the book. As the printed volume gives us no similar aid, I will here set out the scheme of a Register which I attribute to the reign of Richard II. It is contained in a Cambridge MS. (Ff. v. 5). I the right-hand column I give the catch-words of its various chapters; in the left-hand column I refer to what I take to be the scheme of CC, the Register from the beginning of Edward I.’s reign, of which mention has already been made.

A Register from the end of the fourteenth century is in point of form the Register that was printed in Henry VIII.’s day. If I might revert to my architectural simile, I should say that the cathedral as it stood at the end of Richard II.’s reign was the cathedral in its final form; some excrescent chantry chapels were yet to be built but the church was a finished church and was the church that we now see. In the printed book we can detect but very few signs of work done under Tudor or even under Yorkist kings, and though the Lancastrian Henries have left their mark upon it, still that mark is not conspicuous. I should guess that the last occasion on which any one went through the book with the object of adding new writs and new notes occurred late in the reign of Henry VI.1 On the other hand we constantly find references to decisions of Richard II.’s time, and there are many signs that the book was revised and considerably enlarged in the middle of Edward III.’s reign; allusions to decisions given between the tenth and twentieth years of the lastnamed king are particularly frequent, and we read more of Parning than of any other chancellor. This is a curious point. Robert Parning, as is well known, was one of the very few laymen, one of the very few common lawyers, who during the whole course of medieval history held the great seal. He held it for less than two years; he became chancellor in October, 1341 and died in August, 1343; yet during this short period, he stamped his mark upon the Register. The policy of having a layman (a “layman,” that is, when regarded from the ecclesiastical not the legal point of view) as chancellor was very soon abandoned; few if any laymen were endowed with the statecraft and miscellaneous accomplishments required of one who was to act as “principal secretary of state for all departments.” But within the purely legal sphere, as manager of the “officina brevium,” a great lawyer who had already been chief justice may have found congenial work. After all, however, it may be chance that has preserved his name in the pages of the Register; just in his day some clerk may have been renovating and recasting the old materials and thus have done for him what some other clerk a century earlier did for William Raleigh.

During the fifteenth century the Register increased in bulk but except in one department there seem to have been but few additions made to the formulas of litigation; the matter that was added consisted, if I mistake not, very largely of documents of an administrative kind,—pardons, licenses to elect and other licenses, letters presenting a clerk for admission, writs relating to the management of the king’s estates, writs for putting the king’s wards in seisin, and so forth, lengthy formulas which conceal what I take to be the real structure of the Register. As a final result we get some seven hundred large pages, whereas we started in Henry III.’s day with some fifty or sixty writs capable of filling some ten or twelve pages. The department just mentioned as exceptional is of course the department of Trespass. Here there has been rapid growth; but I do not think that the printed book can be taken as fairly representing the law of the time when it was printed, namely 1531. It draws no line at all between “Trespass” and “Case.” The writs that we call writs of “Trespass upon the special Case” are mixed up with the writs which charge assault, asportation, and breach of close, and are very few. Writs making any mention of assumpsit are fewer still, and I think that there is but one which makes the non-feasance of an assumpsit a ground of action.1 I should suppose that the practice of bringing actions by bill without original writ checked the accumulation of new precedents in the Chancery, and it seems an indubitable fact that the invention of printing had some evil as well as many good results; men no longer preserved and copied and glossed and recast the old manuscripts. But when all is said it is a remarkable thing that a Register which certainly did not contain the latest devices should have been printed in 1531, reprinted in 1595, and again reprinted in 1687. The consequence is that Trespass to the last appears as an intruder. No endeavor has been made to reduce the writs that come under that head to logical order. The forces which have determined the sequence of these writs seem chiefly those which I have called “chronology” and “mechanical chance;” as new writs, as they were made, were copied on convenient margins and inviting blank pages. There has been no generalization; the imaginary defendant is charged in different precedents with every kind of unlawful force, with the breach of every imaginable boundary, with the asportation of all that is asportable, while the now well-known writs against the shoeing smith who lames the horse, the hirer who rides the horse to death, the unskilful surgeon, the careless innkeeper creep in slowly amid the writs which describe wilful and malicious mischief, how a cat was put into a dove-cote, how a rural dean was made to ride face to tail, and other ingenious sports. It would be interesting could we bring these Registers to our aid in studying the process whereby Trespass threw out the great branch of Case, and Case the great branch of Assumpsit; but the task would be long and very difficult, because the Registers are so many, and unless we compare all of them our means of fixing their dates are few and fallible. Of course, if the task concerned the history of Roman Law it would be performed; but we are all fully persuaded, at least on this side of the Atlantic, that our own forefathers were not scientific.

37.

AN ACTION AT LAW IN THE REIGN OF EDWARD III.1

By Luke Owen Pike2

IT has been suggested that a paper on the relation of the reports of cases in the Year Books to the records of the same cases found among the Public Records might be of some interest to those readers who are giving attention to the history of law and of legal procedure. In the following pages an attempt is made to show, not in very great detail (for the details would be endless), but in a general way, in what manner the two sources of information differ, and why.

The report and the record were drawn up for two wholly different purposes. The report was intended for the use of the legal profession, including the judges. It was designed to show general principles of law, pleading, or practice. It was, of course, always a report of a particular case, but of one reported solely because it contained, or was supposed to contain, matter of general use. For this reason, the names of the parties and of places were frequently omitted, or represented by letters chosen at hazard, or, if given at all, given most inaccurately. They were not the facts which the lawyer wished to know, and would not help to guide him in his pleading, except in cases in which an argument turned upon a description or a misdescription.

The record, on the other hand, was drawn up for the purpose of preserving an exact account of the proceedings in the particular case, in perpetuam rei memoriam, but only in the form allowed by the court. The report contains not only the pleadings eventually accepted, but often the reasons or arguments which preceded each, and the reasons or arguments for which other pleadings were disallowed. The record contains no arguments, and no pleadings but those actually allowed. Although it is possible to see in the report the pleadings which were admitted, they are not verbally identical with the corresponding entries on the roll. The pleadings in court were in French, but those entered upon the roll by the clerk or registrar were in Latin.

For these reasons, it frequently happens that the record in Latin differs widely from the report in French, each containing matter which is absent from the other, each serving to illustrate the other, and, for historical purposes, neither being complete without the other. The report tells how the judges and counsel addressed each other, the courtesy which they showed or did not show to each other, their education according to the principles on which education was conducted in those days, and sometimes, though rarely, their powers of making a joke. The record helps towards none of these things; but, though wanting the life and action of the report, brings to light, in a calmer fashion, innumerable details without which a perfect picture of the social condition of the country cannot be drawn.

It will, perhaps, be asked, how can the record of any case in any term be identified as that which corresponds with any particular report of the same term, when the names of persons and places are not stated in the report itself? The task does, indeed, at first seem hopeless, and certainly presents considerable difficulties. It can nevertheless be accomplished, when the report is of any importance, though the search has to be made through a roll consisting of five or six hundred skins of parchment, closely written on both sides, without index, and with no guide except the name of the county in the margin, which, in the case supposed, is no guide at all.

The report, let us suppose, is a report of an action of formedon in the descender brought by A against B, in respect of lands in C, the donor having been D. It is, of course, necessary to know how an action of this kind is entered on the roll, the form in which the contents of the original writ are represented, and where the count begins. The roll is then examined until a formedon in the descender is found. This is compared with the admitted pleadings in the report, and it will usually be found either to agree so closely as to leave no reasonable doubt that the case is the same, or to differ so widely as to leave no reasonable doubt that it is not. In the latter event, further search must be made, and so on, from case to case, until the one sought is discovered.

As the different kinds of actions were numerous, the number of actions of any one kind on the roll of any particular term is necessarily limited. There were three kinds of actions of formedon alone (in the descender, in the reverter, and in the remainder), each entered in a different form according to its nature. In looking for any particular case, technical knowledge consequently becomes its own reward, and abridges a labor which would otherwise be absolutely deterrent. The reward, too, is substantial, because not only do A, B, and D become persons with real names and additions, and not only does C become a known parish in an ascertained county, but the doubts left by corruptions or discrepancies in the manuscripts of the reports are removed, and the actual pleadings and the actual judgment are made clear beyond all possibility of question.

General principles are often most easily apprehended through particular instances. Let us now follow a case from beginning to end. A dispute arises in relation to land. The person who feels aggrieved, or his adviser, goes to the Chancery and sues out the original writ which is supposed to be applicable to the particular grievance. The Court of Common Pleas or Common Bench is the court which has jurisdiction in pleas of land, and the tenant (or party opposed to the demandant) is or ought to be summoned or warned by the sheriff, by due process, to appear. A comparatively simple case, which may serve our purpose, occurred in Michaelmas Term, 15 Edward III. (No. 71). It was a case of cessavit,—one in which a religious house, having had lands given to it on condition of performing certain services, had, as alleged, ceased to perform them for a period of two years. The demandant, in an action of this nature, hoped, by establishing his claim, to recover seisin of the lands in respect of which the services were due.

From the report of this case we learn that the tenant was the Abbot of Creake; but it does not tell us either who was the demandant, or where the lands were situated. In the record1 it appears that the demandant was Margaret, late wife of John de Roos, and that the lands were in Gedney, in the county of Lincoln. In the report, the services by which the abbot was supposed to hold are said to be those of finding certain chaplains to sing divine services in her chapel (that is to say matins, mass, vespers, etc.), and of feeding certain poor persons, who were to receive daily certain loaves, etc., as well as “by a certain rent.” No further details are given. In the count, however, as entered on the roll, there is far more information, and that of a character which illustrates the life of the people. The demandant counted that the abbot held of her by fealty and the service of three shillings per annum, and by the service of finding one chaplain who was to celebrate daily in the chapel of Saint Thomas the Martyr, situate in a certain messuage which was formerly John Dory’s, divine services, which include not only matins, mass, and vespers, but certain prayers named, and others. The feeding of certain poor persons is seen to be the sustenance of five poor persons daily; that is to say, finding for each of them daily one loaf of the weight of fifty solidi, with porridge and ale, and finding a dish of meat, or fish, or other food, according to the day, between two of them, and half a dish for the fifth. Each of them was to have also a cloth tunic, suitable to his condition, every other year.

After the count, on the other hand, many matters appear in the report which are not on the roll. Counsel for the abbot, carefully guarding himself against any admission that he is tenant of the freehold or holds of the demandant, pleads in abatement of the count or declaration, which, he says, is not warranted either by statute or by common law. He complains that the demandant’s counsel has included in the same count or declaration two different kinds of service, the cesser of which would produce two different effects. The tender of the arrears of the secular services might save the tenancy, whereas no tender could be made of the arrears of the spiritual services, the cesser of which would involve a forfeiture. It must, for instance, be obvious that the arrears of rent could be paid, whereas the omission of the daily performance of divine services in a chapel could never be made good in respect of days which had passed. Counsel for the demandant then says the exception taken applies to the action as commenced by a writ in the common form, because, if the count is not allowed, the particular action comes to an end. Counsel for the abbot practically accepts this argument, repeating that the count cannot be maintained on a common writ, and that the demandant ought to have had a special writ applicable to the particular case. Counsel for the demandant then argues by the analogy of such services as reapings and ploughings, for which a cessavit lies, even though arrears be tendered. Counsel for the abbot declines to discuss that point, but repeats that services of two different kinds are included in one declaration or count, whereas by the Statute of Gloucester (c. 4) one writ is given in respect of one kind of services, and by the Statute of Westminster the Second (c. 41) another writ is given in respect of the other kind. The chief justice here decides the point in favor of the demandant, saying that there cannot be two writs in this case, and that the plea is, in fact, to the action of cessavit.

Counsel for the abbot then pleads non-tenure: “We are not tenants of the freehold; ready, etc.” Counsel for the demandant attempts to deprive him of this plea, on the ground that he has already pleaded to the action by his previous plea in abatement of the count. The court, however, holds otherwise. Counsel for the demandant then argues that this general plea of non-tenure is not good without a specific allegation that the tenant does not hold of the demandant: “In this writ of cessavit, which is taken on the cesser and on the tenancy, if he take his plea by way of disclaimer in the freehold, it is no answer unless he say that he does not hold of us, and so take his plea to the action, or unless he admit that he holds of us as mesne, but say that the writ does not lie because another is tenant of the freehold.” Counsel for the abbot easily demolishes this argument, saying: “If I be not tenant of the freehold, whether I hold of you or not, the writ does not lie. Will you accept my averment that the abbot is not tenant of the freehold?” The report shows further only that issue was joined on this point.

The count, we may be sure, was not entered upon the roll until it had been held good by the court; but there was no necessity to enter the objections which were insufficient to abate it. In like manner, the plea would not have been entered until the court had allowed it. Thus, all matters occurring in the report between the accepted count and the accepted plea are omitted from the roll. As soon as the plea is reached, however, the roll again becomes the best, and, at the end, the only source of information. The reporter’s work was done when he had shown, not only what were the pleadings on which disputes occurred, but how and on what grounds the disputes were settled.

According to the roll, the plea for the abbot was that he did not then hold the tenements, and did not hold them on the day of the purchase of the writ. The demandant replied that on the day of the purchase of the writ,—to wit, on the first day of May,—the abbot did hold; and issue was joined thereon to the country. The postea is also entered on the roll, showing how, at nisi prius, a jury found that the abbot did hold on the day of the purchase of the writ. Judgment was accordingly given for the demandant to recover seisin.

In this case the entry of the judgment upon the roll was of vital importance to the demandant, as she and her heirs acquired a new root of title thereby,—a title no longer to the services, but to the land itself. This, however, did not concern the reporter, or the profession for the benefit of which he reported.

There were, however, cases in which the entry of certain matters upon the roll became of importance at stages previous to the entry of judgment. In Hilary Term, in the twelfth year of Edward III. (pages 373-75), an heir brought an action against his father’s executors to recover a charter by which it appeared that the father had been enfeoffed of certain land in fee, and which he ought to have as the holder of the land. For the executors it was pleaded that the feoffment was upon condition (as shown by indenture, of which profert was made) that, whenever the feoffor or his heirs should pay the feoffee or his heirs or executors £40, it should be lawful for the feoffor or his heirs to reenter upon the land, and the charter should be held as null. The feoffee in his will directed that the £40 (if paid) should be given to a prior. Judgment was therefore prayed whether the heir could have an action to recover the charter, which would lose its force if the £40 were paid to the executors. Judgment, however, was given that the charter should be delivered to the heir, because the executors could not deny that he was seised of the land as heir, and could not say that the money had been paid to them, or that they had an action to demand it. It would appear that, in the absence of any express direction to the contrary, the special plea on behalf of the executors would have been omitted from the roll, and that the declaration or count would have been followed by the simple entry that the executors could say nothing wherefore the charter should not be delivered. The counsel for the executors, however, prayed that the whole of his plea might be entered on the roll, as a protection to them against damages, in case the feoffor or his heirs should at any future time wish to pay the £40. To this the court consented, and the plea would consequently have been enrolled in its proper place.

In many cases it is apparent that the court directed, ex officio, what should be entered on the roll. Thus, in an oyer and terminer in Trinity Term, 12 Edward III. (pp. 615-617), where the felling of trees was alleged, the defendant claimed estovers, and on that ground avowed the carrying away of the trees, as not being against the peace, and prayed judgment whether any tort could be assigned thereon. It is not quite clear what was the plaintiff’s reply, but the court decided that the issue should be that the defendant had with force and arms felled and carried away the trees, absque hoc that the defendant had estovers. The issue was accordingly so entered on the roll, notwithstanding that this replication was not expressly pleaded.

It may, perhaps, be thought that the clerk or registrar had a difficult task to perform in entering the pleadings correctly on the roll, and that occasionally he failed. Failure did occur sometimes, and the roll had to be amended by order of the court. Sometimes also apparently the clerk (who was a very important officer, often consulted by the judges with regard to points of practice) discovered his own mistake, and corrected it by substituting an entirely new record of the case for one erroneously entered.

In the sixteenth year of Edward III.1 there are two records of one and the same case.2 The first is incomplete; the second is in a different form, and complete. The clerk, however, omitted to vacate the first by placing in the margin the usual words “vacat quia alibi.” The proceedings were on the judicial writ of Quid juris clamat, brought for the purpose of compelling tenants for life to attorn after a fine had been levied. The tenants, husband and wife, alleged that the wife’s estate was an estate tail in virtue of a previous fine, and not a mere estate for life, as purported in the fine on which the Quid juris clamat was brought. Then arose a question whether the tenants could be admitted to aver this in opposition to the particular fine on which suit was taken. The court held that they could, and that the fact must be tried by a jury, adding that the whole matter should be entered on the roll, and that inquiry should be had as to the whole.

In making the first entry on the roll a mistake had occurred with regard to the process by which the tenants were required to appear, Distringas having been substituted for Venire facias. There is also an important difference between the first entry and the second as to the tenor of the earlier fine. In the first it is stated that the tenements had been granted and rendered to the wife and her previous husband and the heirs of their bodies, that they therefore claimed a fee tail in the person of the wife, and that they prayed judgment whether they ought to attorn in respect of such an estate. This was in accordance with the earlier part of the report; counsel for the tenants having distinctly used the words “fee tail,” on the ground apparently that the wife was what would in later times have been called tenant in tail after possibility of issue extinct. In the second entry, however, the express claim of a fee tail is omitted, and the following words are substituted: “So that if the same Robert and Margaret (the first husband and the wife) should die without heir of their bodies, the tenements should remain to the right heirs of Robert, and they say that Robert died without heirs issuing from his body and the body of Margaret, and they claim to have such an estate in the person of Margaret, and pray judgment whether they ought to attorn in respect of such an estate.” This also is in accordance with the later part of the report, counsel having changed the form of pleading after argument.

We thus see how faithfully the clerks attempted to place the pleadings on the roll, and the difficulties with which they were beset. The second entry on the roll is, no doubt, a faithful representation of the matter which the court directed to be enrolled, as the first entry was of words which had, in the first instance, fallen from the mouth of counsel. The second entry shows the conclusion of the case,—the verdict for the demandants, to the effect that Margaret and her husband held only for life (as supposed by the fine on which proceedings were instituted), and judgment for the demandants to recover seisin. In the report these details are deferred to a later term.

It sometimes happens that there are widely different reports of the same case, one, perhaps, giving the names of the parties, and another not; one omitting matter which another includes; and one even absolutely at variance with another in relation to what was said, done, or decided. The record of the case is then invaluable, as it is the only authoritative statement of the pleadings accepted, and of the judgment. Sometimes, however, it is necessary to look even beyond the actual record of the case as enrolled in the court in which the action was brought. In difficult cases petitions were frequently made by the parties to the king in his council in his parliament, at various stages before judgment was reached. It then becomes expedient to consult the rolls of parliament if the cause is to be followed out from beginning to end, and the working of the prevailing system of justice to be understood.

The case of the Stauntons1 affords an apt illustration. The names of the parties are omitted from one of the reports, but given in another. In one report, that in which the names are given, the conclusion is not reached. In the other, judgment is reached, and even the fact that a writ of error was sued after judgment. The demandant was Geoffrey de Staunton, who brought a formedon in the descender against John de Staunton and Amy his wife, as appears in one of the reports and in the Placita de Banco.2 Amy was admitted to defend, upon her husband’s default, and, having vouched one Thomas de Cranthorne, waived that voucher, and vouched her own husband, on the following ground. A fine had been levied, by which John de Staunton acknowledged the tenements in dispute to be the right of Thomas de Cranthorne (as those which he had of John’s gift) and by which Thomas rendered the same tenements to John and Amy and the heirs of John. Geoffrey, the demandant, tendered the averment that Thomas never had any estate in the tenements by John’s gift. On behalf of Amy, the admissibility of this averment was denied, but the averment was entered on the roll with a protestation on behalf of Amy that, if the court should be of opinion that it was admissible, she was ready to answer over.

This was a dignus vindice nodus, and Geoffrey presented a petition to the king in his council in his parliament. In the report it is stated only that the demandant “sued in parliament,” that being a sufficient indication to the lawyers of the period of the course actually pursued. In his petition, the text of which is to be found among the rolls of parliament,1 Geoffrey represented that the protestation as to Amy’s readiness to answer over had been inserted by the clerks of the court by misprision, and prayed a decision as to whether the averment was admissible or not. It was agreed in the council in parliament that the averment was admissible, and that Amy could not be admitted to any further answer, as both parties had stood to judgment absolutely. Writs were accordingly sent to the justices of the Common Pleas, directing them to proceed without delay. The court, however, did not proceed, and another writ was sent to the same effect. Another series of arguments followed, in which Scrope and Willoughby, of the King’s Bench, lent their assistance, but disagreed. These arguments, of course, appear only in the report. In the mean time no judgment was given, and Geoffrey, the demandant, presented another petition to the council in parliament, praying that the justices of the Common Pleas might be commanded to give judgment forthwith, or else bring their rolls, record, and process into parliament, so that judgment might be given one way or the other, without further delay. It was thereupon agreed by all in full parliament, and commanded by the prelates, earls, barons, and others of the parliament, “that the clerk of the parliament should go to the chief justice and other justices of the Common Bench, and require them to proceed to judgment without further adjournment or delay.” In case the justices were unable to agree, they were to come into parliament, and the chief justice was to bring into parliament the rolls and the record of the plea.

Stonore, the chief justice, with the other justices, did bring the record into parliament. The chancellor, the treasurer, the justices of the King’s Bench, as well as those of the Common Bench, the barons of the Exchequer, and others of the king’s council were there present. The process and record were viewed and read, the point of law was decided as before, and direction was given that Geoffrey should recover his seisin against John and Amy.1

Geoffrey’s last petition and the whole of the proceedings following upon it are represented in the report by the few words following: “And afterwards the matter was again sent into parliament, and there judgment was commanded for the demandant for the reason above.”

Judgment was then given, as appears both by the report and by the Common Pleas roll, in accordance with the direction of the council in parliament. Even in the Common Pleas roll, however, there is not the full account of the transaction which is given in the rolls of parliament, the judgment being prefaced only by these few words: “And thereupon, after advice had as well of the prelates and magnates as of the justices and other of the council of the lord the king, there present in the full parliament last held.”

It might have been supposed that the case was now at an end; but the demandant was almost as far as ever from obtaining seisin of the land. The judgment, though given by direction of parliament, was technically a judgment of the Court of Common Pleas. From that court a writ of error lay to the Court of King’s Bench, and a writ of error was accordingly sued. A full account of all the proceedings in error would be tedious, as (except in the fact that John and Amy now became plaintiffs in error, and that the assignments of error and pleadings thereupon took the place of the pleadings in the court below) precisely the same features present themselves again. There are again reports in two distinct forms differing from the record2 in a manner similar to that in which the record of the court below differs from the reports. There are petitions and the counter-petitions to the king in his council, in his parliament, directions from parliament to the justices to proceed, further delays, and further directions. In the end, after five years of litigation, when delay had reached its utmost limit, and when a peremptory order to the justices to proceed followed a last petition from Geoffrey, John and Amy failed to appear, and Geoffrey at length obtained execution of the original judgment.

This case, as well as innumerable others, will show how necessary it is to travel beyond the Year Books in order to understand them, and how intricate is the study of the records if conducted on scientific principles. Since the passing of the Act which abolished most of the real actions, of the Act for the abolition of fines and recoveries, and of the Uniformity of Process Act, in the reign of William IV., the old learning has progressively fallen into decay. Much of it, indeed, had been forgotten still earlier. The number of persons who have any acquaintance with the old forms of action and the old modes of proceeding is every day becoming less: and there is a growing tendency to look upon the public records of England as mere curiosities, or as a hunting-ground for the antiquary and genealogist in search of isolated facts. In like manner it is not uncommonly supposed that the cases in the Year Books can but rarely be of practical utility for the purposes of the lawyer, and that beyond the range of that practical utility they are useless.

In this paper the rolls only of parliament, of the King’s Bench, and of the Common Bench have been mentioned, and only the relations of a portion of their contents. The subject of the relation of the various classes of public records to each other, it need hardly be said, is far too wide for discussion in a limited space, as indeed is the relation even of the records of the courts in general to the Year Books in every detail. Enough, however, it may be hoped, has now been said to show how very necessary is a knowledge, not merely of the contents of a particular class of records, but of the bearings of the different classes of records on each other, for a thorough comprehension of the reports.

There is yet another aspect of the reports in the Year Books which has to be regarded. From the undoubted fact that the Year Books are not very intelligible without a proper use of the records relating to them, it is not to be inferred that the records will suffice for all purposes for which the Year Books could be used. In the first place, a record can never serve the purpose of a report, because, as already explained, each is drawn up with a different object. In the second place, the reports may be so treated as to render them the best guides in a search after the most valuable records. No one who knows, for instance, the bulk and contents of the Placita de Banco would think of publishing the whole in extenso. On the other hand, however, no one who has not a knowledge of the reports and of their value, not only legal, but historical, could be trusted to make a selection from the rolls.

There are in the reports innumerable matters of interest, legal, historical, constitutional, and social, which have no counterpart in the rolls. In the rolls are the dry bones of the bare facts. In the reports are living men, dealing with the facts in their own language, in the spirit of their own age, in tones which reveal what manner of men they were. Thus, the last thing, perhaps, which might be expected to occur in a report rather than a record, is information relating to horticulture. Yet, in an action of waste,1 where waste was alleged, inter alia, in respect of a whitethorn-tree, there occurs a curious illustration of the practice of grafting. Counsel for the defendant said this ought not to be adjudged waste, because whitethorn is underwood which cannot be the subject of waste in a garden. On the other side, it was replied that whitethorn is a tree upon which a graft may be made, and this was not denied.

We accordingly learn that the practice of grafting on the whitethorn was well known in the fourteenth century in England, and that fruit was already cultivated with some skill.

Judges and counsel must in those days have been good linguists. They were always ready to seize upon the least slip in the grammar of any Latin writ or other instrument in Latin. Their usual language in court was at this period French, and it is real living French, very superior to the law French of a subsequent period, when the language of the courts was English, and the language of the reports became a jargon. We see from their arguments exactly how French was spoken in every-day life. Some other dead languages have something analogous in the dramatic writings which have survived; but even a drama does not reproduce the living speech so exactly as a report of words actually spoken, and written down, more or less correctly, at the time, or immediately afterwards, by persons who had actually heard them. The earlier Year Books consequently afford materials for the study, not merely of the written, but also of the spoken language.

As might have been expected, where men of high education were speaking, it usually appears that the rules of courtesy were observed among them. They lived, however, in a comparatively rude age, and in the midst of rough surroundings. Thus we find sometimes a directness of expression which would hardly occur in modern times. In one case,1 the justices say in so many words that a previous decision had been obtained by favor. In another case,2 one of the judges is openly blamed by his fellows for too hastily deciding that a writ was good, though they admitted that the decision was correct. The same case illustrates the grammatical training which the lawyers received in the days of the schoolmen, and their readiness to dispute as to the meaning of a word. An action of waste was brought by the Earl of Hereford against Alice, who held in dower by endowment of the previous earl. At the end of the writ of waste occurred the words “ad exheredationem praedicti comitis,” the intention being to describe the living and plaintiff earl. Counsel for the defence argued that as both earls had been mentioned in the writ, the word praedicti did not determine with certainty to which of the two reference was made. Counsel for the plaintiff said the word must be understood to refer to the living earl, though it might be otherwise if one earl brought a writ against another earl. One of the judges then said: “If the words of the writ were ‘ad exheredationem ipsius comitis,’ ipsius being a demonstrative pronoun, then the word would refer to the earl who is living, but praedicti refers to either indifferently.” In the end, however, the writ was held good in spite of the quibble.

Judicial jokes are somewhat rare, and, when they occur, are apt to be of the grim and severe type. In Michaelmas Term in the eleventh year of Edward III. (p. 295), one of the judges introduced a little story more or less relevant to the matter in hand. A man, he said, once brought an assise before the justices at York, and the tenant pleaded that the plaintiff had been outlawed for felony. He had, in fact, been outlawed and subsequently pardoned, but had forgotten to bring his charter of pardon from the inn. He was arraigned instantly. As, however, the chancery was at York (with its records), he vouched the record of his charter of pardon in the chancery. “And,” said the judge, “if the chancery had not been at York, he would have gone on his pilgrimage to Knaresmire.” The point of the remark lies in the fact that Knaresmire was the place of execution.

Not the least valuable matter in the reports, as distinguished from the records, however, is that which shows how many propositions were accepted, without dispute, as settled law. For modern purposes there is quite as much to be gleaned from such passages as from the substantive decisions for which the Year Books are more often searched. Thus, in Trinity Term, 13 Edward III.1 a question arose as to the sufficiency of a jury, it being alleged that when a peer of the realm was a party, it was his privilege that there should be a special jury, consisting partly of knights. The point was contested, but the privilege was affirmed by the judges. In this particular case, however, it was a bishop on whose behalf the privilege was claimed as being a peer of the realm. No one suggested that a bishop was not a peer of the realm. It was clearly admitted, as an indisputable fact, by counsel on both sides, and by the judges, that he was. So also in Easter Term in the same year,2 it was stated by counsel that the Abbot of Ramsey held by barony, and was a peer of the realm. He did not obtain his object, which was to prevent the opposite party, who was plaintiff, having a delay or postponement known as a “day of grace.” His case, however, was like those of other peers, mentioned in the books, who did not succeed on this point, and no one argued that the abbot was not a peer of the realm.

In later times it has been the opinion commonly received that a spiritual lord, as such, is not a peer of the realm; and the two cases last mentioned are consequently of very great interest and importance, though showing no express decision on the point. So, also, other subjects from time to time force themselves upon the attention of a student of the Year Books, and indicate how much remains to be written with regard to the English constitution. It is not going beyond the bounds of truth to say that, setting aside battles and statecraft, the greater part of the history of England, as well as of its law, during many centuries in the life of the nation may be found in the Year Books and the corresponding records, which are their complement.

38.

THE DEVELOPMENT OF WRITTEN AND ORAL PLEADING1

By William Searle Holdsworth2

THE objection has often been urged, and justly urged, against a system of case law, that the true bearings of the decision cannot be understood without some knowledge of the system of procedure and pleading which prevailed when the case was decided. This objection applies with the greater force as we go further back in our legal history; and therefore it applies most forcibly to the Year Books. It would not perhaps be too much to say that to lawyers who know only our modern reports the Year Books are hardly intelligible. The reports therein contained appear in many cases to be merely reports of desultory conversations between judge and counsel, which often terminate without reaching a distinct issue either of fact or law. Even when a distinct issue of fact or law is reached they often tell us nothing of the final result. Much of their inconclusive character is due, no doubt, to their informal shape. Notes taken by apprentices during the hearing of the facts of cases at which they happened to be present will naturally possess such characteristics; and when these notes are copied, and perhaps freely edited, such characteristics will be emphasized. But it is our want of knowledge of the legal environment in which they were produced which is the chief cause of their obscurity. There are vast differences between the mediæval and the modern conception of a trial and all the ideas involved in the notion of a trial. Differences upon matters so fundamental will explain why familiar rules of law appear in the Year Books in unfamiliar guise. They appear there bound up with the intricate manœuvres made possible to a learned profession by an intricate procedure. We who live in a state of society far remote from that of the thirteenth century miss much of the reason which such intricacies may have had to the society in which they grew up; and reports intelligible to men living in that society and practising that system are not intelligible to us. The earlier Year Books, too, are, as we have seen, often only the note-books of the apprentice, and, as every student knows, nobody else’s notes can be as valuable as they are to the maker. At the same time it is only by the help of these notes, which grow fuller as time goes on, that we can accustom ourselves to the atmosphere of the mediæval law-court, and to the mind of the mediæval lawyer. Unless we can do this we shall never attain to any real knowledge of the spirit of the mediæval common law; and a knowledge of the mediæval common law is essential if we are to attempt a critical estimate of the work of the lawyers of the sixteenth and seventeenth centuries, who adapted its rules to the new needs and ideas of the modern state. Let us see, then, how far a consideration of certain differences between the mediæval and the modern in such vital matters as the rules of process and the rules of pleading will place us at the right point of view from which to look at the Year Books.

1. We must remember that when the Year Books begin the law is only just emerging from that primitive stage in which the securing of the appearance of the defendant is a difficult problem; and that it is still in that stage in which the difficulties of travel make process slow.1 Rules based upon primitive legal ideas, and upon physical necessities of an older age, became the permanent basis of an elaborate superstructure of technical rules. The rules of law upon this subject had become fixed before they had had time to become rational. It followed that with every increase in the complexity of the law these fixed rules became less rational and a greater hindrance to justice. Every action possessed its special machinery and its special formulæ for working that machinery.1 A lawyer who wished to do his duty by his client must be at home with all the capacities of that machinery, in order that he might know at each stage of the case what chances were open.2 Many a good case might be lost, or a bad case won, or, at least a decision upon it delayed, if the right step was taken at the right time, or if prompt advantage were taken of an unskilful move or a verbal error. It would be both tedious and useless to go into details about the process used to get a defendant before the court, and the various forms of process which might issue in the course of a case, or after it had been decided. In a real action the process to get the defendant before the court consisted, when ‘reduced to it slowest terms,’ of summons, seizure of the land into the king’s hand, and finally judgment, that the land be handed over to the demandant. Even then it was open to the tenant to reopen the whole dispute by means of a writ of right.3 It would be in very few cases that process could thus be reduced to its lowest terms. The validity of the summons might be questioned.4 Both the tenant and the demandant might cast many essoins—how many depended upon the kind of action brought. If there were several tenants they might at one time have delayed the proceedings almost indefinitely by essoining themselves alternately.5 In Edward III’s reign the practice was still possible in personal actions.6 In many cases the hearing of the case might be hung up by claiming a view of the premises; and we find much litigation upon the right to have a view.1 Then there might be vouching to warranty or aid prayer,2 and the person vouched or prayed in aid might wish to essoin himself. Protections must be reckoned with which would put the case without a day.3 Infants might intervene and claim their age; and this would mean that the proceedings would be stayed till the infant had attained his majority.4 All these various processes involved many writs and orders to the sheriff; and if the sheriff had taken the wrong steps to carry out the process, or if he had made any verbal fault in his returns, there was fresh material for disputes which delayed the hearing of the case.5 In 1344 it was noted that, ‘If the demandant omits in his process any part of his demand included in the original writ the whole is discontinued.’6 Booth tells us that the proceeding by the Grand Assize is very dilatory, and may become ‘vexatious to the Tenant by the Practice of the Demandant by not prosecuting and suing out Process as he ought, and many other Delays for want of Knights, there not appearing, or the like.’7 Process in the case of personal actions was almost if not quite as lengthy; but there were not all the opportunities for delay in the course of the case which were afforded by some of the real actions.8 The number of essoins allowed were not so numerous. There could be no vouching to warranty. But in the older personal actions the process was lengthy and ineffectual enough. There might be protections; there might as we have seen be fourching; and it was always possible to question the acts of the sheriff. One of the reasons for the spread of trespass was that, being a penal action, the process was comparatively speedy and effective. It was possible to arrest the defendant, and in the last resort to outlaw him. The plaintiff was not left, as in some of the older personal actions, without any other remedy than to keep distraining a contumacious defendant, who very likely had nothing by which he could be distrained.1 We must not forget that the ingenious means by which the three Common Law Courts encroached upon one another’s jurisdiction were merely perversions of their ordinary process which added to the technicalities of an already complicated system.2 Even in Edward I’s reign it was possible for the judges themselves to make mistakes. ‘How is it,’ said Berewick to the sheriff, ‘that you have attached these people without warrant; for every suit is commenced by finding pledges, and you have attached although he did not find pledges?’ &c. ‘Sir,’ said the sheriff, ‘it was by your own orders.’ ‘If it had not been so,’ notes the reporter, ‘the sheriff would have been grievously amerced, et ideo cave.’3 In Henry VI’s reign Fortescue C. J. was being pressed by the absurdity of a distinction which he was laying down as to when a writ of Scire facias would, and when it would not, issue against a person who has possession of the goods of one attainted. All he could reply was, ‘Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.’4 When a judge of Fortescue’s eminence is obliged to confess that he cannot explain the reason for a given procedural rule, and is reduced to infer its reasonableness from a priori views as to the inherent reasonableness of the law, we may be sure that the rule is coming to be an antique incumbrance. In fact the rules as to process were the least reasonable part of the mediæval common law. It is upon them that we must place a large share of the blame which attaches to the common law of the fifteenth century for its failure to keep the peace, and to punish wrongdoing. Their intricacy served the purpose of the unscrupulous.1 It is not until much of this complicated process has gone out of use, with the decay of the real actions, that the common law will be able to take new life. But in the period of the Year Books the land law and the law of the real actions were the principal part of the common law. Therefore there are necessarily many cases in the Year Books taken up solely with elucidating the difficulties of process in these and other actions. These cases are naturally not very intelligible to us. The changes which made this learning obsolete rendered useless whole groups of cases reported in the Year Books.

2. The rules of pleading—the mode in which and the conditions under which the parties state the case which is to be tried—go far to determine the shape of many rules of law; and they obviously have a great influence upon the form which the report takes. In old days the defendant must meet a plaintiff who has properly stated his case with a full denial.2 Though this rule was long preserved it had become possible in Bracton’s day for a defendant, after making this full denial, to use divers ‘exceptions,’ and for the plaintiff to reply to these ‘exceptions.’3 But in his day these rules were confused. It is not till Edward I’s reign that we can see the beginnings of that peculiarly English branch of law—the science of pleading. The peculiarities of this science cannot better be described than in the words of Stephen4 :—

The question which the legal historian must answer is the question why the English mode of pleading was so different from that which we find in other systems of law. The answer will probably be found in the peculiarity of the old conception of a trial, and in the mode in which that old conception of a trial was adapted to the jury system.

The old conception of a trial was very different from our modern conception. The pleadings of the parties led up to some one of many modes of proof which might be either selected by the parties or adjudged by the Court.1 How those modes of proof worked it was impossible to inquire. All the legal interest of the case was centred in the questions which led up to the award of proof.1 And all those questions were subject to the fixed rules of the game which bound the judge as strictly as the parties; for it is a characteristic of these old procedural rules that the suitor is considered as having a legal right to their enforcement as against the court, and, therefore, a grievance against the court if they are not applied or misapplied.2 The jury became almost the only mode of proof at a time when these old ideas of a trial were still prevalent; and consequently the jury was regarded as settling the matter in the same final and inscrutable manner as compurgation, battle, or ordeal.3 Therefore just as in the older law all the legal interest in the case turned upon what we should now regard as preliminary matters, such as the rules of process for getting the parties before the court, and the rules which defined the modes in which they should state their case when they were before the court. Just as in the older law all these rules must be put in motion and strictly obeyed by the parties at their own risk, so now the parties must put in motion the complicated machinery of process, and define by their own pleadings with painful and literal accuracy the issue to be tried.4 Thus we get that which Stephen tells us is the characteristic feature of the English system of pleading—the settlement of the issue to be tried by the allegations of the parties.

But though the jury took the place of the older modes of proof, though the process and the pleading of an older age were adapted to the proof by jury, the growing elaboration of the law, and the differences between the test of the jury and the test of such proofs as ordeal or battle, begin a series of changes which eventually substitutes for the old system of proof the modern idea of a trial based upon the pleadings of the parties.

In the first place the jury were never expected to pass upon matters of law. It was open then to find a special verdict and ask for the judgment of the court thereon.1 It soon became clear that there were some issues which were purely issues of law. Thus we get a distinction between issues of fact and law which was foreign to a primitive procedure in which the assertion of the plaintiff was met by a denial of the defendant, and followed by an award of proof.2 In the second place it had become impossible to state a case fairly to the court, unless the parties were allowed to use many pleas (exceptiones, replicationes, triplicationes) of different kinds. It is true that the old ideas survived so far that a defendant must generally preface his defence by a denial; but after that he could urge any other pleas he liked. The rules about the pleading of these matters were at first confused. The pleas were long, argumentative, and double. But one important result followed from the new facilities allowed to the parties in the statement of their case. Many of the old formal words required to be spoken with literal accuracy by plaintiff and defendant gradually disappeared. In particular, the formal defence became merely a collection of words of court—formal words concealed in the record by an ‘&c.,’ the meaning of which has departed.3 The new learning as to exceptions threw the old rules into confusion.4 If Bracton had been followed by a generation or two of judges, bound by their orders to know something of the civil and canon law, the jury might have come to be regarded merely as witnesses, and not as a body to which the parties have agreed to refer the determination of the issue; and English law would then, like continental systems of law, have adopted a procedure based upon the procedure of the civil and canon law.1 But this was not to be. The newer ideas of pleading, drawn in the first instance from the Roman law, and necessitated by the growing complexity of the common law, were reduced to order, and given a shape which was peculiarly English, because it was determined by the peculiarly English use of the jury as a mode of proof. We have seen that the jury was put into the place of the older modes of proof with as little change as possible, and that the fundamental peculiarity of the English system of pleading—the settlement by the debate of the parties in court of the issue to be tried—was due to the survival of the older ideas as to a trial. For the same reason and in the same way the shape which these new rules as to pleading took was coloured, in the first place by some of the old ideas as to pleading which led up to the older methods of proof; and in the second place by the necessity for adapting the new ideas as to pleading to the requirements of the jury system. (1) Both the older and the newer modes of pleading were oral; and many of the fundamental rules of the common-law system of pleading were made and adapted to this system of oral pleading. ‘The abandonment of the practice of oral pleading,’ says Stephen,2 ‘led to no departure from the ancient style of allegation. The pleading has ever since continued to be framed upon the old principles and to pursue the same forms as when it was merely oral. The parties are made to come to issue exactly in the same manner as when really opposed to each other in verbal altercation at the bar of the court; and all the rules which the justices of former times prescribed to the actual disputants before them are as far as possible still enforced’ with respect to the later written pleadings. (2) The facts at issue were submitted to the jury as to one of the older modes of proof. But the new modes of pleading had made it possible for the parties to bring before the court complicated states of fact; and it was obvious that issues could not be placed before a reasonable body of men in the same manner as they were submitted to the decision of the older arbitrary tests. These two considerations are at the bottom of the requirements, which underlie all the rules of pleading, that the statements of the parties shall be material to the issue, single, and certain. The need for distinguishing between issues of fact and law, the need (occasionally) for distinguishing cases in which trial by jury was applicable from cases in which it was not,1 the need for ascertaining the venue from which the jury must come, the need for placing the point at issue in an intelligible form before the judge and jury, are at the bottom of these fundamental rules of pleading. Thus the problems which originated in the adaptation of the newer ideas as to pleading to the old conception of proof, and the problems which originated in the fact that the proof was now, not an arbitrary test, but the finding of a body of reasonable men, are the factors which determined the fundamental rules of the common-law system of pleading.

This system of oral pleading in Court leading to an issue which is submitted to the jury, as if the jury were the test or proof to which the parties have agreed to submit, affects the whole character of the reports in the Year Books. It was the oral pleading leading to the issue which interested the reporter. In the course of this debate many questions of law—material to the issue and immaterial—were mooted and discussed by Bench and Bar. What view the jury took of the issue of fact so formulated was