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

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 of comparatively little interest to the legal profession, unless it was made the basis of further proceedings. Decisions upon an issue of law were no doubt interesting to the profession; but cases which involved such decisions were often adjourned, and the decision was, perhaps, never given. The judges, Professor Maitland tells us,1 were unwilling to decide nice points of law; ‘too often when an interesting question has been raised and discussed, the record shows us that it is raised and then tells us no more. A day is given to the parties to hear their judgment. A blank space for the judgment is left upon the roll, and blank it remains after the lapse of six centuries.’ Even if judgment were given, it might well be that the reporter did not happen to be in court on that day.2 In the meantime the report of the debate which led to the distinct formulation of the issue contained much sound learning and showed where the doubt lay. And so it is these arguments leading to the formulation of the issue which comprise the largest part of the cases reported in the earlier Year Books. Naturally as the argument proceeded new facts were elicited, old facts assumed new aspects, new legal points were suggested, all of which were taken down by the reporter, and edited and annotated for the benefit of himself and his friends. The Year Book, therefore, does not give us a report directed to establish some particular point. Rather, it gives us an account of the discussion which preceded the formulation by the parties and the Court of that point; and the matters discussed may bear very little relation to the issue reached.3 Sometimes no issue is reached.4 We are reminded of what must have taken place before the Praetor in iure when he was engaged, with the help of the parties and their counsel, in settling the formula. If we had some contemporary account of what took place before the Praetor, it would probably resemble the report in the Year Book far more closely than the report in the Year Book resembles the modern report of the arguments and the judgments upon an issue already determined by the pleadings of the parties.5

We may note, too, that in a report of this oral debate which preceded the formulation of the issue, the line between argument and decision will tend to become obliterated. Serjeants or apprentices present, but not engaged in the case, intervene with their advice;1 and what they say is naturally interesting to the profession. A judge even will condescend to give a little lecture for the benefit of the student.2 Naturally reports which record such proceedings will be discursive and conversational. In some of our older reports the reasons given by the judges for their formal decision are styled arguments. These Year Books are really the reports of arguments—arguments used by the Bar and the Bench. It was the argument rather than the final decision which interested the profession, partly because there was then no such rigid theory as to the binding force of decided cases as that to which we are accustomed, partly because the discussion and the elucidation of legal principles were to be found in the argument rather than in the dry formal decision, and partly because decisions upon points of law were often not given, or, if given, were difficult of collection by the private reporter.

It is clear that this fashion of oral pleading made for great freedom in the statement of the case. A painful accuracy was no doubt required in the wording of the writ, in the correspondence between writ and count, and in the observance of the elaborate rules of process. But when all objections to the writ and process had been disposed of, when the parties were fairly before the court, the debate between the opposing counsel, carried on subject to the advice or the rulings of the judge, allowed the parties considerable latitude in pleading to the issue. Suggested pleas will appear after a little discussion to be untenable; a proposition to demur will, after a few remarks by the judge, be obviously the wrong move. The counsel feel their way towards an issue which each can accept and allow to be enrolled.3 In fact, in the earlier part of this period it was not the strictness of the rules of pleading which hindered justice, it was rather the strictness and elaboration of the rules of process. This looseness in the rules of pleading was increased, perhaps almost necessitated, by the fact that the law of evidence, as we understand it, hardly as yet existed. So far are we from the rule of later law that evidence must not be pleaded, that we might almost say that oral evidence was generally brought to the notice of the court by pleading it.1 One or two illustrations (1) of the freedom of action allowed to counsel under this system of pleading, and (2) of the manner in which evidence was brought before the Court, will illustrate these causes for the differences between the Year Books and the later reports.

(1) Illustrations of the mode in which an issue was reached by discussion at the Bar under the superintendence of the Court will be found on almost every page of the Year Books. As a simple illustration we will take a case of the year 1309.2 ‘Alice brought her writ of entry sur disseisin against a Prior, and counted on her own seisin as of fee and of right in time of peace, saying, “Into which the Prior has no entry save after (post) the disseisin which one G. did to Alice.” Passeley: “She was never seised of fee and of right in such wise that she could be disseised.” Stanton J.: “That is no good answer in this writ, but it would be a good answer to say that G. did not disseise her.” Friskeney argued that Passeley’s answer was receivable because, if the plaintiff’s count claiming as of fee and of right were accepted by them, they might be estopped in any subsequent proceedings from denying that she held as of fee and of right. Stanton J.: “What you say is wrong. What enrolment are we to have in this case? I think it should be, ‘not so seised that she could be disseised,’ so your averment is not receivable.” Passeley: “The enrolment shall be, ‘not so seised in such manner as she demands so that she could be disseised.’ To this all agreed.” The Court will sometimes suggest a plea to meet difficulties suggested by counsel in argument;3 and the fact that the Court advised a particular mode of pleading was once stated as a reason why counsel adopted it.1 But sometimes the Court is only wise after the event, and delivers a lecture upon what, in its opinion, would have been the proper mode of pleading.2 Counsel once argued that what a party has pleaded and passed over without notice by the Court is wholly immaterial; and though the Court denied the proposition as thus broadly stated, there was probably a considerable element of truth in it.3 A survival of the old idea that a pleader’s words were not binding till avowed by his client no doubt made it the more possible to treat pleas as capable of amendment till one was reached by which counsel would abide.4 Whether or not this was so it is quite clear, as Reeves says,5 that everything advanced by counsel was, in the first instance, ‘treated as matter only in fieri which upon discussion and consideration might be amended, or wholly abandoned, and then other matter resorted to, till at length the counsel felt himself on such grounds as he could trust. Where he finally rested his cause, that was the plea which was entered upon the roll, and abided the judgment of an inquest or of the Court, according as it was a point of law or fact.’ We may note, too, that the complications of process sometimes gave to a pleader a chance of correcting an error which might otherwise have proved fatal. If the case were put without a day by a Protection, or, perhaps, by a default, the pleading must begin anew; and mistakes made on the occasion of the first pleading could then be amended.1

(2) The law knew the preappointed witness to deeds or charters: it knew also the written evidence of the deeds or charters themselves. It did not as yet recognize the independent witness called to testify to the facts of which he had knowledge; indeed, as Thayer has shown, the strictness with which the laws against maintenance were interpreted effectually discouraged him.2 The evidence, which in modern times is given by such witnesses, was at this period supplied partly by the jury, which the law was careful to draw from the neighbourhood of the occurrence,3 partly by the custom of pleading such evidence. For this reason questions turning upon the ‘venue’ of the jury are of much importance in the Year Books; and for the same reason counsel deem themselves to be in a manner responsible for the statements which they make to the Court. They examine their clients before they put forward a plea.4 They even decline to plead a fact as to the truth of which they have doubts.5 Sometimes, indeed, we see a distinction taken between the plea and the evidence for the plea when it is convenient to say that a statement is only evidence and not really a plea.6 But, as a general rule, it would be true to say that such distinct things as the pleadings, the statements of counsel, and the evidence for those statements are hardly distinguished in the Year Books.1 To this state of things must be ascribed some peculiar doctrines in the law of pleading. It was clearly difficult under these circumstances to bring to the notice of the jury, who knew something of the facts, the exact import of similar yet legally distinct states of fact, especially having regard to the rule that, if the special facts really only amounted to the general issue, the general issue only could be pleaded, and the case therefore necessarily left to the jury. It was equally difficult to separate clearly matters of fact from questions of law under a system in which the evidence for the facts stated in the pleadings, and the arguments of counsel were all involved in the pleadings themselves, and only extricated gradually in the course of the discussion which settled the issue to be tried. To these difficulties are due the doctrine of colour in pleading,2 and the demurrer to evidence.3 Both these doctrines were due to a desire to withdraw the case from the jury and to submit it to the Court, in cases in which it was thought desirable to have a clear decision upon the legal consequences of certain states of fact. The older modes of proof necessarily gave a ‘general verdict’; and it was equally possible for the jury, which had stepped into their place, to return a general verdict. Under a system which prevented the judge from clearly directing the jury as to the points of law involved in the case, the growing complexity of the law made it very dangerous to allow the jury to return such a verdict. Therefore these methods were devised for ousting the jury, and for getting a point of law decided by the Court. Both these doctrines lived on in the law long after their original raison d’être had disappeared. Neither can be understood, unless we understand the peculiar difficulties involved in the conduct of a case in court according to the procedure recognized in the fourteenth and fifteeth centuries.

Towards the close of this period this system of oral pleading began to be superseded by the system of written pleadings, which, when complete, were entered on the record. The practice in its final form is thus described by Stephen1 :—‘The present practice is to draw them (the pleadings) up in the first instance on paper, and the attornies of the opposite parties mutually deliver them to each other out of court . . . these paper pleadings at a subsequent period are entered on record.’ This change, it may be said, is merely a mechanical change; but, as Maine has noted,2 in reference to another change of a similarly mechanical character—registration of title—the effect of such a change on the fabric of the law may be considerable. Perhaps it was the more considerable because it was accompanied by another change, of even greater importance. It was just about this period that the practice of calling witnesses to testify to the jury was becoming common, and was giving birth to our modern law of evidence.3 The pleading which defines the issue begins to separate itself from the explanatory statements of counsel and their arguments upon points of law on the one side, and from the sworn evidence for the facts pleaded or stated on the other. These changes had considerable effects upon the jury, the court, the legal profession, the law report, and the law. In the first place, we shall say something of the manner in which these changes were effected, and in the second place, we shall summarize their results.

As to the date at which and the stages by which the practice of pleading by means of paper pleadings were introduced, we know very little. Gilbert thought that they began to be introduced in the reign of Richard II;1 but, as Reeves points out, there is very little foundation for this conjecture.2 It is probable, however, that the growth of technicality and formalism in pleading may have introduced some changes, so gradual that they were hardly noticed, in the mode of bringing the pleadings of the parties before the Court. That the rules of pleading were becoming formal and fixed is clear from the number of cases in the Year Books of Henry VI and Edward IV’s reigns which turned simply upon matters of form.3 In one case it is reported that the judges were reluctant to depart from a precedent laid down in the Novae Narrationes, though apart from this precedent they would have come to another conclusion.4 It appears, too, from this case, that they sometimes consulted the prothonotaries as to the proper form of plea; and no doubt a form of plea which was sanctioned after such consultation would easily harden into a fixed rule.5 Before a plea was entered on the roll there is sometimes a friendly discussion as to its form; and then the opposing counsel promises an answer on the following day.6 As to the exact mode of entering such pleadings on the roll, there was probably no very fixed practice. In a case of Henry VI’s reign three prothonotaries of the Common Bench summoned to give evidence on this point all differed. The Court apparently considered that the pleadings should be entered day by day as the case proceeded.7 This makes it the more probable that the conclusion which Reeves1 arrived at, after the study of the Year Books of this period, is correct.

But this further change to a system of paper pleadings was not well established, Reeves thinks, till the reign of Elizabeth. During the whole of the mediæval period the pleadings were usually pleaded by the serjeants or apprentices, and sometimes by the litigant in person at the Bar. They may have been enrolled as the case proceeded; and the copy of the roll may have been available to the pleader on the opposite side.1 But subject to this modification, which was no doubt caused by the growing complexity of the rules of pleading, the issue was settled in the old way. It is probable that we must look to the development of the law of evidence for the causes of the change to the later system of paper pleadings interchanged between the parties or their attorneys.

In the Year Book of 38 Henry VI we have perhaps the first and certainly an early mention of a ‘paper’ pleading.2 The tenant and his attorney in a writ of right had made default at nisi prius. The judges had recorded this default, and discharged the jury. In the Easter term the tenant came to the Bar, and his presence was recorded. Thereon Billing and Laicon, counsel for the defendant, prayed judgment against the tenant. Choke and Littleton were counsel for the tenant; and the tenant requested them to plead the fact that while coming to the former trial he and his attorney had been stopped by floods, in order that by this plea his former default might be saved. But these floods were alleged to have been in the county Palatine of Durham and another county; and the serjeants knowing nothing of the matter, and apparently suspecting the truth of these statements, declined to plead them.

Billing and Laicon then moved for judgment, commenting upon the character of a plea so suspicious that even the tenant’s own counsel would not plead it. Choke and Littleton then tried to excuse the tenant; but Prisot C. J. said to them:—

There was then some further discussion, and Moile J. gave it as his opinion that since the serjeants would not plead for the tenant, the tenant could do nothing else but go to the prothonotary and get a paper drawn up and plead the matter in this way.2 After further discussion on other days, it was finally settled ‘that the plea be recorded in the manner and form in which it is drawn without any amendment; and they charged the prothonotary to make no amendment,’ and then Billing and Laicon were told to answer to the plea. They demurred to it; and after some further discussion the Court told Choke and Littleton to argue the demurrer.

It is clear from this curious tale that persons not represented by counsel could get their pleas put into shape and written out on paper by the prothonotary or his clerk; and that he could then put this paper in as his plea. The Court does not consider it necessary to speak the plea for such a person, as under the old practice.1 It is also fairly obvious that, when the plea was put in or spoken, it might be amended before it was enrolled, for a special instruction is given that this extremely suspicious plea is not to be amended. We may also note that it is the party or his attorney, and not serjeant, who is identified with these paper pleadings; and we shall remember that Stephen, talking of the settled practice of later days, tells us that it is the attorneys of the parties who deliver these pleadings to one another. But for our purpose perhaps the most important point to note is the fact that as yet the serjeant who pleads a plea takes upon himself some responsibility for its accuracy. Though Moile thought there was no objection to such a manner of pleading when counsel had declined to plead, Prisot objected on the ground that it would be a bad precedent to allow persons represented by counsel to thus put in paper pleas.

In the course of the sixteenth century the practice of proving by witnesses the facts stated in the pleadings was growing.2 A very cursory inspection of Plowden’s reports will show this. It may be that here, as in other cases, the competition of the Chancery exercised a liberalizing influence upon the doctrines of the Common Law Courts. Persons whose witnesses were frightened by the prospect of proceedings for maintenance applied to the Chancellor for a subpoena directed to these witnesses. The witnesses, being thus compelled to testify, ran no risk of proceedings being taken against them.3 A statute of 1563 allowed process to issue to compel the attendance of such witnesses;4 and Sir Thomas Smith regards their presence as the usual accompaniment of a trial.1 This clearly tends to shift away from counsel the responsibility for the truth of pleas pleaded by him, and to take away Prisot’s objection to such paper pleas being put forward by persons represented by counsel; this being so, it would appear that even according to the view of Prisot, and certainly according to the view of Moile, there could be no objection to paper pleadings. We are not, therefore, surprised to find that in the later Year Books of Henry VII and VIII’s reign the questions argued are rather questions as to the form and effect of pleadings already settled, than questions as to the form which the issue shall take; and we can say the same thing of the earlier cases in Dyer’s reports. This clearly points to the growth of the practice of settling the pleadings out of court.2 When Sir Thomas Smith wrote, pleadings could be either written or spoken;3 and in 1584 the serjeants in Dowman’s case4 treat the distinction between the pleadings and the evidence for the pleadings as well settled. In fact the growing complexity of the science of pleading was making it a very special subject, to be learned best in the office of the prothonotaries.5 Their clerks were employed by the attorneys to draw up the pleadings,6 and often themselves acted as attorneys for the parties.1 At the same time the conduct of the case in court was becoming a very different thing, and demanded very different qualities now that there were witnesses to be examined and cross-examined. The skilful construction of pleadings became a branch of legal learning distinct from the actual laying of the proofs for the pleadings before the Court, and the maintenance of their validity in court. The art of the special pleader falls apart from the art of the advocate.2 The attorney who is brought into close contact with his client collects the facts and the proofs; either he or the special pleader puts them into shape, according to the minute and technical rules of pleading; the serjeant or the apprentice conducts the case raised by the pleadings through the Court, maintaining their validity, attempting to prove by his witnesses or documents the issues of fact, and arguing the issues of law.3

In describing these changes we have gone beyond the period of the Year Books. Neither the changes nor their effects were fully felt till well on into the sixteenth century. We shall here only briefly indicate their effects in order that we may be the better able to appreciate the differences between the mediæval and the modern law and law report.

(1) These changes affected the jury. When the pleadings were drawn up and the issue fixed before the parties came into court, when the evidence was given after the jury had been summoned, it is clear that the character of the jury will change from that of witnesses to that of judges of the facts.1 When this change has taken place the importance of drawing the jury from the locality of the disputed occurrence will be lessened. Thus many cases turning upon disputes as to venue which we find in the Year Books become obsolete. (2) They affected the Court. The practice of summoning witnesses to testify to the Court was the direct cause of the growth of our modern law of evidence, and of the growth of new modes of controlling the jury suited to the jury’s new position of judges of fact.2 (3) They probably affected the legal profession. They introduced a distinction between those who prepared the pleadings and settled the issue and those who conducted the case in court. It was in the sixteenth century that the Inns of Court began to insist upon the exclusion of attorneys.3 It may be that the new division of duties which these changes introduced helped to accentuate an existing division in the legal profession. The old distinction between the narrator and the attorney4 was sharpened and perpetuated by a new arrangement of the duties of the profession. (4) They certainly affected the style of the law report. We must know the pleadings to understand the argument and the decision; but it is the argument and the decision in which the interest of the case centres. Decisions which turn on mere matters of fact can be eliminated. Arguments or dicta which have no bearing upon the judgment can be likewise eliminated. Thus the modern report is no mere account of conversations between judge and counsel, leading to the formulation of an issue, in which it is difficult to distinguish argument from decision, and decision from dictum; the issue is already defined; and what is reported is the law laid down by the Court upon the point thus defined. Two consequences flowed from this. In the first place the argument of counsel tends to diminish in importance compared with the ruling of the judge. We have only to compare Plowden’s or Coke’s reports with our modern law reports to see the truth of this. In the second place it becomes possible to cite a case by name for the decision of a distinct point. The reports in the Year Books are, as we have said, reports of arguments upon legal topics relevant and irrelevant to the issue. One case will often touch upon many points: there are comparatively few cases which we could cite by name as laying down a special rule. For this reason the Year Books made excellent material for Abridgements; we could hardly construct from them a volume of leading cases. (5) Naturally these changes had a great effect upon the law. The newer mode of reporting which was thereby made possible tended to greater precision in the statement of the law—to a greater certainty and fixity in its principles. No doubt the new mode of written pleading tended to verbal refinements and subtleties in the statement of the case which too often defeated justice.1 As Roger North points out, the pleaders were less under the control of the Court than they had been in the old days.2 Perhaps, too, the greater fixity in the rules of law, which rested on the definite authority of well-known decisions, made the law less flexible than it was in the days when the mode of reporting made it necessary to cite discussions of, rather than decisions upon, a given rule of law. These difficulties were felt in the eighteenth and nineteenth centuries. In the sixteenth and seventeenth centuries the advantages of clearness and certainty must have been felt by both lawyers and laymen. A case which really settled a point upon which it was possible to cite many conflicting dicta from the Year Books must have been welcome to all. The separation of such things as the pleadings, the evidence for the statements of fact contained in the pleadings, and the decision was necessary in the interests of legal development. That the new rules which took the place of the old were perfect no one can assert. But we who saw the latter end of these new rules, and their gradual reform or abolition, will not be able to do them justice unless we look at them, not from the point of view of our modern needs, but from the point of view of the old system as we see it in the Year Books. Under these new rules sprang up the greater part of our modern common law, which in our own day has supplied the material for many excellent codifying statutes. As the Formula in Roman law bridged the gap between the period of the Legis Actiones and the procedure of the later Empire, so our rules of procedure under the régime of the strict law of pleading bridged the gap between the period of the Year Books and the modern Rules of the Supreme Court. In both cases the foundations of the greater part of what is valuable was laid in this intermediate period.

The Year Books represent the initial stage of the purely professional development of the common law. They picture for us that stage in a more personal and a more vivid way than any subsequent stage is pictured. Law reporting is in its youth. The law reporters do not, as we have seen, deem it beneath their dignity to notice the external incidents, the ‘scenes in court,’ which pass before their eyes.1 They give us what they see, and combine the functions of the journalist and the skilled legal reporter. For all that, we can see that the strength and the weakness of a purely professional development of law is much the same then as now. Its strength is the logical grouping of confused facts under general principles, the application of those principles in detail to new states of fact, the ingenuity with which old principles and old remedies are restricted or extended to meet the new needs, physical, commercial, or moral, of another age. We see these qualities most strikingly displayed in the gradual development of new principles of delictual liability, and new principles of contract, in the recognition of the interest of the lessee for years and the copyholder. Its weakness is caused largely by the very defects which are inherent in its virtues. It cannot take large views as to the state of this or that branch of the law. It can only advance step by step from precedent to precedent. It cannot disregard the logical consequences of its principles, though in practice their strict application may be inconvenient. It is loath to admit new principles, and will not do so unless compelled by such considerations as the loss of business consequent upon the competition of a rival Court. If once a rule or a set of rules have become established they cannot be removed, however great a hindrance they become. They can only be explained or modified; with the result that the rule with the modifications and exceptions added becomes a greater nuisance than the original rule itself. We can see from the Year Books that a purely professional development is not good for the health of any legal system. The unrestrained efforts of a hierarchy of professional lawyers is apt to produce results similar to those attributed by Maine1 to the unrestrained efforts of a hierarchy of priests; ‘usage which is reasonable generates usage which is unreasonable.’ English law at the close of the Middle Ages was suffering, as it suffered at the close of the eighteen century, from a development too exclusively professional. At both periods it stood in urgent need of revision by the light of outside public opinion, if it was to meet the new requirements of another age.

39.

THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN AMERICA AND ENGLAND1

By Charles McGuffey Hepburn2

The word “code” as a term of law

THE word “code” is of comparatively recent use by American and English lawyers. As late as 1850 its appearance among our terms of law was apt to excite remark, so rarely was it then found in such company;3 and its derivations “codify” and “codification” had scarcely escaped from the ridicule and abuse which had been heaped upon them as barbarous innovations in a bad cause. Apart from its derivations, however, “code” is an old word in English. It had appeared there, coming out of the Latin through the French, as early as the days of Chaucer; apparently it was on a secure footing in the language at the beginning of the fifteenth century. But at the beginning of the nineteenth century “code” was still without standing in the vocabulary of our law, on either side of the Atlantic.

Early use of “code” in English as a lay word

Its general use in English meanwhile had been that of a lay term, and of vague import. Because of the etymological meaning and use of its Latin original—codex, or caudex, the trunk of a tree, and hence the wax-smeared tablet of wood originally used by the ancients in writing, and so the writing itself—“code” in English might convey, and to some extent did convey, the general notion of anything reduced to writing. It is synonymous in most of the early dictionaries with our native word “book,” whose etymology, curiously enough, it parallels. More particularly it denoted a collection of writings. At the close of the eighteenth century Paley refers, as a matter of course, to the Bible as consisting of two “codes,” the “code, or collection, of Christian sacred writings” and the “code, or collection, of Jewish sacred writings.” More often, the word, while still a lay term, had a flavor of the law. Whether or not our older dictionaries define it merely as a “book,” “a volume,” they steadily define it as “a book of the civil law”; for the best-known collections of Roman law bore each the name of codex.

These two meanings are the only meanings which “code,” when used by itself in English, was popularly supposed to bear, until about the year 1800. It had no definite reference to any aspect of English law. When qualified, the word might indeed denote several distinct things in the field of law, widely separated in time and in their natures. It could refer to the code of Theodosius, published in the fifth century, or to the more famous code of Justinian, published a century later. The Ordonnances of Louis the Fourteenth might be called a code. The collection of Prussian laws which was published in French and in German under the auspices of Frederick the Great bore the name of “Code Frederic.”

Its long absence from our legal nomenclature, and the significance thereof

But all these applications of the word, both general and specific, lay outside of English and American law. “Code” found no place in Jacob’s Dictionary “explaining the rise, progress, and present state of the English law”; even ten editions and the added researches of Tomlins had failed to note it as a term of our jurisprudence as late as the year 1797.

The real significance of this should not be overlooked. It does not lie in the absence of the word from our legal nomenclature, but in the absence of the thing from our legal system. The word was at hand, ready for use, but at this time, the beginning of the nineteenth century, there was no one thing, actual or clearly designed, in the legal system of either England or the United States, to which “code” was naturally and specifically applicable.

Appearance of “code” as a term of modern law

A little after the year 1800 the word began to come into use among English and American lawyers as denoting something new in the scope and purpose of our jurisprudence. The French codes, promulgated at short intervals and with reiterated emphasis between the years 1804 and 1810;1 the writings of Jeremy Bentham, before and after this period—notably his View of a Complete Code of Laws, his offer to the president of the United States, and afterwards to the governor of every state, to prepare a code for the use of the American States, “or such of them, if any, as may see reason to give their acceptance to it,”2 his Codification Proposal, addressed “to all nations professing liberal opinions”; the codes actually drafted by Edward Livingston for the State of Louisiana,—these and other causes operated in the opening years of the nineteenth century to give the ancient word “code” an effective introduction as an important term of modern law.3 They gave it also a suggestive embodiment. It presently came to stand for something tangible in our science of law. More than this, it became the watchword of a new and aggressive spirit of law reform on both sides of the Atlantic.1 And it is significant of the progress which this reform has already made that the legal neologism “code” is now in the most familiar daily use by both the bench and the bar of all the United States.

Where code pleading of this type prevails

Apart from any question as to the merits of this type of pleading, its geographical extent gives it an easy preeminence over every other American and English statutory pleading, and over what is left of common law pleading. The latter was not so wide-spread in its palmiest days. For “code pleading” has already supplanted it or usurped its natural place in twenty-seven states of the American Union, and in essentials if not in the very letter has dispossessed common law pleading in its ancestral home, even in England, and found a way into India, into the colonies of Australia, into the Dominion of Canada, and widely elsewhere among the British Possessions. Following the sway of the Anglo-Saxon, it has encircled the earth. It may well claim the respect which is due to widest dominion.

Within the American Union code pleading now prevails in four of the Atlantic States, in three of the Central States, and almost exclusively in the West—in Connecticut, New York, North Carolina, and South Carolina; in Kentucky, Ohio, and Indiana; and through the vast region occupied by the contiguous commonwealths of Wisconsin, Minnesota, Iowa, Missouri, Arkansas, Oklahoma, Kansas, Nebraska, South Dakota, North Dakota, Montana, Wyoming, Colorado, Arizona, Utah, Nevada, Idaho, Washington, Oregon, and California.

The twenty-seven states named above make up what are commonly called the “code states”; there is a tendency to group all the other members of the Union as “common law states.” But here a distinction or two must be kept in mind. In every one of the United States statutory modifications of the older procedure have been so many and so great that the science of common law pleading no longer exists anywhere with us in its entirety. By “common law states,” then, is to be understood those states in which the pleading is partly according to common law rules, whether now existing as unwritten law or in the form of statutory enactments, and partly according to new statutory requirements, with the common law element predominating. The term may be applied, with more or less appropriateness, to the States of Maine,1 New Hampshire, Vermont, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and Florida, Illinois, and Michigan, the Territory of New Mexico, and the District of Columbia.

But not all the remaining states are “common law states” even in this loose sense. Massachusetts, Maryland, Tennessee, Georgia, Alabama, Mississippi, and Texas have not established “code pleading” in the sense already explained, but they have established fairly complete statutory systems, which, like “code pleading,” arise out of the common law,2 and in other respects are very near akin to “code pleading.” In a sharply drawn division between “code states” and “common law states,” they are to be ranked with the former. For convenience they may be referred to as quasi-code states.

The barbarian invasion of the codes

The change from common law pleading to code pleading of the type referred to in the preceding chapter came, when it did come, as suddenly as a barbarian invasion; and for many years it was hotly resisted as something barbarous by a host of able practitioners. Conservative lawyers have scarcely yet ceased to ascribe the change to a “love of innovation,” to “barbaric empiricism,” to the “suggestions of sciolists, who invent new codes and systems of pleading to order.”1

But such were far from being its real causes. The overthrow of common law pleading was not due to a mere whim of legislative vandalism. Its causes had grown out of an urgent, practical, long-felt need, out of an oft-repeated failure of justice, out of a public sense of substantial injustice. They had been gathering strength for centuries. Their beginnings lay in the very foundations of our older systems of pleading.

Their true source

Considered in their most general aspects, the causes of the change may be said to rest in one—an inveterate incongruity between our law of procedure and our substantive law. The former had early lost the power of developing along with the substantive law. It had petrified while our modern substantive law was still in its budding growth. But the chief grounds of complaint which were urged against common law pleading were more specific. They related to the wall of separation between legal and equitable relief; to the labyrinth of arbitrary forms of action at law; to the artificial restrictions of the common law as to joining parties and as to joining causes of action; to the concealment of the real facts of a case through the verbiage or the vagueness of common law pleading.

Nor did legislation in England or America omit all efforts to relieve the suitors. But there was little substantial progress. As formerly, so now, the task of change, when approached at all, was approached with trembling hands. In the four hundred years which preceded the American Revolution, in the seventy years which followed it, the reformatory statutes were comparatively few in number and all were timid in spirit. So timid and imperfect were they that the root of the evil remained untouched. The real causes of a mischief which was felt by all lay embedded in the foundation of a great and venerable system. They were not easily reached; their removal was not to be dreamed of. Meanwhile, our substantive rights steadily grew in number and complexity, and the art of pleading tended more and more to impede the practical administration of justice. “What would Sir Matthew Hale have said had he lived in these times of nicety and curiosity?” queried a learned English lawyer in 1820—“times in which pleading seems to be involved in all that perplexity can suggest or prolixity supply.”1 And what was true in England was true also in most of the American states, for the English precedents, brought to this country at the time of their most “sterile exuberance,” had been copied by our practitioners with painstaking care. On both sides of the Atlantic delays and expenses continued to wear out the patience of litigants and to confiscate their property. A steadily increasing number of suitors, driven to and fro from law to equity and from equity to law, entangled in a labyrinth of actions, or lost in a wilderness of words, suffered what they felt and knew to be a practical and substantial injustice. The demand for relief became more and more urgent, and slowly took form and movement.

The new movement in England Its rise—Jeremy Bentham

This growing demand was not a formless clamor of ignorance. Here and there among the lawyers were critical minds who saw the need for a change; and the cause of reform found a champion—as able, bold, and tireless as any reform could wish—in Jeremy Bentham.

His entrance into the history of English and American law is one of its dramatic incidents. He had been a pupil of Blackstone. In the year 1769, when Bentham was but twenty-one, the first complete edition of Blackstone’s Commentaries was published. High as Blackstone still stands in the esteem of lawyers on both sides of the Atlantic, the excellence of his book as a popular exposition of law is probably underrated among us. It is not only the typical achievement of the eighteenth century, in the history of our law,1 but it was the first book in which the general system of English law had been set forth in an attractive form, even with consummate literary skill. For the first time in our history the study of legal rules was not repellent. And the work had a further claim upon contemporary popularity. Our ancient legal doctrines, thus placed as in the gladsome light of jurisprudence, were also treated by Blackstone with the reverent spirit in which the rank and file of the profession then delighted to consider them, as worthy of their highest veneration. For Blackstone was an excellent representative of the legal mind of his day—that conservative mental attitude which regards whatever is established law as an immutable principle of justice; and he had expressed this spirit of the times more clearly, more elegantly, than it had ever been expressed before.

But hardly had Blackstone’s able and splendid laudation of the common law been heard than his pupil, Bentham, sounded a rude blast of opposition. It was the beginning of a long-continued assault upon entrenched abuses in the administration of justice. It was the first note of a contest whose end is not yet, but which has already accomplished the greatest revolution known in our law within the last six centuries.

The year for the beginning of this revolution, if a precise date can be given to so gradual a movement, may be said to have been 1776. It was the year of Bentham’s first book, his “Fragment on Government,” which, in general, was a criticism of Blackstone’s Commentaries at large and in particular was an attack upon his “Introduction.”2 Bentham himself has described his pamphlet—it was hardly more than that—as “the very first publication by which men at large were invited to break loose from the trammels of authority and ancestor-worship on the field of law.” But Bentham’s effective work came later. It continued for half a century, steadily growing in intensity, and ceased only when death stayed his hand in 1832.1

Bentham’s later influence.

For many years Bentham’s was the only voice raised against “ancestor-worship on the field of law.” His bold and vigorous attacks, however, set men to thinking. Slowly thoughtful lawyers gathered about him. His influence was felt on both sides of the Atlantic.2 His cherished plans, often radical to the extreme, were indeed never to be realized in full, at least within his century. Many of them were impracticable even according to present standards; nor have Anglo-Saxon peoples been able to cut loose from their historical development. But Bentham’s criticisms and those of his followers gave point and force to demands for relief which were founded on something more than theory—on a long-felt, substantial failure of justice. In some measure, also, the suggestions of Bentham’s analytical school supplied lines of action for reformers who urged less radical changes. “I do not know a single law reform effected since Bentham’s day,” said Sir Henry Maine in 1874, “which cannot be traced to his influence.”1 By slow degrees the movement grew until, about the year 1825, it assumed more than respectable proportions in both England and America.

Its first fruits

(a)

Parliamentary commissions

Excepting the sporadic case of the Livingston codes in Louisiana,2 the first tangible results of this movement appeared in England. Beginning in 1828—four years after the appearance of Stephen on Pleading—parliament appointed a series of commissions to inquire into the law of procedure, and other subjects, and report such changes as should be enacted. Very radical suggestions were considered by these commissions, but their recommendations to parliament, especially as to matters of pleading, were at first extremely conservative. It was still a prevailing doctrine that the existing rules of common law pleading were founded “in strong sense and in the soundest and closest logic, and so appear when well understood and explained.” The venerable system, it was said, could be adapted to the demands of modern times without impairing its integrity. Any attempt to erect a new system would cause greater mischief than the retention of the old.

This halting conservatism in the earlier stages of the movement is well shown in a report made in 1831 by the commissioners on common law practice and procedure.

Whether the other great evil, the separate administration of law and equity, should be abolished was hardly deemed a practical question at this time. It was apparently the general impression that the distinct systems for the administration of legal and equitable rights were founded in the nature of eternal entities. Nor was the question of their fusion brought to an issue in England until about thirty years later.

(b)

A spirit of criticism

Apart from actual legislation, these commissions and the movement of which they were a part had this result, at least: they shook the self-satisfied conservatism of the English bench and bar. A spirit of criticism was abroad in the land. Many became questioners of things established, even in the province of the law. So marked, indeed, was this new spirit among English lawyers that it presently attracted attention on the other side of the Atlantic, and roused a similar spirit there. “The zeal and activity with which the reform in the law has been conducted in England within the last few years,” said an American law writer in 1832,1 “present a strong contrast to the indifference with which the subject had for a long time previously been regarded in that country by the great body, both of the profession and the public. Till recently the lawyers, with very few exceptions, appeared to feel themselves bound, on all occasions, to stand forward in defence of the system under which they had been brought up. But now they are among the most busy in examining the law, pointing out its defects, and suggesting remedies.”

(c)

Rules of Hilary Term

The time, however, was not yet ripe for a radical reform. The official recommendations made by the parliamentary commissions referred to above fell far short of the suggestions considered by them; and the legislation which followed was no less conservative. It found its chief expression in the Rules of Court of Hilary term—the “New Rules” of 1834.1 But these hardly touched the weightier matters of reform. Fear of plunging into a chaos brought the movement to a pause at the very threshold of its work. The “new rules” were a compromise—a lame and unhappy compromise, as it turned out—between the conservatism of six centuries and the demand of modern criticism, of modern convenience; and they had a marked professional leaning towards the past rather than the future. Their chief aim was to remedy what were essentially but incidental defects and faults in the existing systems, the vagueness of general pleading, the prolixity of special pleading, the necessity of certain formal allegations. However well intended and highly praised, the “new rules” amounted to little more than “an attempt to stave off an immediate pressing difficulty by a patchwork scheme of modification and suspension.” And, like most such attempts, they not only fell behind the real needs of the day, but tended to retard the progress of reform. Through them the real reform of common law procedure in England was put off for twenty years.

The preliminary movement in the United States

Meanwhile, a similar movement had begun in America and, after some delay, was making startling progress here. Once fairly under way, the reform movement in several of the United States went at a leap beyond the boldest designs then entertained in England. The most radical schemes of reform were hastily vested with the authority of law. And it is to be remembered that the enactment of what was then appropriately enough called the “American system” preceded and, in a large measure, inspired the sweeping changes which characterize the English legislation of 1873.

Its premature expression in the Livingston codes

But just here it is worth while to go back a little in the history of American law and notice the curious episode of the Livingston codes. Speaking generally, the movement towards a statutory reform of common law procedure assumed a definite and aggressive shape in the United States at a somewhat later day than in England; but the new critical spirit whose earlier effects in England have been noticed had one tangible result of moment on this side of the Atlantic at a very much earlier day than these parliamentary commissions. It occurred in Louisiana under conditions which were quite out of the ordinary. Shortly after the acquisition of that territory by the United States, the question arose whether the provisions of the federal constitution as to the right of trial by jury and procedure according to the common law did not at one stroke impose upon Louisiana the whole system of English legal practice, unknown and repugnant although it was there. In 1804 a test case was made up. After earnest discussion the court held that, although the constitution of the United States required trial by jury, and made obligatory the observance of common law rules in appellate proceedings in federal courts, yet the people of Louisiana were free, in much the greater part of their legal procedure, to follow a different system. The way was thus opened for a liberal and rational treatment of the whole subject of judicial procedure. It was such an opportunity as Bentham dreamed of—such a result as, in 1804, was to be found nowhere else in the United States or in England. And, as it happened, a man worthy of the occasion was at hand. Edward Livingston had removed from New York to Louisiana shortly before the case just referred to came up for trial. He appeared for those who opposed the adoption of the common law procedure; and, following up his success in the courts, he recommended to the legislature a simplification of the existing system, which was a medley of civil and Spanish law. His suggestion meeting with approval, Livingston promptly drafted what was in effect a new code of procedure. It was adopted by the Louisiana legislature in 1805.1 Nor did the impulse cease with this. Fifteen years later the legislature provided for the appointment “of a person learned in the law” who should prepare and present a code of criminal law, “designating all criminal offenses punishable by law, defining the same in clear and explicit terms, designating the punishment to be inflicted on each, laying down the rules of evidence on trials, directing the whole mode of procedure, and pointing out the duties of the judicial and executive officers in the performance of their functions under it.”2

A little later this very comprehensive task was entrusted by the legislature to the hands of Mr. Livingston. With characteristic thoroughness he prepared complete codes of crimes and punishments, procedure, and evidence, and explained the nature of each with an elaborate introduction. His plan had been reported in advance to the Louisiana legislature; he had been earnestly requested to complete it, and he did complete it. But the codes when completed were not enacted in Louisiana. Their influence, however, both at home and abroad, was hardly the less for that. They were received with the highest praise in America and in Europe, and that by recognized leaders in the law. They have since proved “an unfailing fountain of reforms” on both sides of the Atlantic. Their influence was especially noteworthy in this respect: they went far towards demonstrating the advantages of codification “in giving precision, specification, accuracy, and moderation” to a system of law.1 They appeared, indeed, before the times were ripe for such a reform, but in no small measure they prepared the minds of men for the great changes which came a quarter of a century later. It is worth noting also, as indicating the intimate, mutual bearings of the reform movements in England and America, that Livingston looked to Bentham as his teacher in all these things.2

Rise of the New York code

Important and interesting as they were, the Livingston codes can hardly, however, be regarded as directly influencing the rise of code pleading in this country. The agitation which was immediately connected with that event began a little after the year 1826. It was most conspicuous in the State of New York, where the legal procedure had been modeled very closely after the English system, and where the relations with the mother country had continued to be both constant and intimate.3 By 1842 the movement had made such progress that a bill was introduced into the New York legislature “for the more simple and speedy administration of justice in civil cases in the courts of common law”; and, since law and equity were then separated by the New York constitution, another bill was introduced to bring about a like result in the courts of equity. These measures failed of their intended effect at the time, but, four years later, when the New York constitution was revised, the demand for a radical reform found more emphatic expression, and a remedy was attempted. The new constitution, adopted in November, 1846, abolished the court of chancery, created a court “having general jurisdiction in law and equity,”1 and required that the next legislature should provide for the appointment of three commissioners, whose duty it should be “to revise, reform, simplify, and abridge the rules and practice, pleadings, forms, and proceedings of the courts of record of this state, and to report thereon to the legislature.”2

This contemplated reform, even at its outset, was part of a larger plan, that of codifying the whole law, both substantive and adjective. For the New York constitution of 1846 provided also that the legislature, at its first session after the adoption of the constitution, should appoint three commissioners “to reduce into a written and systematic code the whole body of the law of this state, or so much and such parts thereof as to the said commissioners shall seem practicable and expedient.”3 The commission thus appointed was distinct from the one referred to above and differently constituted.4 Its members were designated in the New York statutes as “Commissioners of the Code,” while the members of the other bore the statutory name of “Commissioners on Practice and Pleadings.” The two commissions so divided the entire work between them that one took the codification of the law of procedure, and the other, the “Commissioners of the Code,” took the codification of the rest of the law. The work of this commission will be noticed hereafter; it is with the commission on practice and pleadings that we have now to do.

When it came to the appointment of the latter commissioners, the legislature prescribed their duty somewhat more explicitly, instructing them, in accordance with a memorial from fifty lawyers of New York, “to provide for the abolition of the present forms of action and pleadings in cases at common law; for a uniform course of proceedings in all cases whether of legal or equitable cognizance, and for the abandonment of all Latin and other foreign tongues, so far as the same shall by them be deemed practicable, and of any form and proceeding not necessary to ascertain or preserve the rights of the parties.”1

Nature of the undertaking

Most of the lawyers and many of the general public were hostile to so radical a change.2 The task imposed was, indeed, unparalleled in the history of English or American jurisprudence. A great and venerable system, deep-rooted in the past of a conservative profession and overshadowing the land, was to be supplanted in a day. The prejudices of thousands of practitioners must be disregarded and the habits of their daily lives reversed; the active opposition of many able men recognized as profoundly learned in the law must be overborne; a community accustomed, especially in such matters, to be led by their lawyers must be assured of safety in turning aside to follow a few reformers. In the face of such obstacles the three commissioners were asked to design and construct a new system which they could recommend as capable of doing all the work of the old, and doing it better.

Drafting the code of 1848

One member of the commission resigned rather than comply with the command of the statute. The other two, Mr. Arphaxed Loomis and Mr. David Graham, had publicly expressed themselves against changes so sweeping as those contemplated; but, disregarding opinions no longer held, they now accepted the appointment in the spirit in which it was made. Most opportunely, also, Mr. David Dudley Field, who at first had been thought too radical in his plans of reform to hold a place on the commission, was chosen to fill the vacancy, and the three united in the promptest execution of the work.

Some portions of the proposed code were already formulated in the two bills which had been submitted to the legislature in 1842, “for the more simple and speedy administration of justice in civil cases.” But, with all allowances, it is seldom that so great a work is accomplished in so short a time. The commission was first appointed by the legislature in April, 1847, and reorganized, as indicated above, in the following September; five months later it reported the draft of an act, in fifteen chapters, and nearly four hundred annotated sections, “to simplify and abridge the practice, pleadings, and proceedings of the court of this state.”

Impetuous haste in New York

So far we have dealt with code pleading in its formative state; we now come to its realizations. The official draft of the New York code, framed and filled in, as we have seen, with astonishing rapidity, was passed into an operating law no less quickly. The commissioners’ bill, “to simplify and abridge the practice, pleadings, and proceedings” of the New York courts, having been reported to the legislature about the beginning of March, 1848, was considered, amended in some eighty of its three hundred and ninety-one sections, and passed before the middle of the following month.1 And the new law, revolutionary as it was in theory and in its practical effects, went into operation on the first day of the following July.

Less expedition might have imperiled the whole enterprise. Opposition to the measure was bitter and intense, among both lawyers and laymen. Given time for organization, the “sons of Zeruiah,” it was feared, might again, as in Cromwell’s day,1 have been too strong for the spirit of law reform. But, being once clothed with the authority of actual, operating law, the new movement was better able to make head against that “antipathy to reformation” which lawyers feel, and, perhaps, are bound to feel.

The course in other states and countries

If the legislation thus begun had gone no further, the result would still have been among the great events in the history of modern law. But the really significant thing here is that the enactment of this New York code opened, as it were, the floodgates of reformatory legislation, and determined the course of its progress. Within five years after 1848, the older systems of pleading at law and in equity had been dispossessed of their inheritance by similar codes in Missouri, California, Iowa, Kentucky, Minnesota, Indiana, and Ohio; the civil procedure of Mississippi, Massachusetts, and Alabama had been largely reformed upon somewhat similar lines; the procedure of the English courts of law and of equity had been simplified by the acts of 1852. Within twenty-five years, that is, by the end of 1873, the New York code of 1848 had been enacted in substance, and often in its very letter, by sixteen other American commonwealths—Oregon, Washington, Nebraska, Wisconsin, Kansas, Nevada, Dakota, Arizona, Montana, Idaho, North Carolina, Wyoming, Arkansas, South Carolina, Florida,2 and Utah; the procedure on the law side of the federal courts had been brought into conformity with these same principles, wherever they prevailed in the state courts; and in England the great Judicature Act of 1873 had prescribed for our most ancient courts of law and of equity a more radical change of this same general nature than any which had preceded it in America—a greater change withal than any other in English law for six centuries.

Distinction in the order of treatment

Two or three distinctions are to be kept in mind—primarily, the distinction between the codes of the United States and the codes of the British Empire. They belong, indeed, to one movement, but the latter are a more recent development of code pleading. Their influence, however, is apparent in one or two of our later codes, that of Connecticut, for instance. The British codes, moreover, are the result of a gradual movement, whereas with us code pleading came per saltum. But the beginnings of the movement in both cases are not far apart. The year 1848 may be fixed as the date in America; the year 1852, as the date in England.

Within the United States also a distinction is to be kept in mind. Here the reform has three aspects. A majority of all the states have followed the lead of New York with more than common unanimity. For convenience we may call them the “code states,” which in fact is their more common designation in our legal nomenclature. Some states, however, while reforming their procedure upon similar lines, have not ventured quite so radical a change. These can not be called common law states—their departure from the older procedure is too radical for that. They are more nearly code states, but it is confusing to refer to them as such. Perhaps the most convenient way will be to group them under a distinct head, as “quasi-code states.” The progress of the change has affected also the procedure of the federal courts, but in a different and altogether unique way—their procedure at law being made to conform to that of the state in which the court is sitting, while their procedure in equity remains independent. The enactment of the reformed procedure in the United States has, therefore, these three heads, (1) Its progress in the “code states”—the procession, as it were, of the codes, their uniformity, and their stability; (2) Its progress in the quasi-code states; (3) Its progress in the federal courts.

In the British Empire the reform movement has been kept more closely within one path. The mother country leads the way; the colonial legislatures follow in her footsteps. The model here is found in the Judicature Acts and Rules of 1873 and 1875.

THE CODE STATES

Stability of the codes—In general

Drafted in haste and hurriedly enacted, as most of the codes were, they have naturally enough suffered frequent alteration at the hands of the legislatures. Change begot change in some codes with startling rapidity. But, in view of the character of the original legislation—its novelty, its wide scope, its varied application, the changes have been less radical and scarcely more frequent than might fairly have been expected. It held true of the codes as of legislation in general that a system complete and perfect in all its parts can not be struck out at a heat by the most able law-giver that ever lived. “No code,” says Austin, “can be perfect.”1 Almost all the codes, however, passed through the experimental stages and became established systems without material departure from the form in which they were first enacted. But there are two notable exceptions in New York and Florida.

The Experiment in New York

After twenty-five years of amendatory legislation2 and judicial construction, the New York code had reached, as its friends hoped, a definite and secure position. It had, indeed, sustained five hundred and fifty-one changes; the aggregate of its amendments had exceeded the total number of its sections. But many of these amendments were formal, and many were repeated attempts to frame the same section in a satisfactory form. Of the four hundred and seventy-three sections in the revised code of 1849, nearly one-half had never been amended in 1876. And among them were found the more important and substantial features of the original act. Moreover, the code as a whole had received extended judicial discussion; the practice provided by it had become fairly well understood. All reasonable criticism, it was believed, had been answered or was in process of being answered, without another revolutionary change.1

The New York revision in 1876

But at this point the spirit of innovation attacked the code, with serious results. In 1870 the New York legislature appointed a commission of three to revise and simplify all the general statutes of the state.2 Six years later this commission reported a bill for a new code of procedure, covering the ground of the existing code; and the bill was presently passed in an act of thirteen chapters and fourteen hundred and ninety-six sections, relating to the jurisdiction of the courts and the ordinary proceedings in courts of record. To this new code the statute gave a new name, the “Code of Remedial Justice,” for which, however, the popular phrase, the “Code of Civil Procedure,” was soon substituted by another enactment.3

Its characteristics

While retaining the fundamental requirements of its predecessor, the new code differed from it widely in phraseology and in the nature of its provisions. It was reactionary in spirit. It showed a vast increase in bulk—a figure of Falstaffian proportions among the other codes. It was “built up under a microscope.” Its requirements ran into the most minute and trivial details of practice.1 So smothered in details were its principles that New York practitioners have since been working under a civil procedure which scarcely any approve, and which is far enough from the ideal of those who framed the original code, and from what they succeeded in constructing. However defective and faulty the code of 1848 may have been, the faults of this code of 1876 are greater still. Such degree of clearness as the old code possessed is obscured; its conciseness is rendered diffuse; its simplicity is made intricate; its authority, settled by thirty years of judicial construction, was destroyed, and the task of reconstruction again became necessary.2

Like the “Code of Procedure” in 1848, the “Code of Remedial Justice” in 1876 was but part of a proposed code of civil procedure. The remainder of the commissioners’ draft was reported in 1877 in the form of a bill containing nine chapters to be added to the thirteen chapters of the new code. This bill, however, met with such persistent opposition that it did not become a law until 1880.3 In the meantime the first thirteen chapters had been repeatedly amended. And from 1880 down “The Completed Code of Civil Procedure,” now numbering twenty-two chapters and almost four thousand sections, has been amended or supplemented at every session of the legislature no less copiously than before. With its annotations, the revised code makes “three gigantic volumes which appall the legal mind, and fill the lay mind with awe and dismay.”4

The proposed New York revision of 1896

Hasty, unsystematic, and piecemeal, these multitudinous changes only confirmed the character of this New York code of civil procedure as a “Brobdignagian conglomeration of heterogeneous rules of law and practice.” The evil grew to such proportions that in June, 1895, the legislature passed an act requiring the governor of New York to appoint a commission to “examine the code of procedure of this state and the codes of procedure and practice acts in force in other states and countries, and the rules of court adopted in connection therewith, and report thereon to the next legislature in what respects the civil procedure of this state can be revised, condensed, and simplified.”1 This commission was appointed at once. It speedily ascertained that the “very decided preponderance of opinion” among New York lawyers was in favor of a general revision of their code. The commissioners themselves were clear in the conviction that the civil procedure of New York could “doubtless be revised, condensed, and simplified, and the administration of justice thereby greatly improved.”

The commissioners’ recommendations, and the attitude of the bar

In December, 1895, they made a preliminary and suggestive report, looking to a thorough revision upon an historical basis.

In August, 1895, the commission sent to the judges and to nearly ten thousand other lawyers of New York a circular defining the possible scope of the proposed revision, and asking for the bar’s opinion upon the subject. The suggestions thus evoked have been many and varied. That the New York code of 1876 stands in need of revision appears to be taken for granted. “It is universally and properly condemned as the product of unskilled workmen, ill equipped for the task.”1 But some members of the New York bar, constrained by that “antipathy to reformation” which shows itself so quickly when a change in the law is proposed, urge that the code be let alone. Their argument is the argument of inconvenience. They would “avoid the uncertainty in practice which may be created by a new code,” and are far from claiming that the existing code is as systematic and convenient as it should be. Others suggest that the code of 1848 be restored as it stood in 1876, before the adoption of the “code of civil procedure.” Others point to the English reforms of 1873 and 1875—the judicature acts and rules2 —as in the true line of progress. Others are still more radical, and recommend an assimilation to the German or French practice. But the prevailing tone, at large as in the commission, appears to be in favor of a conservative reform upon an historical and comparative basis, with a view to embodying the best which the experience of other states and countries has to offer on the subject of a codified civil procedure.

The conservatism of the new movement

This aspect of the present reform movement in New York—its conservatism, but with reference to the results attained not in New York alone, but in all other commonwealths which have tried the experiment of codification—is very significant, so marked is it among some who recognize most clearly the faults of the present system of code pleading.

The possible effect of the new movement

It is a strange sight to see these conservative forces of the bar, so long and so bitterly opposed to the New York code, thus arrayed in its support. But if this conservatism does not result in stagnation, if it merely keeps the movement to the lines of cautious progress, the outcome may be of farreaching benefit, although it fall short of “embodying the best results of all human experience on the question.”

The effect on other states is, of course, very problematical. General legislation by New York seldom fails to influence legislation far and wide in the Union. But the “code of civil procedure” which New York enacted in 1876 is without a following in the states which so readily adopted the New York “code of procedure” of 1848. Moreover, “the completed code of civil procedure” which became a law in New York in 1880 has been far less productive of similar legislation by other states than the proposed code of civil procedure which was submitted, eo nomine, to the New York legislature in 1850 and ultimately was rejected by that state. Apparently the impulsive movement of the early fifties has largely spent its force. The states which eagerly accepted the earlier results of codification in New York show no great readiness to adopt its later results.

Historical relation of code pleading to codification in general

The inception of the New York code of procedure of 1848, as has already been indicated, was part of a much more ambitious design—that of codifying the substantive law as well as the law of procedure. Both purposes found expression in the New York constitution of 1846; and the outcome was that the codification of the substantive law was entrusted to three “commissioners of the code,” while the codification of the procedure was assigned to three “commissioners on practice and pleadings.”

The former commission accomplished very little; but the movement which resulted in its appointment had far-reaching effects further on. In 1857 a new commission was appointed, with Mr. David Dudley Field, then for some years prominent in the commission on practice and pleadings, at its head.1 Its instructions were to reduce the substantive law of the state to a systematic code consisting of three parts, a “political,” a “civil,” and a “penal code.” The political code was completed in 1860; the other two were reported to the legislature in 1865. Only one of these codes has as yet become a law in New York—the penal code, and this after sixteen years of waiting.2 The civil code, however, has on two occasions been almost in touch of its goal, having twice passed both branches of the New York legislature and failed of ultimate adoption only for want of the governor’s approval.

Complete and partial codification

But, while failing of effect at home, this code of substantive law and the others have had great influence abroad. Their career has been something like that of the New York “code of civil procedure,” which was proposed at the beginning of the fifties. In the far West especially the results have been noteworthy.

Thus the civil code and the penal code drafted by the New York commissioners were adopted as early as 1865 by the territory of Dakota, the first English commonwealth to venture upon a codification of its substantive law.3 The state of California has had a full suit of codes since 1872—a political code, a civil code, a code of civil procedure, and a penal code, which includes a code of criminal procedure as its second part. Each of the four was a separate act and is commonly published as a distinct volume.1 A similar series of codes has been completed in the Dakotas, whose activity in codifying has been quite remarkable,2 and in Montana.3

Besides these instances of all-round codification, the half century since 1848 has seen many instances of partial codification, in addition to the codes of civil procedure. The latter, indeed, make not quite half the total list of codes now extant in the United States. Notably and naturally there has been great activity in codifying the law of criminal procedure. It began in 1850, with the enactment of a penal code in California;4 and nineteen other codes of criminal procedure have followed.5 By the same showing the codes of substantive law are still few in number. But it is to be remembered that piecemeal changes of the common law here have been very numerous. The result lacks the system of a code; but the repeated incursions of legislatures into the domain of the substantive common law have very greatly diminished its extent. Many of its doctrines have been overthrown, many have been brought within the statute book.

QUASI - CODE STATES

Their aspects in general

The causes which brought on the codes of civil procedure were not peculiar to any one state. They operated more or less strongly through all the Union, with the exception of Louisiana. The result is that the older systems of pleading have been greatly modified by statute even in that minority of our commonwealths which have not adopted the new pleading. In no state of the Union has common law pleading preserved its integrity. But in some states the modified system is more nearly that of the common law than the code system. These states, for convenience of reference, we may call “common law” states. There are other non-code states, however, in which the statutory changes have gone very far in the direction of “code pleading,” as that term is commonly understood. And these states, for the sake of a better term, we may call “quasi-code states.” They comprise Mississippi, Massachusetts, Alabama, Maryland, Tennessee, Georgia, and Texas. Historically considered, the changes in their procedure rank with those in the earlier code states. And they show in a partial yet very suggestive way the impetus and general character of the reform movement in the early fifties. Its causes and effects appear in nearly every state in the Union, and on both sides of the Atlantic. The surprising thing is that, with so brave a start, the movement has gone no further than it has, either in these “quasicode” states, or in the larger field of the “code” states.

THE ENGLISH CODE

State of the reform movement in England about 1848

Before the change considered in the foregoing pages—this change from common law to code pleading in the state and the federal courts of most of the American commonwealths—had run its course, a similar yet greater revolution had occurred in the ancestral home of the common law. The movements towards this end had taken definite form in England at a somewhat earlier day than with us; the year 1832 promised much for the cause of law reform on the other side of the Atlantic. But the chief immediate results in actual legislation were some partial reforms in the chancery, and the halting rules of Hilary Term of 1834. As things stood in the first year of Victoria’s reign, English law was entering upon another lease of youth, and thinking lawyers felt the new influence. “The flood-tide of 1832 had not yet ebbed. In letters, in science, in trade and industry, there was on all hands consciousness of fresh vigor and expectation of great results. As it must needs fall out, men’s expectation was in some things beyond the mark, in some, wide of it, in many, far short of it.”1 But, in matters of procedure, the enactment of the New York code of 1848 found the English legislators still standing in doubt over the weightier questions of reform.

Influence of the first American codes

The startling character of this New York legislation, however, its radical and extensive aims, going far beyond the boldest designs then entertained in England, had a notable effect there. The practical workings of the new system were watched by English reformers with care. Its comparative success stimulated them to new efforts. “While all people,” said an English law writer of that day,2 “are agreed that reform is needed, and while the new common law commission are issuing suggestions, halting and faltering, willing, perhaps, but unable, to free their minds from that peculiar tone which long and successful practice under our present system inevitably induces—a practical people in the western hemisphere have appointed a commission, and, quietly, expeditiously, and cheaply, and out of laws similar to our own and derived from us, have created a simple, single, and intelligible judicial system, which has hitherto worked well in the state (New York) by which it was first sanctioned, and has in consequence been adopted by several other states of the American Union. And let us not forget that it is not among a poor, homely, uneducated, and simple people that this great experiment in legislation is being tried, but among a people who are our rivals in commerce, equal to us at least in intelligence, wealth, and luxury, with all the wants of a high taste of civilization, and whose laws to be successful must embrace nearly as wide a field as our own. The boldness of the attempt, and the righteousness of the motives which led to it should at least command our respect and sympathy. We venture to express a hope that the example may not be entirely lost upon ourselves, but that it will stimulate our law reformers to raise their minds at once to the contemplation of a radical and efficient reform; for they now have before them a proof that it is possible to sweep away all preëxisting laws without rushing into chaos.”

The actual legislation on the subject

Whatever the inducing causes, actual reformatory legislation on the English procedure began anew, and more vigorously than before, shortly after the year 1848. But the movement was still a cautious one. As it turned out, the English reformers were to go further than the American reform has ventured to go, but they were still resolved that a venerable system should not be overturned, as in America, at a single blow. They felt their way slowly. The enactment of their leading reformatory statutes, which began in 1852, extended through twenty years.1

The more notable changes were at first by distinct series of statutes, relating respectively to the courts of law and the court of chancery; afterwards the whole system of English courts and their pleading, at law and in equity, were recast in one series of statutes. These reformatory enactments are accordingly divided into three distinct groups: (1) a series of statutes establishing a reformed system of pleading at law—the “Common Law Procedure Acts,” so called, whose course of enactment extended through eight years from 1852;1 (2) a series of statutes establishing a reformed system of equity pleading, enacted under different titles during the course of ten years from 1852;2 and (3) the judicature acts, whose beginning was in 1873, whose amendments have run through many years, 1875, 1877, 1879, 1881, 1884, 1890, 1891, and 1894,3 and whose end is not yet.

(1)

Common law procedure acts

The first of these statutes became a law in June, 1852, and went into operation in the following October.4 It was a right extensive enactment, running to two hundred and thirty-six sections, and including two schedules of forms—a short code of procedure, as it were, for courts of law. It was followed within two years by an amending and enlarging statute of more than one hundred sections,5 which in turn was followed, six years later, by another enlarging and moderating statute, the common law procedure act of 1860.6

These statutes, destined although they were to a short life in England, were no sudden growth. They were based in the main upon the reports of distinguished law commissioners whose labors had begun and produced some positive results as early as 1831. In other words, parliament was some twenty years preparing for the partial reform effected by the common law procedure acts.

Their effect in England.

Their direct effect was in large part negative; they pruned away the faults of the older pleading at law. Still they wrought great and positive changes for the better, a few of which may be noticed here.

“Causes of action of whatever kind,” it was provided, “may be joined in the same suit, provided they be by and against the same parties.”1

Much of the old verbiage was abolished. “All statements which need not be proved, such as the statement of time, quality, quantity and value, when these are not material; the statement of losing and finding, and bailment, in actions for goods or their value; the statement of acts of trespass having been committed with force and arms, and against the peace of our Lady the Queen; the statement of promises which need not be proved, as promises in indebitatus counts, and mutual promises to perform agreements, and all statements of a like kind, shall be omitted.”2 Special demurrers also are abolished, with all the frivolous learning which they rendered necessary.3 And, still more significant, the reform breaks down part of the wall of separation between the administration of law and the administration of equity; for, under the act of 1854, several equitable defenses were permitted.4

Their influence in America

The influence of these changes was quickly felt in America. Such notable alterations in common law procedure, deliberately made at its ancestral home, where its virtues stood in the clearest light, came at an opportune moment in some of our states, which were hesitating over the problems of reform. The commissioners who framed the Iowa code of 1860 left it on record that they were “most largely indebted” to the English common law procedure acts of 1852 and 1854.1 The Maryland act of 1856, “to simplify the rules and forms of pleadings and practice in the courts of law,” was in the main a close copy from the same statutes. Other states, also, although, like Maryland, unwilling to enter upon the new and untried way of the codes, found themselves able to follow this reform by English legislation. But, curiously enough, some of these same states were not able to follow the statutory reforms which were presently to come in England; so that, while the common law procedure acts already belong to ancient history in England, they have to-day a present interest in more than one community on this side of the Atlantic. For in several of our states the movement towards a simplification of the law has gone but little, if any, beyond the point reached by these statutes.

Their short life in England

But in England they were, as I have said, only a temporary expedient, soon to give place to far more extensive and radical legislation.

They left the reform incomplete in at least two points of vital importance. The great principle that a pleading should be a plain and concise statement of the material facts alone had not yet been established—it was still possible for substance to be sacrificed to form;2 and the wall of separation between legal and equitable procedure was still retained. The drift, however, was setting very strongly towards a simple, harmonious, and systematic procedure in which substantial justice should prevail over formal justice, so strongly that the common law procedure acts make a short chapter in the history of English law. Within twenty-five years they had given place to the very comprehensive scheme for reform prescribed in the judicature acts.

(2)

Chancery reform acts

Meanwhile a similar movement was making important changes in the administration of equity. In the year 1852, the year of the first common law procedure act, parliament passed also two statutes, one “to amend the practice and course of proceeding in the High Court of Chancery,”1 and one “for the relief of suitors of the High Court of Chancery.”2 They were followed in six years by the short but important chancery amendment act of 1858.3 Four years later came a “Chancery Regulation Act, 1862,” scarcely a page in length, but very significant in its requirements.4

The drift towards fusion

It is plain to see, in these enactments, that the court of chancery and the courts of law in England were now drifting rapidly towards the idea of “fusion,” which had been given effect in the American codes not long before. The act of 1852 permits chancery to require the oral examination of witnesses before itself.5 The act of 1858 confers on chancery power to award damages in some cases, and permits it to impanel a jury for the purpose of assessing damages or trying questions of fact “before the court itself.” Upon every such trial, “the Court of Chancery,” declares the statute, “shall have the same powers, jurisdiction, and authority as belong to any judge of any of the said superior courts sitting at nisi prius.”6 The short act of 1862 goes further into the fundamentals. It required that chancery should no longer refuse or postpone the application of remedies within its jurisdiction until questions of law and fact on which the title to such remedies depended had been determined or ascertained by courts of law, but that the court of chancery must determine every question of law and fact incident to the relief sought, “whether the title to such relief or remedy be or be not incident to or dependent upon a legal right.” There was a proviso, however, quite in harmony with the principle—when questions of fact before a court of chancery could be more conveniently tried by a jury at the assizes, it was declared lawful for chancery to direct such a trial.

But these statutes, like the common law procedure acts, were tentative measures; they failed to satisfy the demand of their day. The reformed system of equity pleading which they created flourished for twenty years and then was merged, with the reformed common law pleading, in the greater system created by the judicature acts.

(3)

Judicature acts. Chief characteristic of this stage

The most characteristic thing about this stage of the movement was its “fusion” of law and equity. The mischief which arose from their separation was early recognized. Before the passage of the first common law procedure act, indeed, a commission on law reform had reported that “a consolidation of the elements of a complete remedy in the same court was obviously, not to say imperatively, necessary to the establishment of a consistent and rational system of procedure.” About the time of the third common law procedure act, 1860, three law judges publicly declared that the existence of two conflicting systems of law recognizing inconsistent and incompatible rights, administered by two tribunals, each refusing to give effect to rights which would be enforced by the other, was not only an anomaly in jurisprudence, but had been found to be attended by practical inconvenience and mischief of the most serious character. In 1869, also, a judicature commission reported that “the first step towards meeting and surmounting the evils complained of would be the consolidation of all the courts of law and equity into one court, in which should be vested all the jurisdiction exercisable by each and all the courts so consolidated.” In the following year a bill constructed in conformity with this plan was introduced into parliament, but it failed of passage.

Passage of the judicature acts

The hour, however, was now almost ripe for the revolution. A similar measure, introduced by Lord Chancellor Selborne, was carried in 1873, the first and most important of the judicature acts.1 It was followed in 1875 by an amendatory and supplemental act,2 and both came into operation at the same time, November 1, 1875.3 This was in the Chancellorship of Lord Cairns, whose name and that of Lord Selborne will, therefore, says an English writer, “forever remain associated with the greatest and probably most useful change in the way of law reform which has taken place in this country for centuries.”4 But the movement which resulted in the judicature acts had been promoted by all the recent chancellors and by most of the leading judges.

The historical bearings of the judicature acts

The general effect of the judicature act of 1873 was to sweep away the English system of common law pleading even more completely than our codes have swept it away. And yet, as with us, the practitioner in England can not afford to forget the old procedure entirely.

Both the radical nature of this latest phase of the English reform and its historical bearings may be illustrated from the remarks of Mr. Montague Crackanthrope, of the English bar, before the American Bar Association in 1896.5

“The English system of common law pleading,” said he, “was finally swept away by the English judicature act of 1873. It had been encumbered with obsolete learning, and had been terribly abused by the ingenuity of pleaders during centuries of adroit manipulation. The abuses were not, I think, original, and much had been done to remedy them; but the system had fallen into discredit, and had become the scapegoat for the sins of the profession. It was determined that it should no longer be necessary to plead formal causes of action, but that each party should tell his plain tale unfettered by technicalities, or, as the rules expressed it, that his pleading should contain, and contain only, a summary statement of the material facts on which he proposed to rely.

The change was of enormous historical importance. The old system had been the mould upon which the whole common law had been gradually formed. All legal conceptions had been defined, analyzed, and formulated through the operation of that elaborate machinery. It provided a natural classification of the law, saving it from absolute chaos, so that students learned their principles as they went along, by mastering their procedure. Declarations, pleas, and demurrers have now become matters of antiquarian interest, as far as actual practice is concerned. But, until the whole system of English law shall be recast and codified, the old learning respecting them will be indispensable to all who wish to be sound common lawyers. Without it a great deal of quite recent authority will remain obscure, and the old books in great measure unintelligible. Even in so simple a matter as an action of contract, it is necessary to know the peculiar and not unromantic history of the action of assumpsit. In an action for injuries against a carrier we must still be familiar with the distinction between the breach of a duty to carry safely and a breach of a contract to carry, though we are no longer put to a choice between the one and the other form of action. And so long as written pleadings remain, the best masters of the art will be they who can inform the apparent license of the new system with that spirit of exactness and self-restraint which flows from a knowledge of the old.”

Rules of court instead of direct legislation

Their general purpose and main results considered, the English and the American system of pleading are in remarkable accord, as will presently appear;1 but they have one very salient point of divergence in the way in which they were framed. In the American codes almost all the principles and rules of judicial procedure were framed for but not by the judicial power. They were the direct work of the legislature. They exist in the forms of inexorable law. In the English system, on the other hand, almost all these principles and rules are framed for and by the judicial power, but under a delegated authority from the legislature. Excepting a few general provisions, the principles and rules of procedure in the English code exist not directly as statutes, but as rules of court. In other words, the courts themselves were permitted and required to build the complicated machinery which they must operate, and they may modify it as their experience suggests, without resorting to direct legislation. Parliament, however, was careful to retain a veto power upon proposed changes in procedure. By the terms of the act of 1873,2 all rules of court made in pursuance of the statute were to be laid before each house of Parliament within forty days next after the same were made, if Parliament was then sitting, or, if not, within forty days after the then next meeting of Parliament, and thereupon Parliament, by means of an address presented to the Crown within forty days, might cause any of these rules to become void and of no effect, “but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same.”

Scope of the rules of court in the English code

The principle that the rules of judicial procedure may be framed in the first instance by judges of the superior courts is, of course, no novelty in either American or English law. It is hardly less familiar to the profession than rational. Every code state has its rules of court. Still better known are the equity rules of the federal system, framed by the Supreme Court of the United States under authority of the act of 1792—a partial code of procedure which has been before the country since 1822.1 Nor is it a strange doctrine with us that courts may, on their own motion and without direct resort to the legislature, repeal, amend, or add to the established rules of judicial procedure as experience or changing conditions require from time to time.2 The difference between the English code and our own in this respect is therefore in degree rather than in kind.

How far the rules of court extend in the English code may be illustrated from the judicature acts of 1873 and 1875. Under the terms of the act,3 rules of court might be made, at any time after the passage and before the commencement of the act, by order in council on the recommendation of certain judges for any of the following topics:

(1) For regulating the sittings of the High Court of Justice and the Court of Appeal, and of any Divisional or other court thereof respectively, and of the judges of the said High Court sitting in chambers; and,

(2) For regulating the pleading, practice, and procedure in the High Court of Justice and Court of Appeal; and,

(3) Generally for regulating any matters relating to the practice and procedure of the said courts respectively, or to the duties of the officers thereof, or of the Supreme Court, or the costs of proceedings therein.

From and after the commencement of the act, the Supreme Court was authorized “at any time, with the concurrence of the majority of the judges thereof present at any meeting for that purpose held (of which the Lord Chancellor shall be one) to alter and annul any rules of court for the time being in force, and to have and exercise” the power of making new rules on the subjects specified.

The statute proper1 numbers but one hundred sections, and the great majority of these relate to the constitution of the consolidated court, its jurisdiction, the powers of its different judges, its officers and offices. Rules of pleading are scarcely touched upon. But the statute as amended in 1875, when it went into effect, is followed by a schedule of “rules of court,” numbering sixty-three “orders” with an aggregate of four hundred and fifty-three sections, and dealing with the familiar topics of pleading which appear in the direct enactment of our codes.

It may be added that the power of the judges to alter, annul, or add to these rules has been somewhat freely exercised, notably in 1883, when a new code superseded the rules of 1873 and 1875. In 1893 there was another revision affecting a considerable number of the rules. They are sometimes referred to as the new rules of 1893.

The advantage of rules of court

There is, of course, much to commend this manner of framing the English code. A hurried legislative committee is hardly the body to define the rules of judicial procedure; it is naturally a task for the judges.

But, apart from this, the English codifiers appear to have had two other things in mind—(1) the certainty that use would presently reveal in the new pleadings errors and defects which should have a readier cure than direct legislation could afford; and, (2) the danger that however fully the rules of a statutory procedure might be in touch with the current needs of the day, the system would fossilize (as common law pleading has fossilized, as some of our codes tend to fossilize) unless the courts themselves were authorized and empowered to adapt their procedure readily to new conditions. The English code gives better heed than our own code to Lord Coke’s aphorism, Nihil simul inventum est et perfectum;2 and it is more nearly in line with the wise suggestion made by Austin about 1832. “No code,” said he, “can be perfect; there should, therefore, be a perpetual provision for its amendment on suggestions from the judges who are engaged in applying it, and who are in the best of all situations for observing its defects. By this means the growth of judiciary law, explanatory of and supplementary to the code can not indeed be prevented altogether, but it may be kept within a moderate bulk by being wrought into the code itself from time to time.”1

But, while American lawyers commend the plan which has been adopted for framing the English code, it is well to bear in mind that a similar plan, if adopted by the New York reformers in 1848, would probably have stopped short of any radical change. The rules of Hilary Term or some equally faltering reform would have been the main result. The legal mind was then, far more than now, timid of changes in the law, fearful of plunging into chaos if it left the trodden path. Crude as the reform of 1848 was in many respects, it was yet bold and stimulating. It enabled even lawyers to contemplate a radical departure from an established system of law as not necessarily fatal. It has been largely instrumental in bringing on the more radical, even if more cautious reforms of the English code, whose later development can now offer in return many valuable suggestions.

It does not follow, however, that the special feature which is under consideration—the use of rules of court instead of direct legislation for declaring and amending the principles of procedure—is entirely suited, in its length and breadth, to our conditions. The arrangement does indeed give the procedure much more elasticity than is possible when direct legislation must be invoked for every alteration which the experience of practitioners shows to be desirable. But so great a power of change may prove not an unmixed blessing. Its success presupposes not only a high degree of learning and prudence in the judiciary, but stability in the office of judge. A procedure which might change with the fancy of five-year judges would bring a host of evils in its train. Ever fruitful of contention and delay, a changeable procedure is a grievous burden to the community, which must pay the price of interpreting all new regulations of procedure, whether by rules of court or direct enactments.1 The safer principle is that alterations in the law should be made only when shown to be necessary; and other things being equal, that is the better system which tends to prevent unnecessary change.

The suggestive resemblance between English and American code pleading

The timid conservatism which marked the earlier history of the reform in England, and for years kept it in the rear of the similar movement on this side of the Atlantic, had evidently passed when the judicature acts and rules appeared. A new influence was abroad. The judicial spirit itself suffered a change. Technicality after technicality was brushed away with a rapidity which only those recognized who watched the process closely. Rules which a few years before had been deemed of essential importance were swept aside as worse than useless subtleties. The tide of ridicule turned back upon the common law itself. It was a Lord Chief Justice of England who suggested, in 1883, the formation of a museum of common law procedure. As the Yellowstone Park was intended to preserve “the strange and eccentric forms which natural objects sometimes assume,” he would have a kind of pleading park, in which the glories of the negative pregnant, absque hoc, replication de injuria, rebutter, and surrebutter, and all the other weird and fanciful creations of the pleader’s brain might be preserved for future ages, to gratify the respectful curiosity of our descendants, and “where our good old English judges, if ever they revisit the glimpses of the moon, may have some place in which their weary souls can still find the form preferred to the substance, the statement to the thing stated.”1

The common purpose of both systems

Quite as many of the old landmarks in pleading have been swept away by this recent English legislation as by the American codes. In many instances, indeed, the comprehensive provisions of the judicature acts and rules carry the change not only as far as the codes of civil procedure have gone, but considerably beyond the point at which American legislatures have deeemed it prudent to stop. The framers of the English system appear to have thought that the most direct course to the end which both systems have in view—a complete and final determination of a controversy in its entirety, and according to its essential facts—was to put the least possible restraint upon the discretion of the court in dealing with a case; on the other hand, our codes have kept closer to the common law theory that judges should be required to exercise no more discretion than is absolutely necessary. Where the provisions of the American system are imperative, the corresponding rules in the English system are often subordinated to the discretion of its judges, who may make such modification as is just, with a view to the convenient “determination of the real matter in dispute.” But the underlying principle of both systems is the same. They are in more than substantial agreement as to what they overturn and as to what they establish. One purpose runs through the changes in both—to establish a simple and uniform procedure in all civil causes, to open one broad and straight highway into a complete court of justice for every violated civil right. In each system the theory of the pleading has the same fundamental purpose, that of enabling the court to render substantial justice in one proceeding as to the whole controversy. The rules of practice, which point out the particular steps to be taken in the disposition of a case, do indeed differ under the two systems in many respects, but the rules of pleading under the judicature acts and rules are in remarkable accord with those of the American codes.1

Other codes in the British Empire.—General character of the English reform movement in the provinces

The movement which brought on the codes of civil procedure in the United States and the judicature acts in England was not confined to these countries. Wherever English law prevailed, the need of a more simple and direct relation between the substantive law and the law of procedure came to be regarded as an urgent and practical matter. Once fairly started by definite enactments in America and England, the reform spread so rapidly through the wide limits of the British Empire that “code pleading,” despite the radical nature of its changes and the ultra conservatism of practitioners, made the circuit of the earth in less than fifty years. The statutory changes in the British colonies commonly followed those of the mother country, both in time and in their general character; but in some instances they ran ahead of the actual legislation for England.

Indian code of civil procedure

This was especially true of British India, so long the great experimental field of English codification.2 As early as 1854 a body of commissioners in England, appointed under a statute of the previous year,3 addressed themselves to the task of preparing a simple and uniform code of pleading and practice for India. The result of their labors was an elaborate act, passed in 1859, and known as a “Code of Civil Procedure.” Greatly amended and revised, it now contains many provisions copied from the judicature acts; but it still keeps its name, code of civil procedure. Some of its provisions appear to come at first hand from the New York code; the differences, however, are many and suggestive.

Influence of the English judicature acts and rules

1 At a later day, the influence of the judicature acts and rules brought on similar legislation in widely separated commonwealths of the British Empire—in Ireland, in North America, in Australia, and elsewhere.2 The general result has been the rise within the British Empire, and for the most part since the year 1880, of an influential group of codes, similar in spirit, and often in the letter, to the great family of codes within the United States.

Value of the British codes to American code pleaders and the cause of reform

Further than this it seems unnecessary to go. Our interest in the codes of the British Empire is indirect—for purposes of illustration; and the examples already given will suffice.

But it may be said again, and in conclusion, that although indirect, the American practitioner’s interest in these codes is very considerable. They are later efforts towards the same end which is sought by code pleading in the American Union. They occupy a very wide field; they meet many diverse conditions. They have been framed in the light of our own experience, and themselves throw no little light upon the essentials of code pleading, and upon the path of development which the codes of the United States will naturally follow. For it is still true that the purpose declared in our earliest code, the code of 1848—“to simplify and abridge the practice, pleadings, and proceedings of the courts”—has been realized as yet in part only. Nor has the movement which brought on the code of 1848 and its successors in this country come to a perpetual end.

Our seven and twenty codes, even at the end of a half century, are a beginning, essentially bold and progressive, yet only a beginning, and as such often crude and imperfect. Certainly a final code was not to be expected as the direct result of this first movement in 1848 and its succeeding years.1 Sooner or later the movement to simplify our procedure will begin again. Already there are signs of the discontent which precedes organized efforts for reform. And it is possible, at least, that the present generation may see considerable progress towards the greater American code, which, while preserving the essentials of the existing system, will be at once more simple, elastic, and durable.

40.

A GENERAL SURVEY OF THE HISTORY OF THE RULES OF EVIDENCE1

By John Henry Wigmore2

THE details of the history of the rules of evidence can best be examined while considering the particular rules each in its place. But it is worth while to notice here summarily the historical development of the general system in its main features, and the relative chronology of the different rules. Some notion can thus be obtained of the influence of certain external circumstances on the rules at large and of some of the individual principles upon the others.3

The marked divisions of chronology, for our law of evidence, may be said to be seven,—from primitive times to 1200 ad, thence to 1500, thence to 1700, to 1790, to 1830, to 1860, and to the present time:

(1) ad 700-1200. Up to the period of the 1200s, the history of the rules of evidence, in the modern sense, is like the chapter upon ophidians in Erin; for there were none. Under the primitive practices of trial by ordeal, by battle, and by compurgation, the proof is accomplished by a judicium Dei, and there is no room for our modern notion of persuasion of the tribunal by the credibility of the witnesses;1 for the tribunal merely verified the observance of the due formalities, and did not conceive of these as directly addressed to their own reasoning powers. Nevertheless, a few marks, indelibly made by these earlier usages, were left for a long time afterwards in our law. The summoning of attesting witnesses to prove a document, the quantitative effect of an oath, the conclusiveness of a seal in fixing the terms of a documentary transaction, the necessary production of the original of a document,—these rules all trace a continuous existence back to this earliest time, although they later took on different forms and survived for reasons not at all connected with their primitive theories.

(2) ad 1200-1500. With the full advent of the jury, in the 1200s, the general surroundings of the modern system are prepared; for now the tribunal is to determine out of its own conscious persuasion of the facts, and not merely by supervising external tests. The change is of course gradual; and trial by jury is as yet only one of several competing methods; but at least a system for the process of persuasion becomes possible. In this period, no new specific rules seem to have sprung up. The practice for attesting witnesses, oaths, and documentary originals is developed. The rule for the conclusiveness of a sealed writing is definitely established. But during these three centuries the general process of pleading and procedure is only gradually differentiated from that of proof,—chiefly because the jurors are as yet relied upon to furnish in themselves both knowledge and decision; for they are not commonly caused to be informed by witnesses, in the modern sense.

(3) ad 1500-1700. By the 1500s, the constant employment of witnesses, as the jury’s chief source of information, brings about a radical change. Here enter, very directly, the possibilities of our modern system. With all the emphasis gradually cast upon the witnesses, their words and their documents, the whole question of admissibility arises. One first great consequence is the struggle between the numerical or quantitative system, which characterized the canon law and still dominated all other methods of proof, and the unfettered systemless jury trial; and it was not for two centuries that the numerical system was finally repulsed. Another cardinal question now necessarily faced was that of the competency of witnesses; and by the end of the 1500s the foundations were laid for all the rules of disqualification which prevailed thenceforward for more than two centuries, and in part still remain. At the same time, and chiefly from a simple failure to differentiate, most of the rules of privilege and privileged communication were thereby brought into existence, at least in embryo. The rule for attorneys, which alone stood upon its own ground, also belongs here, though its reasons were newly conceived after the lapse of a century. A third great principle, the right to have compulsory attendance of witnesses, marks the very beginning of this period. Under the primitive notions, this all rested upon the voluntary action of one’s partisans; the calling of compurgators and documentary attestors, under the older methods of trial, was in effect a matter of contract. But as soon as the chief reliance came to be the witnesses to the jurors, and the latter ceased to act on their own knowledge, the necessity for the provision of such information, compulsorily if not otherwise, became immediately obvious. The idea progressed slowly; it was enforced first for the Crown, next for civil parties; and not until the next period was it conceded to accused persons. Thus was laid down indirectly the general principle that there is no privilege to refuse to be a witness; to which the other rules, above mentioned, subsequently became contrasted as exceptions. A fourth important principle, wholly independent in origin, here also arose and became fixed by the end of this period,—the privilege against self-crimination. The creature, under another form, of the canon law, in which it had a long history of its own, it was transferred, under stress of political turmoil, into the common law, and thus, by a singular contrast, came to be a most distinctive feature of our trial system. About the same period—the end of the 1600s—an equally distinctive feature, the rule against using an accused’s character, became settled. Finally, the “parol evidence” rule enlarged its scope, and came to include all writings and not merely sealed documents; this development, and the enactment of the statute of frauds and perjuries, represent a special phase of thought in the end of this period. It ends, however, rather with the Restoration of 1660 than with the Revolution of 1688, or the last years of the century; for the notable feature of it is that the regenerating results of the struggle against the arbitrary methods of James I and Charles I began to be felt as early as the return of Charles II. The mark of the new period is seen at the Restoration. Justice, on all hands, then begins to mend. Crudities which Matthew Hale permitted, under the Commonwealth, Scroggs refused, under James II. The privilege against self-crimination, the rule for two witnesses in treason, and the character rule—three landmarks of our law of evidence—find their first full recognition in the last days of the Stuarts.

(4) ad 1700-1790. Two circumstances now contributed independently to a further development of the law on two opposite sides, its philosophy and its practical efficiency. On the one hand, the final establishment of the right of cross-examination by counsel, at the beginning of the 1700s, gave to our law of evidence the distinction of possessing the most efficacious expedient ever invented for the extraction of truth (although, to be sure, like torture,—that great instrument of the continental system,—it is almost equally powerful for the creation of false impressions). A notable consequence was that by the multiplication of oral interrogation at trials the rules of evidence were now developed in detail upon such topics as naturally came into new prominence. All through the 1700s this expansion proceeded, though slowly. On the other hand, the already existing material began now to be treated in doctrinal form. The first treatise on the law of evidence was that of Chief Baron Gilbert, not published till after his death in 1726. About the same time the abridgments of Bacon and of Comyns gave many pages to the title of Evidence;1 but no other treatise appeared for a quarter of a century, when the notes of Mr. J. Bathurst (later Lord Chancellor) were printed, under the significant title of the “Theory of Evidence.” But this propounding of a system was as yet chiefly the natural culmination of the prior century’s work, and was independent of the expansion of practice now going on. In Gilbert’s book, for example, even in the fifth edition of 1788, there are in all, out of the three hundred pages, less than five concerned with the new topics brought up by the practice of cross-examination; in Bathurst’s treatise (by this time embodied in his nephew Buller’s “Trials at Nisi Prius”) the number is hardly more; Blackstone’s Commentaries, in 1768, otherwise so full, are here equally barren. The most notable result of these disquisitions, on the theoretical side, was the establishment of the “best evidence” doctrine, which dominated the law for nearly a century later. But this very doctrine tended to preserve a general consciousness of the supposed simplicity and narrowness of compass of the law of evidence. As late as the very end of the century Mr. Burke could argue down the rules of evidence, when attempted to be enforced upon the House of Lords at Warren Hastings’ trial, and ridicule them as petty and inconsiderable.1 But, none the less, the practice had materially expanded during his lifetime. In this period, besides the rules for impeachment and corroboration of witnesses (which were due chiefly to the development of cross-examination), are to be reckoned also the origins of the rules for confessions, for leading questions, and for the order of testimony. The various principles affecting documents—such as the authorization of certified (or office) copies and the conditions dispensing from the production of originals—now also received their general and final shape.

(5) ad 1790-1830. The full spring-tide of the system had now arrived. In the ensuing generation the established principles began to be developed into rules and precedents of minutiæ relatively innumerable to what had gone before. In the Nisi Prius reports of Peake, Espinasse, and Campbell, centring around the quarter-century from 1790 to 1815, there are probably more rulings upon evidence than in all the prior reports of two centuries. In this development the dominant influence is plain; it was the increase of printed reports of Nisi Prius rulings.1 This was at first the cause, and afterwards the self-multiplying effect, of the detailed development of the rules. Hitherto, upon countless details, the practice had varied greatly on the different circuits; moreover, it had rested largely in the memory of the experienced leaders of the trial bar and in the momentary discretion of the judges. In both respects it therefore lacked fixity, and was not amenable to tangible authority. These qualities it now rapidly gained. As soon as Nisi Prius reports multiplied and became available to all, the circuits must be reconciled, the rulings once made and recorded must be followed, and these precedents must be open to the entire profession to be invoked. There was, so to speak, a sudden precipitation of all that had hitherto been suspended in solution. This effect began immediately to be assisted and emphasized by the appearance of new treatises, summing up the recent acquisitions of precedent and practice. In nearly the same year, Peake, for England (1801), and MacNally, for Ireland (1802), printed small volumes whose contents, as compared with those of Gilbert and Buller, seem to represent almost a different system, so novel were their topics. In 1806 Evans’ Notes to Pothier on Obligations was made the vehicle of the first reasoned analysis of the rules. In this respect it was epoch-making; and its author in a later time once quietly complained that its pages were “more often quoted than acknowledged.” The room for new treatises was rapidly enlarging. Peake and MacNally, as handbooks of practice, were out of date within a few years, and no new editions could cure them. In 1814, and then in 1824, came Phillipps and Starkie,—in method combining Evans’ philosophy with Peake’s strict reflection of the details of practice. There was now indeed a system of evidence, consciously and fully realized. Across the water a similar stage had been reached. By a natural interval Peake’s treatise was balanced, in 1810, by Swift’s Connecticut book, while Phillipps and Starkie (after a period of sufficiency under American annotations) were replaced by Greenleaf’s treatise of 1842.

(6) ad 1830-1860. Meantime, the advance of consequences was proceeding, by action and reaction. The treatises of Peake and Phillipps, by embodying in print the system as it existed, at the same time exposed it to the light of criticism. It contained, naturally enough, much that was merely inherited and traditional, much that was outgrown and outworn. The very efforts to supply explicit reasons for all this made it the easier to puncture the insufficient reasons and to impale the inconsistent ones. This became the office of Bentham. Beginning with the first publication, in French, of his Theory of Judicial Evidence, in 1818, the influence of his thought upon the law of evidence gradually became supreme. While time has only ultimately vindicated and accepted most of his ideas (then but chimeras) for other practical reforms, and though some still remain untried, the results of his proposals in this department began almost immediately to be achieved. Mature experience constantly inclines us to believe that the best results on human action are seldom accomplished by sarcasm and invective; for the old fable of the genial sun and the raging wind repeats itself. But Bentham’s case must always stand out as a proof that sometimes the contrary is true,—if conditions are meet. No one can say how long our law might have waited for regeneration, if Bentham’s diatribes had not lashed the community into a sense of its shortcomings. It is true that he was particularly favored by circumstances in two material respects,—the one personal, the other broadly social. He gained, among others, two incomparable disciples, who served as a fulcrum from which his lever could operate directly upon legislation. Henry Brougham and Thomas Denman combined with singular felicity the qualities of leadership in the technical arts of their profession and of energy for the abstract principles of progress. Holding the highest offices of justice, and working through a succession of decades, they were enabled, within a generation, to bring Bentham’s ideas directly into influence upon the law. One who reads the great speech of Brougham, on February 7, 1828, on the state of the common law courts, and the reports of Denman and his colleagues, in 1852 and 1853, on the common law procedure, is perusing epoch-making deliverances of the century.1 The other circumstance that favored Bentham’s causes was the radical readiness of the times. The French Revolution had acted in England; and as soon as the Napoleonic wars were over, the influence began to be felt. One part of public opinion was convinced that there must be a radical change; the other and dominant part felt assured that if the change did not come as reform, it would come as revolution; and so the reform was given, to prevent the revolution. In a sense, it did not much matter to them where the reform came about,—in the economic, or the political, or the juridical field,—if only there was reform. At this stage, Bentham’s denouncing voice concentrated attention on the subject of public justice,—criminal law and civil procedure; and so it was here that the movement was felt among the first. As a matter of chronological order, the first considerable achievements were in the field of criminal law, beginning in 1820, under Romilly and Mackintosh; then came the political upheaval of the Reform Bill, in 1832, under Russell and Grey; next the economic regeneration, beginning with Huskisson and culminating with Peel in the Corn Law Repeal of 1846. Not until the Common Law Procedure Acts of 1852 and 1854 were large and final results achieved for the Benthamic ideas in procedure and evidence. But over the whole preceding twenty years had been spread initial and instructive reforms. Brougham’s speech of February 7, 1828, was the real signal for the beginning of this epoch,—a beginning which would doubtless have culminated more rapidly if urgent economic and political crises had not intervened to absorb the legislative energy.

In the United States, the counterpart of this period came only a little later. It seems to have begun all along the line, and was doubtless inspired by the accounts of progress made and making in England, as well as by the writings of Edward Livingston, the American Bentham, and by the legislative efforts of David Dudley Field, in the realm of civil procedure. The period from 1840 to 1870 saw the enactment, in the various jurisdictions in this country, of most of the reformatory legislation which had been carried or proposed in England.

(7) ad 1860. After the Judicature Act of 1875, and the Rules of Court (of 1883) which under its authority were formulated, the law of evidence in England attained rest. It is still overpatched and disfigured with multiplicitous fragmentary statutes, especially for documentary evidence. But it seems to be harmonious with the present demands of justice, and above all to be so certain and settled in its acceptance that no further detailed development is called for. It is a substratum of the law which comes to light only rarely in the judicial rulings upon practice.

Far otherwise in this country. The latest period in the development of the law of evidence is marked by a temporary degeneracy. Down to about 1870, the established principles, both of common law rules and of statutory reforms, were restated by our judiciary in a long series of opinions which, for careful and copious reasoning, and for the common sense of experience, were superior (on the whole) to the judgments uttered in the native home of our law. Partly because of the lack of treatises and even of reports,—partly because of the tendency to question imported rules and therefore to defend on grounds of principle and policy whatever could be defended,—partly because of the moral obligation of the judiciary, in new communities, to vindicate by intellectual effort its right to supremacy over the bar,—and partly also because of the advent, coincidently, of the same rationalizing spirit which led to the reformatory legislation,—this very necessity of re-statement led to the elaboration of a finely reasoned system. The “mint, anise, and cummin” of mere precedent1 were not unduly revered. There was always a reason given,—even though it might not always be a worthy reason. The pronouncement of Bentham came near to be exemplified, that “so far as evidence is concerned, the English practice needs no improvement but from its own stores. Consistency, consistency, is the one thing needful. Preserve consistency, and perfection is accomplished.”2

But the newest States in time came to be added. New reports spawned a multifarious mass of new rulings in fifty jurisdictions,—each having theoretically an equal claim to consideration. The liberal spirit of choosing and testing the better rule degenerated into a spirit of empiric eclecticism in which all things could be questioned and re-questioned ad infinitum. The partisan spirit of the bar, contesting desperately on each trifle, and the unjust doctrine of new trials, tempting counsel to push up to the appellate courts upon every ruling of evidence, increased this tendency. Added to this was the supposed necessity in the newer jurisdictions of deciding over again all the details that had been long settled in the older ones. Here the lack of local traditions at the bar and of self-confidence on the bench led to the tedious re-exposition of countless elementary rules. This lack of peremptoriness on the supreme bench, and (no less important) the marked separation of personality between courts of trial and courts of final decision, led also to the multifarious heaping up, within each jurisdiction, of rulings upon rulings involving identical points of decision. This last phenomenon may be due to many subtly conspiring causes. But at any rate the fact is that in numerous instances, and in almost every jurisdiction, recorded decisions of Supreme Courts upon precisely the same rule and the same application of it can be reckoned by the dozens and scores. This wholly abnormal state of things—in clear contrast to that of the modern English epoch—is the marked feature of the present period of development in our own country.

Of the change that is next to come, and of the period of its arrival, there seem as yet to be no certain signs. Probably it will come either in the direction of the present English practice—by slow formation of professional habits—or in the direction of attempted legislative relief from the mass of bewildering judicial rulings—by a concise code. The former alone might suffice. But the latter will be a false and futile step, unless it is founded upon the former; and in any event the danger is that it will be premature. A code fixes error as well as truth. No code can be worth casting, until there has been more explicit discussion of the reasons for the rules and more study of them from the point of view of synthesis and classification. The time must first come when, in the common understanding and acceptance of the profession, “every rule is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.”1

[1 ]This essay forms chapter I of “A Preliminary Treatise on Evidence, 1898, pp. 7-46 (Boston, Little, Brown, & Co.).

[2 ]1831-1902. Harvard University, A. B. 1852, LL. B. 1856, LL. D. 1894; Iowa University, LL. D. 1891; admitted to the Boston (Suffolk Co.) Bar in 1856; master in chancery 1864-1873; Royall professor of law in Harvard University, 1873-1893, Weld professor of law in the same, 1893-1902.

Other Publications: Cases on Evidence, 1892; Origin and Scope of the American Doctrine of Constitutional Law, 1893; The Teaching of English Law in Universities, 1895; Cases on Constitutional Law, 1895.

[1 ]Maine, Early Law and Custom, c. 6; Pop. Gov., pp. 89-92; Essays in Anglo-Saxon Law, 2-3.

[1 ]So often in our older records. This rigor survives now chiefly in the fading rules of criminal pleading. It is interesting in the great Statute of Wales, 12 Edw. I. (1284), to see the contact of our old law with the customs of a region still less advanced. In certain pleas (s. 8), the demand is to be set forth in words stating the fact, without any exception for mistake in words, non observata illa dura consuetudine, Qui cadit a syllaba, cadit a tota causa.

Of course it is to be remembered that in this husk of formalism lay, often, the safeguard of men’s rights. “We may say with the great Romanist of our own day, that formalism is the twin-born sister of liberty.” 2 P. & M., Hist. Eng. Law, 561.

[2 ]Brunner, Die Entstehung der Schwurgerichte, 174; Von Bar. Beweisurtheil, passim. As regards the German books I am greatly indebted to my friend and cousin, Gamaliel Bradford, of Boston. With lavish generosity he read to me the whole of the two books just cited and several others.

[1 ]The reasons which still make it so difficult to refer international controversies to the rational mode of trial may help us to understand our older law.

[2 ]See Brunner, Schw. 428 et seq.; P. & M., Hist. Eng. Law, ii. 603 et seq.

[3 ]Brunner, Schw. 170 et seq., 175. Lea, Sup. and Force, 4th ed. 95-6.

[4 ]As to this term lex, see Thayer, Preliminary Treatise on Evidence, 199, 201.

[5 ]Brunner’s explanation of this passage is found in Schwurg., 199-200. “If a lord appears with a complaint-witness against his vassal, in his own court, the vassal must answer, although no witnesses are brought. . . . Sometimes this privilege was limited so that the lord had it but once a year. The privilege of the fisc [or, as we should say, the crown] in this respect was unlimited. If a royal officer appears as plaintiff in a complaint belonging to his chief, he need not produce any witness . . . Even if such a complaint only called for the oath of purgation from the defendant, yet for this there was need, not merely of a clear conscience, but compurgators, and the painful formalism of the oath might only too easily bring the swearer to grief. Article 38 in Magna Carta may have owed its origin to such considerations when it provided, ‘Nullus ballivus,’ ” etc. See also Brunner in Zeitschrift der Savigny-Stiftung (Germ. Abt.), ii. 214. Compare Glanv. ix., 1, and ib. Beames’s trans. 222 n. 1. Compare also Bracton, 410 (say ad 1258). Ad simplicem rocem querentis non habent judices necesse, nec pars de qua queritur, defendere se per legem. And Bract. N. B. ii. case 260 (1227): Et quia . . . predictus Rogerus nichil ostendit . . . nec sectam producit, nec cartam profert, nec aliquid aliud nisi simplicem vocem suam, &c. See also ib. case 425, and ib. iii. case 1565.

The meaning of this article of Magna Carta seems to have been the subject of dispute very early. In Y. B. 32 & 33 Edw. I. 516 (1304), after quoting the principal words and setting forth two interpretations, it is added: Alius intellectus et melior, quod defendens in brevi de debito et in aliis brevibus consimilibus non ad legem ponatur nisi querens arramaverit sectam versus eum, &c. The handwriting of the MSS. of this passage is said to be of the time of Edw. II. (1307-1327). Compare Coke (2 Inst. 44), citing the “Mirror.”

Holt, C. J., in City of London v. Wood, 12 Mod. 669, 678, 679 (1700-1), ventured upon some dubious explanations of this article, in the course of which he truly said: “The witnesses mentioned by the statute are not to be produced after issue joined, or to be cross-examined, but only to give proof of a probable cause of action, that is, such proof as we now require of a modus decimandi, when we grant a prohibition to stay a suit for tithes in specie.” Compare Webb v. Petts, Noy, 44, where in a question on a modus, “it was agreed that a proof (by hearsay) was good enough to maintain the surmise within the statute 2 Edw. 6.” [c. 13, s. 14.]

[1 ]See Thayer’s Cas. Evid. 726.

[1 ]Pleading (Tyler’s ed., from the 2d Lond. ed. of 1827), 370-2.

[2 ]Palgrave has a lively thirteenth century illustration of this in his fiction founded on fact, “The Merchant and the Friar,” 173; see also Palg. Eng. Com., ii. p. clxxxvii, pl. 21 (1221); s. c. Maitland, Pl. Crown for Gloucester, 92, pl. 394; ib. 45, pl. 174, and notes pp. 145, 150; Pike’s Hist. Crime, i. 52. It is an entire misapprehension to suppose, as Stephen does, Hist. Cr. Law, i. 259, that this is a trial. The very point of the matter is that trial is refused. Compare Ass. Clarend., s. 12 (1166), Ass. North., s. 3 (1176), 3 Br. N. B., case 1474 (1221), Stat. Wall. s. 14 (1284). This principle also covered cases that were not so plain; as in 1222 (Br. N. B. ii., case 194), in an action for detaining the plaintiff’s horse which he had sent by his man to Stamford market for sale, it is charged that the defendant had thrown the man from the horse in the market, imprisoned him five days, kept the horse so that afterwards he was seen in the Earl of Warenne’s harrow at Stamford, etc., et inde producit sectam (giving ten or eleven names). The defendant defends the taking and imprisonment and all, word for word, etc. “But because all the aforesaid witnesses testify that they saw the horse in the seisin of Richard and in the harrow of the Earl, and this was done at Stamford market,” the defendant had his day for judgment. The author of the note-book has a memorandum on the margin at this case: Nota quod ea que manifesta sunt non indigent probacione.

[1 ]St. 15 & 16 Vic., c. 76, s. 55.

[2 ]Maitland, Pl. Cr. i., case 87.

[3 ]This was good old Germanic usage. Brunner, Schw. 201. Compare LL. H. I., xciv, 5 (Thorpe, i. 608).

[4 ]Bracton’s Note Book, iii., case 1693.

[5 ]Bracton’s Note Book, ii., case 325.

[6 ]As to the meaning of this phrase, see P. & M. Hist. Eng. Law, ii., 598, n. 4. De Gruchy, Anc. Cout. de Norm., 192, n. 6. The common meaning in England appears to have been that of the Statute of Wales (in 1284), cum undecim secum jurantibus,—in Coke’s phrase “an eleven and himself.” 2 Inst. 45. And in 1454-5 Needham, Serieant, says (Y. B. 33 H. VI. 8): “The tenant shall bring his law de duodecima manu, that is to say, eleven and himself.” Compare King v. Williams, 2 B. & C. 538 (1824); s. c. 4 D. & R. 3, Thaver, Preliminary Treatise on Evidence, p. 33; also Laws of Canute, c. 66, Lea, Sup. & Force (4th ed.), 48.

[1 ]Y. B. Ed. II. 507.

[2 ]Maitland, “Mirror,” p. xxiv.

[3 ]Ib. 162, 71. Compare P. & M. Hist. Eng. Law, ii., 213.

[4 ]Y. B. Ed. II. 242.

[5 ]Ib. 582.

[6 ]2 Rot. Cur. Reg. 102.

[7 ]Y. B. 17 Ed. III. 48, 14.

[1 ]Whether Shardelowe or Shareshull, both judges of the Common Bench at this time, I do not know. Selden seems to have misconceived this matter when he said (Note 8, Fortescue de Laud., c. xxi), after citing a case of trial by witnesses, in 1234 (Thayer, Preliminary Treatise on Evidence, 21), printed for the first time in Maitland’s invaluable “Bracton’s Note Book”: “The proofs of both sides are called secta. It was either this or some like case that Shard[elowe] entended in 17 Ed. III., fol. 48 b, in John Warrein’s case—speaking of a justice that examined the suit. And it appears [he adds truly] there, that under Ed. III., the tendering of suit or proofs was become only formal as at this day, like the plegii de prosequendo.”

[2 ]For certain other modes of “trial” see Stephen, Pl. (Tyler’s ed.), 114, 129, and 3 Blackstone, Com. 329.

I use the word “trial,” because it is the word in common use during recent centuries. But as applied to the old law this word is an anachronism. The old phrases were probatio, purgatio, defensio; seldom, if ever, in the earlier period, triatio. In those days people “tried” their own issues; and even after the jury came in, e. g. in the early part of the thirteenth century, one is sometimes said to clear himself (purgare se) by a jury; just as a man used to be said in our colonies to “clear himself” and “acquit himself” by his own oath, as against some accusations and testimony of an Indian. Plym Col. Rec. xi. 234, 235 (1673); 1 Prov. Laws Mass. 151 (1693-4). Triare, from the French trier, is, indeed, seen, although very seldom, in our early books, e. g. in Bracton, f. 105 (say 1259); Fleta, iv., c. 11, ss. 4 and 5 (say 1290); Britton, f. 12, and the “Mirror,” iii., c. 34 (both near the same date as Fleta); but Pollock and Maitland (Hist. Eng. Law, ii., 596, n. 2) point out a more probable MSS. reading in Bracton, of terminandae, instead of triandae, and suspect the text of Fleta. In Y. B. 30 & 31 Ed. I., 528 (1302), it is said of challenges to several jurymen triebantur per residuos de duodecim. In that century the word grew common. In 1353 (Rot. Parl., i., 248, 12) it is said that if there be a plea before the Mayor of the Staple et sur ceo pur trier ent la verite enqueste ou proeve soit a prendre, if both are foreigners, soit trie per estranges; if both are denizens, soit trie per denzeins, etc. In 1382 the St. R. II. st. 1, c. 6, provides that rei veritas . . . per inquisitionem trietur. Everybody knows how familiar the word has become in the last three centuries.

[1 ]Brunner, Schw. 54-59, 84 et seq., 195 et seq., Big. Pl. A. N. xx., Stat. Wall. § 14, Lyon, Hist. Dover., ii. 292, 294.

[2 ]As to dower, see Brunner, Schw. 342-344, 432-434; Pl. Ab. 21, col. 2 (1198).

[3 ]Si quis cum altero de qualibet causa contentionem habuerit, et testes contra eum per judicium producti fuerint, si ille falsos eos esse suspicatur, liceat ei alios testes, quos meliores potuerit, contra eos opponere, ut veracium testimonio falsorum testium perversitas superetur. Quod si ambæ partes testium ita inter se dissenserint, ut nulla tenus una pars alteri cedere velit, eligantur duo ex ipsis, id est, ex ultraque parte unus, qui cum scutis et fustibus in campo decertent utra pars falsitatem, utra veritatem suo testimonio sequatur. Et campioni qui victus fuerit, propter perjurium quod ante pugnam commisit, dextera manus amputetur. Cæteri vero ejusdem partis testes, quia falsi apparuerint, manus suas redimant; cujus compositionis duæ partes ei contra quem testati sunt dentur, tertia pro fredo solvatur.—(Capitulare Primum Ludovici Pii, ad 819. Baluze, Capitularia Regum Francorum, I. 601.) Compare Henry II. of England in 1186, when charters were produced on both sides: “Iste carte ejusdem antiquitatis sunt et ab eodem rege Aedwardo emanant. Nescio quid dicam: nisi ut carte ad invicem pugnent!” Big. Pl. A. N. 239, citing Chron. Joc. de Brakel. 37 (Camden Soc.).

[1 ]Mun. Gild. Lond. i. 62.

[2 ]But in 1 St. Realm, 222, it is put as “temp. incert.”

[3 ]Brunner, Schw. 189.

[4 ]Schw. 205.

[1 ]Bracton’s Note Book, ii., case 46; cited in Bracton, f. 424 b.

[2 ]See also ib. iii., case 1131 (ad 1234), and case 1362 (in 1220).

[3 ]Thayer, Preliminary Treatise on Evidence, 102, 103.

[4 ]Bellewe, 237.

[1 ]Keilwey, 176-7.

[2 ]pp. cxlix-cliii. Camden Soc. (1846).

[3 ]Pl. Ab. 293, col. 1.

[4 ]Baigent, Crondal Records, 431-436.

[1 ]Y. B. 21 H. VII. 40, 58. Brooke’s Ab. Trial, 60. In 1375-6 (Y. B. 50 Edw. III. 6, 12), Cavendish, Chief Justice of the King’s Bench, being asked to view a woman, and determine her age or nonage, declined, with the prompt remark: “There is not a man in England who can rightly adjudge her of age or under age. Some women who are thirty years old will seem eighteen.”

[2 ]Thayer, Preliminary Treatise on Evidence, 17.

[3 ]Bracton’s Note Book, iii., case 1115.

[1 ]For the theory of such cases see Brunner, Schw. 431. See also, Thaver, Preliminary Treatise on Evidence, p. 15, n. 7.

[2 ]Selden, Fortescue de Laud., c. 21, n. 8. For early cases, see Wm. Salt Soc. Coll. (Staffordshire), iii. 120-121 (1203), and Br. N. B. ii. case 356 (1229).

[1 ]Y. B. Edw. II. 24.

[2 ]Trial, 46.

[3 ]Dyer, 185 a, pl. 65, quotes this case as showing four witnesses for the woman and twelve for the tenant.

[4 ]Lib. Ass 273, 26; Brooke, Ab., Trial, 90, makes the phrase read cesty qui nient provera nient avera.

[5 ]Dyer, 185 a, (ed. 1601); s. c. Old Benloe, 86. Compare Rastall’s Entries (ed. 1579), Dower, Barre, 1, for another case in 1559.

[1 ]Compare Pl. Ab. 287, col. 1-2 (1292, 20 Edw. I.).

[2 ]Case of the Abbot of Strata Mercella, 9 Co. 30 b.

[3 ]Digest, Trial, (B). For a specimen of what might be called trial by witnesses, see St. 5 & 6 Edw. VI. c. 4, s. 3 (1552).

[4 ]Com. iii., c. 22.

[5 ]Pleading, Tyler’s ed. (from the 2d Eng. ed., 1827), 114, 131.

[6 ]Maine, Early Law and Custom, 144.

[7 ]Hessels & Kern col. 208, xxxvii; and see ib. Extravagantia, B, p. 421; Lea, Sup. and Force, 4th ed. 34, 42.

[1 ]Lea, Sup. and Force, 4th ed. Mr. Lea’s excellent book is full of instruction. Lewis, Anc. Laws of Wales, 30, 112.

[2 ]Palgrave, Eng. Com. i. 262-3. Glanv. viii, 9, Bigelow, Pl. A. N. xviii. For its extensive use in the manor courts, see Selden Soc. Publications, vols. ii. and iv. The highly formal character which it sometimes took on, and the perils which attended it, are illustrated in a passage from an unpublished treatise of the fourteenth century, preserved by Professor Maitland in ib. vol. iv. p. 17. All comes to naught if the principal withdraws his hand from the book while swearing, “or does not say the words in full as they are charged against him. . . . If a defendant fails to make his law he has to pay whatever the plaintiff has thought fit to demand.” We are told (Lea, Sup. and Force, 4th ed. 78) that in the city of Lille, down to the year 1351, the position of every finger was determined by law, and the slightest error lost the suit irrevocably.

[3 ]Black Book of the Admiralty, ii. 170-173.

[4 ]Pike, Hist. Crime, i. 130: “The mode of trial was to be what it had been before the Conquest, with the difference that compurgation was no longer permitted in those cases which were of sufficient importance to be brought before the justices in eyre.” See Stubbs, Select Charters (6th ed.) 142 Palg. Com. i. 259, Pike, Hist. Crime, i. 122, 123.

[1 ]Compare Palgrave, Merchant and Friar, 182-3. As to this “trial” in the ecclesiastical courts, see Pollock and Maitland. Hist. Eng. Law, i. 426. Compare Dr. Hooke’s case, Gardiner, Star Chamber and High Commission Cases (Camd. Soc.), 276.

[2 ]Com. ii., p. cxvi, note; compare ib. i. 217.

[3 ]Sometimes it was the rule that twelve of the thirty-six produced by the accused were set aside on the king’s behalf, and twelve by the town, and that only the remaining twelve swore with the accused. See the custumals of Winchelsea, Dover, Romney, Rye, and Sandwich in John Lyon’s History of Dover, ii. 265. I am indebted to my colleague Dr. Charles Gross for this reference.

[4 ]Norton’s London, 324, note. Palgrave, Merchant and Friar, 180.

[1 ]Of Henry II., Richard, John, Henry III., the three Edwards, and Richard II. For the charters, see Liber Albus, Mun. Gild. Lond. i. 128 et seq.

[2 ]Lib. Alb., Mun. Gild. Lond. i. 137-8; ib. Riley’s ed., 123, note.

[3 ]Liber Albus, Mun. Gild. Lond. i., 57-59, 92, 104, 203; Thayer, Preliminary Treatise on Evidence, 199.

[4 ]A good Anglo-Saxon method. Fleta, Lib. 2, c. 63, s. 12, gives the merchants’ way of proving a tally by his own oath in nine churches. He was to swear to the same thing in each, and then return to Guildhall for judgment. As to the tally, see Y. B. 20 & 21 Edw. I. 68, 304, 330, Y. B. Edw. II. 278, Black Bk. Adm. ii. 126.

[5 ]Maitl. Pl. Cr. i., case 61; s. c. Palg. Com. ii., p. cxix, note. And so elsewhere abundantly in the earliest records; e. g. in 1198-9, Rot. Cur. Reg. i. 200. And see Glanvill, Bk. 1, cc. 9 and 16 (1187), Braction, 410.

[6 ]St. 6 Rich. II. c. 5.

[1 ]See Pl. Ab. 291, col. 1 (1293-4).

[2 ]Steph. Pl. (Tyler’s ed.) 131-2.

[3 ]It was allowed sometimes where it seemed desirable to relieve a party against a burdensome or unfair claim; e. g. in 1363, against the claim of Londoners that another was indebted to them, when they had taken no tally or deed, and offered to prove it merely par lour papirs. So in 1403 (St. 5 H. IV. c. 8) it is protected against contrivances for depriving one’s adversary of it, and driving him to an inquest of unfriendly neighbors. Jenkins, Rep. ix, among “Abuses of the Law,” numbers “the taking away wager of law upon contracts.”

[4 ]Y. B. 19 H. VI. 10, 25.

[5 ]Y. B. 33 H. VI. 7, 23.

[1 ]For the established rule in such cases see 2 Rot. Cur. Reg. 125 (1198), Bracton, 334 b., 366, Y. B. 30 & 31 Edw. I. 189 (1302), Y. B. 15 Edw. III. 299 (1341).

[2 ]Cal. Proc. in Chanc. i. ccxx-cxxii; cited in Spence Eq. Jur. i. 696.

[3 ]Ubi supra.

[4 ]Goldsborough, 51, pl. 13; Doctor and Student, ii. c. 24, end.

[1 ]4 Rep., p. 95.

[2 ]Anon., 2 Salk. 682.

[3 ]“The defendant was set at the right corner of the bar, without the bar, and the secondary asked him if he was ready to wage his law. He answered yes; then he laid his hand upon the book, and then the plaintiff was called; and a question thereupon arose whether the plaintiff was demandable? And a diversity taken where he perfects his law instanter, and where a day is given in the same term, and when in another term. As to the last, they held he was demandable, whether the day given was in the same term or another. Then the court admonished him, and also his compurgators, which they regarded not so much as to desist from it; accordingly, the defendant was sworn, that he owed not the money modo et forma, as the plaintiff had declared, nor any penny thereof. Then his compurgators standing behind him, were called over, and each held up his right hand, and then laid their hands upon the book and swore, that they believed what the defendant swore was true.”

[4 ]London v. Wood, 12 Mod. 669, 684.

[1 ]London v. Wood, 12 Mod. 669.

[2 ]Ib. p. 669-70.

[3 ]Ib. p. 677.

[4 ]Ib. p. 679. Perhaps this came from Coke, who shows little knowledge of the history of the matter. In Inst. ii. 45 (printed about 1642, several years after Coke’s death), he says:—“The reason wherefore in an action of debt upon a simple contract, the defendant may wage his law is for that the defendant may satisfy the party in secret, or before witness, and all the witnesses may die; . . . and this for aught I could ever read is peculiar to the law of England.”

[1 ]Com. iii. 347-8. This clause had already been found in English statutes for three centuries and more; it appeared also on this side of the water, in our colonial acts, even in regions like Massachusetts, where it is said that wager of law was not practised. Dane’s Ab. i., c. 29, art. 8. In Childress v. Emory, 8 Wheat. 642, 675 (1823), Story, J., is of opinion that “the wager of law, if it ever had a legal existence in the United States, is now completely abolished.” “Trial by oath,” however, was not unknown here. See Thayer, Preliminary Treatise on Evidence, p. 16, n. 1. See also the effect of the defendant’s oath as neutralizing the plaintiff’s shop-books in Plym. Col. Laws, 196 (1682). By a statute of Massachusetts (St. 1783, c. 55) on a charge of usury a like purgation was given, at a time when a party to the suit could not be a witness. When, later, he was admitted, in such cases, to testify, we find Shaw, C. J., in Little v. Rogers, 1 Met. 108, 110 (1840), describing the situation as one where “the trial by jury has been substituted for the old trial by oath.” Compare Fry v. Barker, 2 Pick. 65. Lea, Sup. and Force, 4th ed. 87-88 quotes cases from the English colony of Bermuda in 1638 and 1639, where, at the assizes, persons “presented upon suspicion of incontinency,” are sentenced to punishment unless they purge themselves by oath.

[2 ]Barry v. Robinson, 1 B. & P. (N. R.), p. 297: “If a man,” argued counsel, “were now to tender his wager of law, the court would refuse to allow it.” . . . “This was denied by the court,” adds the reporter.

[3 ]King v. Williams, 2 B. & C. 538; s. c. 4 D. & R. 3.

[4 ]St. 3 & 4 Wm. IV. c. 42, s. 13.

[5 ]Com. i. 262-3.

[1 ]Patetta, Ordalie, c. 1. See Inst. of Narada, Jolly’s Trans. 44-54. This book is attributed to some period between the second and ninth centuries before Christ; “but the materials of our work,” says the translator (p. xx), “are of course much older, and many of the laws it contains belong to the remotest antiquity.” Beginning at Part I. c. 5, s. 102, and ending at Part II. (pp. 44-54), we have the doctrine of ordeals. After speaking of the situation where there are neither writings nor witnesses, and of the examination of the defendant, it is said that “If reasonable inference also leads to no result,” the defendant is to be put to the ordeal. “He whom the blazing fire burns not, whom the water soon forces not up, or who meets with no speedy misfortune must be held veracious in his testimony on oath. Let ordeals be administered if an offence has been committed in a solitary forest, at night, in the interior of a house, and in cases of violence and of denial of a deposit. . . . The balance, fire, water, poison, and sacred libation are said to be the five divine tests for the purgation of suspected persons.” Then follows an account of each of these ordeals. 1. After describing the scales and the first weighing of the accused, it is said: “And having adjured the balance by imprecations, the judge should cause the person accused to be placed in the balance again. ‘O balance, thou only knowest what mortals do not comprehend. This man being arraigned in a cause is weighed upon thee. Therefore mayest thou deliver him lawfully from his perplexity.’ . . . Should the individual increase in weight, he is not innocent; if he be equal in weight or lighter, his innocence is established.” 2. In the ordeal of fire seven circles with a diameter equal to the length of the man’s foot, and thirty-two inches distant from each other, are marked on the ground. The circles are smeared with cows’ dung, and the man, having fasted and made himself clean, has seven açvattha leaves laid on his hands and fastened there, and takes in his hands a smooth ball of red-hot iron, weighing fifty palas, and walks slowly through the seven circles. He then puts the ball on the ground. “If he is burnt, his guilt is proved; but if he remains wholly unburnt, he is undoubtedly innocent. . . . ‘Thou, O fire, dwellest in the interior of all creatures, like a witness. Thou only knowest what mortals do not comprehend. This man is arraigned in a cause and desires acquittal. Therefore mayest thou deliver him lawfully from his perplexity.’ ” 3. In the ordeal of water, the man wades out into the water up to his navel, and another shoots an arrow. The man dives or ducks into the water, and if he remains wholly under while a swift runner gets and fetches back the arrow he is innocent. The adjuration to the water is similar to the above, in the case of fire and the balance. 4. In the ordeal by poison elaborate directions are given about the choice of the poison and the time of year for administering it. The invocation runs: “Thou, O poison, art the son of Brahma, thou art persistent in truth and justice; relieve this man from sin, and by thy virtue become as ambrosia to him. On account of thy venomous and dangerous nature thou art the destruction of all living creatures; thou art destined to show the difference between right and wrong like a witness,” etc., etc., much as in the other cases above. “If the poison is digested easily, without violent symptoms, the king shall recognize him as innocent, and dismiss him, after having honored him with presents.” 5. In the ordeal by sacred libation, “the judge should give the accused water in which an image of that deity to whom he is devoted has been bathed, thrice calling out the charge with composure. One to whom any calamity or misfortune happens within a week or a fortnight is proved to be guilty.” Sir Henry Maine, writing in 1880 (Life and Speeches, 426), after saying that “perjury and corruption are still deplorably common in India,” adds: “Ordeals are perpetually resorted to in private life.”

[1 ]Book xiv., c. i. See also cases from Domesday Book and other eleventh century sources in Bigelow, Pl. A. N. passim.

[2 ]And so the Dialogus de Scaccario, ii. 7, written ten years earlier; Pollock and Maitland, Hist. Eng. Law, i. 154, n. 7.

[1 ]Rot. Cur. Reg. i. 204. See several cases of uncertain date in the reign of Rich. I. in Pl. Ab. 13-17.

[2 ]Sacros. Conc. xiii. ch. 18, pp. 954-5. Rymer’s Foedera (old ed.), 228, ib. (Rec. Com. ed.) 154, has one of these writs. Maitland quotes it in his Gloucester Pleas, p. xxxviii. How promptly it was obeyed by the ecclesiastics in the local courts is seen in a case of 1231 (2 Br. N. B. case 592), where on a writ of false judgment to the court of the Abbot of St. Edmunds in an appeal of felony for wounds it appeared that the case had been tried by jury, without the king’s warrant. The Abbot’s steward being asked quo warranto faciunt talem inquisitionem de vita et membris, said that since the war [1215-1217], this had been usual in the Abbot’s court. Before the war, it is added, they had the ordeal of fire and water.

Patetta, Ordalie, 312, doubts the accepted opinion that the disappearance of the ordeal in England was thus due to the Lateran Council decree. He remarks, truly, that the action of the Council merely forbade ecclesiastics to take part in the ordeal, and adds that there is mention of the ordeal in Henry the Third’s Magna Carta of 1224-5. Compare also Bigelow, Hist. Proc. 323-4. But one is inclined to doubt whether Dr. Patetta had in mind the king’s writs above referred to; those and the sudden cessation of the cases seem conclusive. As regards the mention of legem manifestam as late as the Magna Carta of 1224-5, it may, probably, be explained by the circumstance that this was a reissue of an earlier document; the mere legem of the former documents had already become legem manifestam nec adjuramentum, in the second reissue of 1217. This was not in the reissue of 1216. Its appearance in 1217 is not an unnatural or untimely expansion of the term legem. The new phrase was also used for the battle as well as the ordeal in its narrower sense—the sense now under consideration. See Brunner’s interesting comment on this passage of Magna Carta in Zeits. der Sav.-Stift. (Germ. Abt.) ii. 213. In 1291 legem manifestam is used in the sense of the duel. In an appeal of mayhem, the appellor made default. The appellee being then put on his defence to the king’s prosecution, set up the point that the only way of proving a mayhem was by having the party maimed inspected, and in the absence of this denied that any one poni debet ad legem manifestam. Pl. Ab. 285, col. 1. There occurs a reference to the ordeal in a record of 1221, but on examination it proves to be a statement that one Robert underwent the ordeal at a previous trial, which may well have been some years earlier. Maitland’s Gloucester Pleas, case 383, and p. xxii; and notes on this case at p. 150, and on case 434, at p. 151.

[1 ]Plac. Ab. 90, col. 2. One of these cases and another separate one are found in Maitland. Sel. Pl. Cr. i., case 116. In this volume there follow three others, 119, 122, and 125, “of uncertain date.”

[2 ]Eadmer, Hist. Nov. (Rolls Series), 102, Pollock and Maitland, Hist. Eng. Law, ii. 597, Brunner, Schw. 182. Compare the cool sense of Frederic II. in 1231, Lea, Sup. and Force, 4th ed. 422.

[1 ]Maitland, “Mirror,” 173 (Book 5, c. i. s. 127).

[2 ]Whitebread’s case, 7 How. St. Tr. 383; cited by Stephen, 1 Hist. C. Law, 253 n.

[3 ]Com. ii. 177.

[4 ]Sel. Charters, 6th ed. 142.

[5 ]Gardiner’s Star Ch. and High Com. Cases, 259.

[6 ]Pollock and Maitland, Hist. Eng. Law, i. 16.

[1 ]Lib. 10, c. 17.

[2 ]Lib. 13, c. 11.

[3 ]Lib. 9, c. 1.

[4 ]Lib. 8, c. 9. See generally St. de Magn. Ass. et Duellis, St. Realm, i. 218.

[5 ]Mun. Gild. Lond. i. 128, s. 5, and Thorpe, i. 502—quod nullus eorum faciat bellum. Pl. Ab. 26, col. 2, Lincoln; Pike, Hist. Crim. Law, i. 448; Patetta, Ordalie, 307, 308.

[6 ]Essays in Anglo-Saxon Law, 379; s. c. Bigelow, Pl. A. N. 19; Brunner, Schw. 197, 400-1.

[7 ]Lea, Sup. and Force, 4th ed. 120.

[8 ]Schw. 197-8; ib. 68, 401, citing Glanvill, lib. 10, c. 12; lib. 2, c. 21.

[9 ]Thayer, Preliminary Treatise on Evidence, p. 17 n.

[1 ]See e. g. the recitals in the St. of Vouchers (20 Edw. I. st. 1) of 1292. So also we are told that “Saint Louis abolished battle in his country because it happened often that when there was a contention between a poor man and a rich man, in which trial by battle was necessary, the rich man paid so much that all the champions were on his side, and the poor man could find none to help him.” Grandes Chroniques de France, vol. 4, p. 427, 430, al. 3, cited in Brunner, Schw. 295, note.

[2 ]Schw. 300-304. Compare Bigelow, Pl. A. N. xxvii n.

[3 ]Glanvill, lib. 2, c. 7. This well-known passage runs in substance thus: The Grand Assize is a royal favor, granted to the people by the goodness of the king, with the advice of the nobles. It so well cares for the life and condition of men that every one may keep his rightful freehold and yet avoid the doubtful chance of the duel, and escape that last penalty, an unexpected and untimely death, or, at least, the shame of enduring infamy in uttering the hateful and shameful word [“Craven”] which comes from the mouth of the conquered party with so much disgrace, as the consequence of his defeat. This institution springs from the greatest equity. Justice, which, after delays many and long, is scarcely ever found in the duel, is more easily and quickly reached by this proceeding. The assize does not allow so many essoins as the duel; thus labor is saved and the expenses of the poor reduced. Moreover, by as much as the testimony of several credible witnesses outweighs in courts that of a single one, by so much is this process more equitable than the duel. For while the duel goes upon the testimony of one sworn person, this institution requires the oaths of at least twelve lawful men.

[1 ]Duello, cc. 8 and 13.

[2 ]If the lawyers knew how much they could promote the cause of legal learning, and thereby improve our law, by becoming members of this excellent society (it costs a guinea a year), they would not neglect the opportunity. The American Secretary and Treasurer is Mr. Richard W. Hale, of No. 10, Tremont St., Boston.

[3 ]pp. 41, 42, 43, 61, 305.

[4 ]Duello, c. 13.

[5 ]Glanvill, lib. 2, c. 3, sets forth that in this class of cases the plaintiff cannot be his own champion, for he must have a good witness, who shall speak of his own knowledge or that of his father. So in the recognition, substituted for the battle, the jurymen—the twelve witnesses of Glanvill’s eulogy, so much better than the one battle-witness—are to speak of their own personal knowledge, or by the report of their fathers, et per talia quibus fidem teneantur habere ut propriis. Ib. lib. 2, c. 17. Compare Brunner, Schw. 180.

[1 ]Maitland, Sel. Pl. Cr. i. 192; s. c. Bracton, 151 b.

[2 ]Y. B. 17 Edw. III. 2, 6; s. c. Lib. Ass. 48, 1; Y. B. 9 H. IV. 3, 16.

[3 ]Y. B. 1 H. VI. 6, 29.

[4 ]Com. England, bk. ii. c. 8.

[5 ]Dyer, 301.

[6 ]Glossary, sub voc. Campus (ad 1625).

[1 ]How rusty the lawyers were in 1554, as regards the Grand Assize, is shown in Lord Windsor v. St. John, Dyer, 98 and 103 b.

[2 ]Cro. Car. 522; Rushworth’s Coll. ii. 788. Milton, a contemporary of this case, has gravely entered in his Common Place Book, the following, having reference to a case of the last preceding century: “De Duellis: Not certain in deciding the truth, as appears by the combat fought between 2 Scots before the L. Grey of Wilton in the market place of Haddington, wherein Hamilton, that was almost if not cleerly known to be innocent, was vanquish’t and slain, and Newton the offender remained victor and was rewarded by the Ld. Grey. Holinsh. p. 993.”

[3 ]Ashford v. Thornton, 1 B. & Ald. 405.

[4 ]Neilson, Trial by Combat, 330.

[5 ]Stat. 59 Geo. III. c. 46,—reciting that “appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found to be oppressive; and the trial by battle in any suit is a mode of trial unfit to be used; and it is expedient that the same should be wholly abolished.” The statute went on to enact that all such appeals “shall cease, determine, and become void and . . . utterly abolished, [and that] in any writ of right now depending or hereafter to be brought, the tenant shall not be received to wage battle, nor shall issue be joined or trial be had by battle in any writ of right.”

[1 ]“The writs of parliament are,” said Coke, nearly three centuries ago (2 Inst. 597), “to return two knights for every county gladiis cinctos, not that they should come to the parliament girt with swords, but that they should be able to do knight’s service.” But the courts always kept up the real thing. The ceremony of choosing the knights is described in 1406 (Y. B. 7 H. IV. 20, 28) thus: “The four knights were called, who came to the bar girt with swords [“girt with swords above their garments,” says Dyer in Lord Windsor v. St. John, Dyer, 103 b. ad 1554] and were charged . . . to choose twelve knights girt with swords from themselves and others, . . . and the justices ordered the parties to go with the knights into a chamber to choose and to declare their challenges of the others chosen by the four, for after the return of the panel so made by the four knights the parties shall have no challenge to panel or polls before the justices.”

In Y. B. 30 & 31 Ed. I. 117 (1302), the oath of the four electing knights is: “I will lawfully choose sixteen knights girt with swords, from among myself and the others,” etc. This appears to have been the rule, to choose twelve and to add the four,—so that the whole assize was sixteen. (Brunner, Schw. p. 365.) The old cases show the full number, but sometimes only a part of the four electors are included, and sometimes none of them, perhaps owing to challenges. See cases of 1198-9 in 1 Rot. Cur. Reg. 197, 198, 200, and 201, a case of 1199 in 2 ib. 27, and one of 1269 in North. Ass. Rolls (Surtees Soc.) 137. Stephen (Pleading, 129, Tyler’s ed.) says: “These knights [the four] and twelve of the recognitors so elected, together making a jury of sixteen, constitute what is called the grand assize.”

[2 ]Except as a belated case or two of a writ of right may have remained over for trial at a later date. The latest case appears to have been that of Davies v. Lowndes, reported as of April, 1835, in 1 Bing. N. C. 597, and, at a second trial, as of November and December, 1838, in 5 ib. 161 (Forsyth, Tr. by Jury, 139).

[1 ]This essay was first printed in the Harvard Law Review, vol. XIII, pp. 177-189 (1900).

[2 ]A biographical notice of this author is prefixed to Essay No. 3, in volume 1 of this Collection.

[3 ]Cn. ii. 12 (Wessex), 15 (Danelaw).

[1 ]Ll. Hen. c. 10. This text, as printed, reckons “furtum morte impunitum” among pleas of the Crown; but it is clear from Glanv. xiv. 8 that ordinary thefts were left to the justice of the County Courts.

[2 ]“Murdrum enim idem est quod absconditum vel occultum,” Dial. Sc. I. C. 10. So for Glanvill (xiv. 3) murder is that kind of homicide which is done in secret, so that the slayer cannot be followed with hue and cry.

[3 ]See Maitland, P. C. for the County of Gloucester, xxix; and examples in the text passim.

[1 ]Y. B. 11 Hen. IV. 12, pl. 24.

[2 ]Glanv. viii. 9. A much more elaborate practice, which does not concern us here, was developed in the 13th cent., see P. and M. ii. 666.

[1 ]See the quotations s. v. in the Oxford English Dictionary, and cp. P. and M. ii. 661.

[2 ]Bract., fo. 142 b.

[1 ]In 1219, P. and M. ii. 650, Thayer, Preliminary Treatise on Evidence, 69.

[2 ]See the case of Ailward, Bigelow Pl. A. N. 260, Materials for Hist. St. Thomas (Rous series), i. 156, ii. 171. For a similar case where the trial had been by battle, cp. Maitland, P. C. for Gloucester, 142.

[3 ]Assizes of Clarendon (1166), c. 14, and of Northampton (1176) c. 1.

[1 ]Thayer, Preliminary Treatise, 82, 83.

[2 ]Case from Warwickshire Eyre, ad 1221. Select Pleas of the Crown, ed. Maitland (Seld. Soc.), No. 153. Appeal of murder brought by widow against one Thomas. She is adjudged disqualified because she has married again and the second husband makes no appeal: “et ideo inquiratur veritas per patriam. Et Thomas defendit mortem set non vult ponere se super patriam. Et xij juratores dicunt quod culpabilis est de morte illa, et xxiiij milites alii a predictis xij ad hoc electi idem dicunt, et ideo suspendatur.” Similar process in a case of theft, in same eyre, No. 157. The verdict of a jury reinforced by a second jury of double their number was apparently taken as equivalent to ocular proof.

[1 ]P. and M. ii. 649; Stephen, Hist. Cr. L. i. 298, 299; Thayer, Preliminary Treatise, 74.

[2 ]Assize of Northampton, art. 3, S. C. 151.

[1 ]Maitland, P. C. for the County of Gloucester, No. 280 (a. p. 1221). Magna Carta had already forbidden inferior courts to hold pleas of the Crown; it would seem that summary disposal of a “hand-having” thief was not deemed a placitum at all.

[2 ]Bracton, fo. 137; Note Book, No. 138; P. C. for County of Gloucester, No. 394, where we have the form of judgment by the king’s judges in such a case: “consideratum est quod ipse non potest defendere et ideo suspendatur.” The twelve jurors mentioned here and in the similar case No. 174 (translated in our text) are an accusing body, not the final judges of the fact, that is, they are more like a grand than a petty jury as we understand those terms. What Bracton calls the “violent presumption” takes the place of any further proof or trial. Sir James Stephen’s comment (Hist. Cr. L. i. 260) is rather misleading, as its language ignores this distinction.

[3 ]Præterea in quolibet comitatu eligantur tres milites et unus clericus custodes placitorum coronæ, “Judicial Visitation,” art. 20, S. C. 260; Gross, Introduction to Select Coroners’ Rolls, Seld. Soc. 1896. The phrase “custodire placita coronæ” was in use earlier; the doubt is how much of the significance given to it in 1194 was new.

[1 ]C. 24. This was not held to apply to summary and interlocutory business. Cp. as to the county court xiii Harv. L. R. p. 182, and see Bracton 150 b.

[2 ]Gross, op. cit. xxv.-xxx.

[3 ]S. C. 264. And see Const. Hist. c. 15.

[1 ]S. C. 448.

[2 ]P. and M. ii. 525-6.

[1 ]Bracton, fo. 111. This was of course possible independently of the clause of Magna Carta which led to the commission of assize properly so called, and, as I read Bracton, it was a known thing in the earlier practice. And see “Circuits and Assizes” by Mr. G. J. Turner, in 3 Enc. Laws of Eng. 26.

[1 ]Stubbs, C. H. c. 15, § 235.

[2 ]S. C. 358; Bract. 115 b; Maitland, Pleas of the Crown for Gloucester, xxiv.

[3 ]Op. cit. xxvi.

[1 ]Assize of Clarendon, Stubbs, S. C. 143.

[1 ]See L. Q. R. ix. 278-9.

[2 ]Commonwealth of England, Bk. 2, Ch. 26.

[1 ]This essay forms Chapters VI and VII of “Court Life under the Plantagenets,” 1890, pp. 81-113 (London: Swan Sonnenschein & Co.).

[2 ]Of His Majesty’s Public Record Office, London; F. S. A.; Director of the Royal Historical Society; Teacher of Early Economic Sources, in the University of London.

Other Publications: History of the Customs Revenue, 1885; Society in the Elizabethan Age, 1888; Antiquities and Curiosities of the Exchequer, 1891; The Red Book of the Exchequer, vols. I-III, 1897 (Rolls Series); and various articles in historical journals.

[1 ]These passages are extracted from “A History of the Criminal Law of England,” 1883 (London: Macmillan & Co.), vol. 1, parts of chapters VII, VIII, and XI (pp. 184-197, 200, 216-231, 232-236, 238-243, 244-254, 319, 324-335, 337-351, 354-358, 364-365, 369-370, 382-383, 397-399, 415-417, 424-427).

[2 ]1829-1894. Cambridge University, M. A. 1854, London University, LL. B. 1854, Oxford University, D. C. L. (Hon.) 1878; Honorary Fellow of Trinity College (Cambridge) 1885; Legal Member of the Council of the Governor-General of India, 1869-1872; Professor of Common Law in the Inns of Court, 1875; Judge of the High Court of Justice, Queen’s Bench Division, 1879-1891.

Other Publications: Essays of a Barrister, 1862; General View of the Criminal Law of England, 1863 (2d ed. 1890); The Indian Evidence Act, with an Introduction on the Principles of Judicial Evidence, 1872; Liberty, Equality, and Fraternity, 1873; Digest of the Law of Evidence, 1874; Digest of the Criminal Law, 1877; Digest of the Law of Criminal Procedure in Indictable Offences, 1883.

[1 ]As to existing laws of arrest, see Dig. Crim. Proc. ch. xii. arts. 96-98.

[2 ]On the conservators of the peace, see FitzHerbert, Justices of the Peace, 6 B.; Coke, 2nd Inst. 538; a large collection of authorities in Burn’s Justice, title “Justices of the Peace;” Hawkins, Pleas of the Crown, bk. ii. ch. viii. vol. ii. p. 38, edition of 1814; but the best and most instructive account of the matter is to be found in the celebrated judgment of Lord Camden in Entick v. Carrington (the case of the seizure of papers), 19 St. Trials, 1030. See also Stephen’s Hist. Cr. L. of Eng. p. 110, &c.

[3 ]Stubbs, Charters, 140-146.

[4 ]Ib. 150-153.

[1 ]Arts. 2, 4.

[2 ]“Robator vel murdrator vel latro.”

[3 ]Arts. 9-11.

[4 ]Art. 12; Stubbs, Charters, 152.

[5 ]“Essonium,” this is the technical word for the excuses given for not taking a step in procedure, e. g. for not appearing on being summoned in an action.

[6 ]Stubbs, Charters, 154.

[1 ]Bracton, iii. 1, vol. ii. p. 235-237 (Twiss’s edition).

[1 ]This enactment was followed by others, e. g. 9 Geo. 1, c. 22, s. 7 (the Black Act), which in particular cases rendered the hundred liable for damages inflicted by criminals. They were all repealed by 7 & 8 Geo. 4, c. 27. There are, however, still one or two cases in which such a liability is imposed by 7 & 8 Geo. 4, c. 31. These relate to damages caused by rioters.

[1 ]See e. g. a petition in 1377 (1 Richard II.): “Item suppliont les ditz communs q les Srs qui ount letters et viewe de frank plegg’ q’ils faient due punissement as Taverners de vins si avant come des autres vitailles.” The answer is, “Il n’est mye article de veue de frank plegge mais en soit usee come ad estee fait resonablement avant ces heures.” 3 Rot. Par. 19; and see 4th Inst. 261.

[1 ]The Statute of Winchester is not mentioned in Coke’s 2nd Institute, and though it was not repealed till 1828, it had for centuries before that time been greatly neglected. See Barrington’s Observations on the Statutes, p. 146.

[1 ]“At eleven o’clock the same night, as I was going into bed, Mr. Thynne’s gentleman came to me to grant a hue and cry” (on his master’s murder by the friends of Count Coningsmark).—Sir J. Reresby’s Memoirs, p. 235 (edition of 1875).

[2 ]See e. g. 9 Geo. 1, c. 7, s. 3; 13 Geo. 3, c. 31; 44 Geo. 3, c. 92.

[3 ]Dig. Crim. Proc. arts. 99-108.

[4 ]Bk. ii. ch. xiii. vol. ii. pp. 129, 130, edition of 1824.

[1 ]4th Inst. 176, 177.

[2 ]2 P. C. 107-110.

[1 ]2 Hale, 72-105.

[2 ]As to present law of summary arrest, see Dig. Crim. Proc. ch. xii. arts. 96-98.

[1 ]1 Hale, 481, 489; and see Foster, 271. This rule seems to overlook the distinction between taking a man prisoner and taking possession of his dead body, for it is difficult to see in what sense a pickpocket can be said to be taken if he is shot dead on the spot. The rule would be more accurately expressed by saying that a man is justified in using any violence to arrest a felon which may be necessary for that purpose, even if it puts, and is known and meant to put, his life in the greatest possible danger, and is inflicted by a deadly weapon, and does in fact kill him.

[2 ]1 Hale, 490; Foster, 418.

[1 ]Dalton’s Justice, p. 3; Burn’s Justice, title “Constable.” A tithingman seems to have been subordinate to the constable.

[2 ]1st Report, p. 17.

[3 ]P. 29.

[1 ]Published in 1796. In the Report of a Select Committee on the Police of the Metropolis, published in 1838, the Committee says of this work, “The merit of being the first to point out the necessity and practicability of a system of preventive police upon an uniform and consistent plan is due to Mr. Colquhoun, the author of the treatise On the Police of the Metropolis.”

[2 ]Colquhoun, p. 232.

[1 ]Parliamentary committees reported on the subject in 1816, 1817, 1818, 1822, and 1828. The evidence given before them fills several bluebooks, and is curious and instructive.

[1 ]For the present law on this subject, and on incidental procedure, see Dig. Crim. Proc. ch. xiii.—xvii., arts. 99-140.

[2 ]Const. Hist. i. 505. For present law, see Dig. Crim. Proc. ch. vii. arts. 43-60, as to appointment and removal of coroners, as to inquests, procedure, &c., arts. 207-232.

[3 ]Bracton, lib. iii. (De Corona) ch. v. Sir T. Twiss discusses the question whether Bracton copied from the statute or the statute from Bracton, and gives reasons in support of the latter view in the introduction to vol. ii. of his edition of Bracton, p. lxi. The Statutum Walliæ contains provisions substantially identical with those of 4 Edw. 1.

[1 ]“Sicut statim vendi possunt.”

[1 ]The historical reason for these enactments will be found in Stephen’s Hist. Cr. L. of Eng., p. 236.

[2 ]11 & 12 Vic. c. 42, s. 17. See Dig. Crim. Proc. art. 109, &c.

[1 ]30 & 31 Vic. c. 35, s. 3.

[2 ]S. 25.

[3 ]S. 27.

[4 ]S. 17.

[1 ]The subject is fully described in Mr. Lea’s Superstition and Force, Philadelphia, 1878, 371-522. According to Mr. Lea, torture was gradually introduced throughout the Continent in the course of the fourteenth, fifteenth, and sixteenth centuries. It was connected with the revival of the Roman law.

[2 ]6 St. Tr. 619, 630.

[1 ]Ib. 572-575.

[2 ]9 St. Tr. 1, and the Memoirs of Sir John Reresby, pp. 235-241.

[3 ]9 St. Tr. pp. 122-124.

[1 ]Memoirs, p. 281.

[2 ]8 St. Tr. 525.

[1 ]In the Revised Statutes. In other editions it is s. 11.

[2 ]8 St. Tr. 723-726, 732.

[1 ]Mr. Chitty moved in arrest of judgment that the proceedings were void because part of the trial took place on the Feast of the Epiphany.

[2 ]The charge is published in the Times, Dec. 5, 1823, also in two printed accounts of the trial which appeared at the time, one of which is in the Inner Temple library. Both of them appear to be in substance reprints from the Times.

[1 ]This observation is too characteristic to have been invented, and so guarantees the authenticity of the report.

[1 ]Introduction to Journal of a Voyage to Lisbon, Works, xii. p. 230, edition of 1775.

[1 ]This reads like an insinuation that he book bribes.

[2 ]This brother was John Fielding, well known for many years as the blind justice. Henry Fielding’s son, William Fielding, was also a London magistrate. He gave evidence before a Committee of the House of Commons in 1816, when he said he had been fifty years in the commission for Westminster.

[3 ]Report of 1816, pp. 139, 140.

[1 ]Dig. Crim. Proc. arts. 136-140.

[1 ]Lib. xiv. c. 1.

[2 ]In cases of treason, ii. 261; homicide, ii. 283; treasure trove, ii. 287; rape, ii. 289; wounding, ii. 288; and see 293.

[3 ]Hist. Cr. L. of Eng. 302.

[1 ]Coke labours to show that this means “by a court of justice,” through which alone the king can act (2nd Inst. p. 186), and see 2 Hale, P. C. 131. This may be very sound constitutional doctrine, but it seems to make nonsense of the alternative “or of his justices.”

[1 ]Mr. Stubbs, in his glossary, says, “Retare, Rettare, to accuse, from the Norse rett, an imputation or accusation.” It soon ran into rectatus from a reminiscence of rectum.

[2 ]2 Hale, P. C. 138-140.

[3 ]For them see 7 Geo. 4, c. 64, s. 32, the repealing clause.

[1 ]There were various forms of it, one for common offences, another for forest offences. See FitzHerbert, De Naturâ Brevium, and see also 2 Hale, Pleas of the Crown.

[1 ]2 Hale, P. C. 124.

[2 ]2 Hale, P. C. 140.

[3 ]Malice. “Ex Anglo-Saxonico forte ‘hatung’ unde Anglis ‘hate’ et Germanis ‘Haet’ . . . vel potius a Greco ἄτη” (Ducange).

[4 ]Bracton, ii. pp. 292-296.

[5 ]I suppose sheriffs and coroners.

[1 ]Bracton, ii. 295-297.

[2 ]“Nihil detur vel capietur de cetero pro brevi inquisitionis de vita vel membris, sed gratis concedetur et non negetur.”—Stubbs, Charters, p. 301. Magna Charta, art. 36.

[3 ]See on this writ, 2 Hale. P. C. 148; Coke, 2nd Inst. 421, on Magna Charta, c. 26, p. 315, on the Statute of Gloucester, c. 9. See also Foster, 284-285.

[4 ]See e. g. the case of Witmore for kidnapping in 1682, 8 State Trials, 1347, and two records of de homine replegiando printed at pp. 1350-1385. See also some remarks in Selden’s argument in the case of the writ of habeas corpus moved for on behalf of Hampden and others, 3 St. Tr. 95. In the case of Lord Grey of Werke, a writ de homine replegiando was issued to force him to produce his sister-in-law, Lady Henrietta Berkeley, whom he had seduced. See 9 St. Tr. 184.

[1 ]The Courts of Common Pleas and Exchequer had originally to issue the writ under a fiction to the effect that the person requiring it was privileged or was to be sued in the court from which the writ issued. See 2 Hale, P. C. 144; but by 16 Chas. 1, c. 10, s. 6, the Common Pleas obtained original jurisdiction in the matter and by 31 Chas. 2, c. 2, all the three courts are empowered to grant the writ.

[2 ]Stephen’s Hist. Cr. L. of Eng., ch. vi.

[3 ]If compurgation is counted there have been four, but compurgation in criminal cases hardly survived the Norman Conquest, though some traces of it remained in the hundred and manor courts. In the ecclesiastical courts it lasted till 1640, as will appear hereafter. In the form of “wager of law” in civil cases it maintained a nominal existence till the year 1834, when it was abolished by 3 & 4 Will. 4, c. 42, s. 13. Probably the last case in which it was actually put in force was King v. Williams (2 B. and C. 538, 1824). In this case on an action of simple contract the defendant prepared to bring eleven “compurgators, but the plaintiff abandoned his action.” Much information on this subject is to be found in Pike’s History of Crime. The references are collected in the Index.

[1 ]Brac. 424-33.

[1 ]Bracton, ii. 425.

[2 ]Ib. p. 434.

[3 ]Ib. p. 442.

[4 ]Ib. p. 452.

[5 ]Ib. p. 448.

[6 ]Britton (by Nicholls), 97-125.

[1 ]Bk. ii. ch. xxiii. vol. ii. p. 223-281, ed. 1824. The book was written early in the eighteenth century.

[2 ]3 St. Tr. 483-519. Some other cases of trial by combat in civil cases are referred to in the notes to this case. One of the combatants in the last case of trial by battle in a civil action was Lilburn, the father of John Lilburn, known under Charles I. and Cromwell as “Free-born John.”

[1 ]Corone, No. 44, H. 22 Edw. 4.

[1 ]In Spencer Cowper’s case, 13 St. Tr. 1190, as also the cases of Bambridge and Corbet, 17 St. Tr. 395-7. In Bigby v. Kennedy, 5 Bur. 2643, a careful report is given of the proceedings in an appeal on account of their rarity.

[2 ]See an account of this in Horne Tooke’s defence on his prosecution for libel in 1777. 20 St. Tr. 716, 717.

[3 ]1 Bar. and Ald. 405.

[4 ]Mr. Chitty and Sir N. Tindal argued the case. It will be found that practically Bracton is the great authority.

[1 ]Bracton, 523, &c.

[2 ]Ib. 532.

[1 ]Glanville, book xiv.

[2 ]Stubbs, Charters, 143, 150.

[1 ]This was the common punishment for robbery in India under native rule. I have myself seen men in Lahore whose hands (as they said themselves) had been cut off by Runjeet Singh for theft. In the Life of Thomas, a Baptist missionary at Calcutta, there is an account of the punishment of fourteen decoits in the neighbourhood of Calcutta, each of whom had his hand and foot cut off on the 15th February, 1789, on the western bank of the Hooghly, opposite Calcutta.—Lewis’s Life of Thomas, p. 18.

[2 ]Palgrave, clxxxv.—clxxxviii.

[1 ]Palgrave, cxiii.

[2 ]The last reference to the system which I have met with is in one of the trials for the Popish Plot. Gavan, one of the five Jesuits who were tried and executed upon the evidence of Oates in 1679, begged to be allowed “to put himself upon the trial of ordeal” (7 St. Tr. 383), alleging that “in the beginning of the Church it was a custom, and grew to a constant law,” that a person accused of a capital offence should be allowed to do so when there was only the accuser’s oath against his denial. It is odd that Gavan should have supposed that judgment by ordeal was a specially ecclesiastical mode of proceeding, when, in fact, its abolition was due to the ecclesiastical legislation on the subject.

[3 ]Stephen’s Hist. Cr. L. of Eng., p. 102.

[1 ]The law relating to petty juries is now regulated by statute in most though not in all particulars (see 6 Geo. 4, c. 50, and some later acts, especially 33 and 34 Vic. c. 77). As to grand juries, see Dig. Crim. Proc. ch. xxii. arts. 184-188.

[1 ]1 St. Tr. 395.

[1 ]The copy of the indictment is very imperfect. 1 St. Tr. p. 869.

[2 ]In Fortescue’s time the judges usually sat from 8 to 11.

[1 ]He was probably the Prime Serjeant, who, if there were such a personage in these days, would take precedence of the law officers. In most of the cases referred to the Prime Serjeant is leading counsel for the prosecution.

[1 ]“Proveably attainted by open deed by people of like condition.” People of like condition, according to Bromley, C. J., means “your accomplices in treason—traitors like yourself”—which Throckmorton naturally called “a very strange and singular understanding.”

[1 ]1 St. Tr. 957-1042.

[1 ]1 St. Tr. 1049-1088.

[2 ]Ib. 1141-1162.

[3 ]Ib. 1253.

[4 ]Ib. 1271-1315.

[1 ]2 St. Tr. 1-60.

[2 ]Ib. 159-359.

[3 ]Ib. 911-1022.

[4 ]Ib. 965-1022.

[5 ]Ib. 936.

[6 ]Ib. 992-994.

[7 ]Ib. 939-940.

[8 ]Ib. 941.

[9 ]Ib. 946.

[1 ]2 St. Tr. 25.

[2 ]Ib. 26:—“Att.: Thou art the most vile and execrable traitor that ever lived. Raleigh: You speak indiscreetly, barbarously, and uncivilly. Att.: I want words sufficient to express thy viperous treasons. Raleigh: I think you want words, indeed, for you have spoken one thing half a dozen times. Att.: Thou art an odious fellow. Thy name is hateful to all the realm of England for thy pride. Raleigh: It will go hard to prove a measuring cast between you and me, Mr. Attorney. Att.: Well I will now make it appear that there never lived a viler viper upon the face of the earth than thou.” In the case of Wraynham before the Star Chamber for slandering Lord Bacon, Coke said, “Take this from me, that what grief soever a man hath, ill words work no good, and learned counsel never use them.”—2 St. Tr. 1073. As to Raleigh’s trial viewed historically, see Gardiner’s Hist. of Eng. i. 93-109.

[1 ]3rd Inst. 25-26.

[2 ]2 St. Tr. 14.

[3 ]Ib. 15.

[4 ]Ib. 18.

[1 ]2 St. Tr. 1022.

[1 ]Tristia, iii. 5, 35, 36. The first line is both incorrect and imperfect. It is “Ut lupus et turpes instant morientibus ursi.”

[2 ]3 St. Tr. 519.

[3 ]3 St. Tr. 373.

[1 ]3 St. Tr.

[2 ]Ib. 572.

[3 ]St. Tr. 585.

[1 ]Under the name of the “voir” (vrai) “dire.” “You shall true answer make to all such questions as shall be demanded of you.”

[2 ]3 St. Tr. 1315-1368.

[3 ]Ib. 1317.

[1 ]3 St. Tr. 1320.

[2 ]3 St. Tr. 1322.

[3 ]Ib. 1325.

[1 ]Smith’s Commonwealth, ch. xxv. pp. 183-201.

[1 ]“It will seem strange to all nations that do use the Civil Law of the Roman Emperors that for life and death there is nothing put in writing but the indictment only. All the rest is done openly in the presence of the judges, the inquest, and 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.”—P. 196.

[1 ]Observations on the Statutes, pp. 89, 90.

[2 ]The paper is not printed in the Journals, but the House had then before it a question as to giving Scotch courts jurisdiction over Englishmen charged with border offences. See Gardiner, Hist. of Eng. i. 320-321.

[1 ]This matter is fully examined in Mr. Gardiner’s History of England, i. pp. 96-108; see in particular pp. 106-7.

[1 ]4 St. Tr. 1101-1113.

[1 ]7 & 8 Will. 3, c. 3.

[1 ]7 Anne, c. 27. s. 14.

[2 ]1 Anne. st. 2. c. 9.

[3 ]See e. g. the trial of Harrison for the murder of Dr. Clench, in which the prisoner was questioned at some length by Holt, 12. St. Tr. 859.

[1 ]19 St. Tr. 815.

[2 ]Ib. 886.

[1 ]6 & 7 Will. 4, c. 114, s. 1.

[1 ]This essay was first published in the Law Quarterly Review, vol. XVIII, pp. 64-77 (1902).

[2 ]A biographical notice of this author is prefixed to Essay No. 2, in volume I of this Collection.

[1 ]The only serious attempt at history known to the writer is that of Mr. A. A. Fry, who was counsel for the Canadian prisoners in 1838, and who published a pamphlet on the subject. This pamphlet was afterwards made the basis of an essay by a learned Dutchman, Dr. Van der Veen (De Engelsche Habeas Corpus Act. Leiden. 1878). But Mr. Fry gives up the inquiry at the very point at which it becomes interesting, adding some rather unkind suggestions about antiquarians and their amusements (p. 9, n.).

[2 ]Commentaries, iii. 131. This has become the orthodox phrase.

[3 ]‘In all pleas of felony the accused is wont to be let out on bail, except in plea of homicide’ (xiv. 1). I doubt very much whether this includes the person indicted at the suit of the king. We must remember that the indictment was a novelty when Glanvil wrote. The corresponding passage in Bracton (fo. 123) clearly refers only to Appeals.

[4 ]2 Inst. 42.

[1 ]Cap. 39.

[2 ]Edw. I. c. 15.

[3 ]2 Inst. 186.

[4 ]See the form in F. N. B. 66 F.

[5 ]Ibid. 68 C.

[1 ]For convenience a few of these may be named: Natura Brevium (Pynson), about 1510; Liber Intrationum (Pynson), 1510; Novae Narrationes (Pynson), about 1516; Registrum Omnium Brevium (Rastell), 1531; Novel Natura Brevium (Fitzherbert), 1534; Natura Brevium (Rastell), 1534; Retorna Brevium, 1541 (but previously); Natura Brevium, newly and most trewly corrected (Redman), about 1543; Intrationum Liber (Henry Smythe), 1546; Registrum Omnium Brevium (Yetsweirt), 1595; Booke of Entries (Coke), 1614; Book of Entries (Moyle), 1658; Thesaurus Brevium, 1661; Brevia Judicialia (Brownlow), 1662; Officina Brevium, 1679.

[2 ]E. g. Registrum (Rastell), 83; F. N. B. 249 G.

[3 ]28 Edw. III. c. 9.

[4 ]4 Edw. III. c. 2.

[5 ]Little Treatise of Bail and Mainprize, cap. 3.

[6 ]Fo. 123 a.

[1 ]See Pollock and Maitland (2nd ed.), ii. p. 588 n.

[2 ]2 Inst. 43. The extreme unfairness of Coke’s argument on the Statute of Westminster I is apparent from the writ de bono et malo, which he quotes in another part of his book. This writ apparently allowed a prisoner to be delivered from gaol if he were willing to put himself upon a jury. But it contained the express words et non per aliquod speciale mandatum nostrum (2 Inst. 43). One would like to know more of this writ; but it seems to have disappeared before the Register got into print.

[3 ]It may be noted that in his Treatise on Bail and Mainprize (cap. 10), Coke had already given a different account of the disappearance of the writ de odio et atia.

[4 ]13 Edw. I. c. 29 ‘appealed or indicted.’

[5 ]Fo. 123 a. The writ de cautione admittenda, also alluded to by counsel for the prisoners in the Five Knights’ Case, seems to have been applicable only to secure the release of a person who had been taken on an excommunicato capiendo, and who was willing to purge himself of his contumacy (F. N. B. 63 C).

[1 ]Registrum (Rastell), ii. 23.

[2 ]Ibid. 29.

[3 ]Ibid. 1.

[4 ]13 Edw. I. c. 11 (Account); 25 Edw. III. st. v. c. 17 (Debt, Detinue, and Replevin); 19 Hen. VII. c. 9 (Case).

[5 ]Registrum, 24. The absurdities to which this clumsy form of procedure gave rise are well illustrated by the fact that, in the reign of Elizabeth, an outlawed defendant claimed to be discharged on the ground of a general pardon (Coke, Entries, 345, Pewe of Penrhyn’s Case). At one time he could always get out of prison by suing a supersedeas before he was finally exacted, or a pardon afterwards. These abuses were put an end to by statute (5 Edw. III. c. 12).

[6 ]If there was the slightest suspicion of the sheriff’s good faith, there might be added to this writ a subpoena duces tecum (Officina, 65), or a fine might be imposed on the sheriff at once (Registrum, ii. 76).

[1 ]Registrum, ii. 74.

[2 ]25 Edw. III. st. v. c. 14.

[3 ]Registrum, ii. 31.

[4 ]History (2nd ed.), ii. 593.

[1 ]Fo. 344. It should be noticed that Coke’s form does not always include the et detentionis.

[2 ]Hawkins, P. C. ii. 27, § 27; R. v. Eaton (1787) 2 T. R. 89; C. O. R. 1886, R. 29.

[3 ]2 Hen. V. st. i. c. 2. ‘Writs of certiorari and corpus cum causa.’

[4 ]15 Hen. VI. c. 4. See also 6 Hen. VIII. c. 6, and 1 Ph. & M. c. 13, § 7.

[1 ]11 Hen. VI. c. 10. ‘Divers writs of corpus cum causa before the king in his Chancery.’ It is possible that the origin of the Chancery jurisdiction in this procedure is the statute of 1414 (2 Hen. V. c. 9). But, of course, recognizances were specially the concern of the Chancellor.

[2 ]10 Hen. VI. c. 6.

[3 ]43 Eliz. c. 5; 21 Jac. I. c. 23.

[4 ]Glanvil, vi. 7.

[5 ]Maitland, Harvard Law Review, iii. 113.

[6 ]Ed. of 1607, sub tit. Habeas Corpus. The writ referred to by Cowell in the Register Judicial (fo. 81) is not, however, the Corpus cum causa. See also under that title in Cowell.

[1 ]Y. B. 14 Hen. IV (Hill.), pl. 72.

[2 ]See the writ in Liber Intrationum, fo. 11.

[3 ]Y. B. 4 Hen. VI (Mich.), pl. 22; 9 Hen. VI (Mich.), pl. 40, Lucy Water’s Case.

[4 ]Y. B. 9 Hen. VI (Pasch.), pl. 16.

[5 ]Y. B. 9 Hen. VI (Mich.), pl. 24.

[6 ]Y. B. 22 Hen. VI (Hill.), pl. 34, Danby’s and Baker’s Case.

[7 ]Y. B. 39 Hen. VI (Hill.), pl. 15; affirmed, 2 Hen. VII (Mich.), pl. 6.

[1 ]Y. B. 8 Edw. IV (Mich.), pl. 23.

[2 ]Y. B. 16 Edw. IV (Mich.), pl. 5; Worlay v. Harrison (Dyer, 249 b).

[3 ]The Supersedeas as a writ of Privilege, with date 39 Edw. III, is given in the Registrum (Rastell), fo. 91. The Common Law Courts did not, apparently, issue a writ of Privilege; but, upon presentation of a Bill of Privilege by the applicant, awarded at once the Corpus cum causa to the gaoler.

[4 ]One very interesting writ in Brownlow (p. 115) bids the sheriffs (vobis . . . presumably, of London) nolentes ipsum W. vinclum imprisonamenti tamdiu subire, ‘to have the body of the said W. on Friday, the 3rd August next, before W. P. one of the Justices of Our Bench at the mansion house of the said Justice at Strond (? Stroud) Bridge to do and receive.’ If the W. P. referred to is William Peryam, the writ must date from the last quarter of the sixteenth century. But if it be William Paston, whose ancestors were settled at Horton, near Stroud (Glouc.), long before they colonized Norfolk, then the writ is 150 years older. But these are guesses.

[5 ]Liber Intrationum (Pynson), fo. 25.

[1 ]I cannot find any trace in the histories of any John Elyngton. He may have been the John Alyngton of whom we read in the Paston Letters (ed. Gairdner, i. 277) as having been one of the informers against the notorious rioter, Robert Ledham, in 1453. But this is mere conjecture.

[2 ]Obviously, the amount was only just enough to give the Bench jurisdiction (6 Edw. I. c. 8, Stat. Glouc. c. 8).

[3 ]13 Hen. VII (Mich.), pl. 1. This had been previously admitted (Y. B. 9 Hen. VI (Mich.), pl. 24).

[4 ]ff. 66, 81.

[1 ]1 Leon. 70.

[2 ]Ibid. 71.

[3 ]Anderson’s Reports, p. 298.

[1 ]C. J. i. 149. In this case the Habeas Corpus was issued by virtue of a warrant of the Speaker directed to the Clerk of the Crown in Chancery. In former days a writ of Privilege would have been necessary.

[2 ]See the writ in Brownlow, 122. Coke claimed (4 Inst. 333) that a similar victory had been obtained over the same Commission in 1567, in the case of Thomas Lee. But a reference to the writ in this case (Moyle, 61) shows that it issued on the ground of privilege. Lee was an attorney of the Common Pleas.

[3 ]Rep. 121 b.

[4 ]Moyle, 56.

[5 ]3 St. Tr. pp. 1-235.

[1 ]3 St. Tr. p. 127.

[2 ]1 Ric. III. c. 3.

[3 ]3 Hen. VII. c. 3.

[4 ]1 Ph. & M. c. 13, § 2.

[1 ]‘And that no freeman in any such manner as is before mencioned [i. e. without any cause shewed] be imprisoned or deteined.’

[2 ]3 St. Tr. (Howell), pp. 235-294.

[3 ]Hyde, however, threw out a hint that the Court might not be so complaisant on a future occasion (3 St. Tr. p. 289).

[4 ]3 St. Tr. p. 240. And production expressly refused (p. 286).

[5 ]Littleton’s argument (p. 262); Selden’s (p. 265).

[6 ]Ibid. p. 281.

[7 ]Ibid. p. 289.

[1 ]C. J. ii. 21, Nov. 6.

[2 ]Ibid. 28.

[3 ]16 Car. I. c. 10.

[4 ]Statutes (Record Commission), v. 112.

[5 ]6 St. Tr. 1189-1208, anno 1676.

[1 ]31 Car. II. c. 2

[1 ]This essay was first published in the Harvard Law Review, vol. III, pp. 97-115, 167-179, 212-225 (1889).

[2 ]A biographical notice of this author is prefixed to Essay No. 1, in volume I of this Collection.

[1 ]Preface to 9 Rep.

[1 ]Stat. Westm. II., c. 14.

[1 ]This change I infer from the cases in Bracton’s Note Book. On 18 July, 1822, a writ was sent to Ireland, fixing Richard’s death as the period for the Mort d’Ancestor, in order to assimilate Irish to English law. See Sweetman’s Calendar of Irish Documents, p. 160.

[2 ]Bracton’s Note Book, vol. i., p. 106; vol. iii., p. 230. Compare the Irish writ given in Statutes of the Realm, i., p. 4. The Statute of Merton in its printed form mentions not Brittany, but Gascony.

[3 ]As regards the Novel Disseisin the change, if any, was but nominal; the “first voyage into Gascony” of the Statute of 1275 was “the voyage to Brittany” of the ordinance of 1237. In 1230 Henry went to Brittany, and thence to Gascony.

[1 ]The “Cursitores,” or “Clerici de cursu,” were the clerks who issued the writs of course. The name of Cursitor street still marks the site of their ancient home. As to their duties, see Fleta, p. 78.

[2 ]Thus, f. 3 b, “quaere comment le brief serra fait ou si le brief gyst;” f. 6 b, “quibusdam videtur quod debeat scribi in istis brevibus etc.;” f. 9, “sapientes et jurisperiti dicunt;” f. 10 b, “secundum quosdam . . . sed alii dicunt;” f. 16, “et est contra registrum;” f. 27 b, “secundum quosdam fiant duo brevia;” f. 29 b, “secundum quosdam;” f. 97 b, “Nota quod non debet dici in brevi predicto specialem auctoritatem ad hoc habentium prout in quibusdam registris invenitur;” f. 108 b, “Nota per Thomam de Newenham; tamen alii clerici de cursu contradicunt;” f. 120 b, “Tamen quaere . . . per plusors sages dit est;” f. 121 b, “Les Maistres de la Chancerie ne voudrient agreer a cest clause;” f. 133, “Nota quidam addunt in istis tribus brevibus, etc.;” f. 134 b, “Vide de breve Statutum W. 2. c. 14 pro ista materia quia hic male reportatur;” f. 183 b, “Nota secundum quosdam . . . et ideo quaere inde;” f. 172 b, “Je croye que son brief nest pas le pire;” f. 184 b, “Credo quod istud breve vacat;” f. 200, “Ascuns gents dirent;” f. 208 b, “In breve de post disseisina non dicatur tam de illis, etc., secundum Escrick;” f. 243 b, “Mes le brief . . . est le meillour come cest register voet;” f. 269, “Ista clausula . . . non continetur in statuto sed additur per quosdam jurisperitos.”

[1 ]The necessity for specialized writs is often noticed in the endorsements on petitions to Parliament; e. g., in those of 14 Edw. II., Ryley’s Placita, p. 408, “Habeat breve novæ disseisinæ in suo casu;” p. 409, “Adeat Cancellarium et habeat ibi breve in suo casu;” p. 412, “Habeat breve de conspiratione formata [conformatum] in suo casu;” p. 423, “Habeat breve de conspiratione in Cancellaria in casu suo formandum;” p. 421, “Habeant brevia suis casibus conveniencia.” So in the Register we find writs issued by order of the Council; e. g., f. 64, “per consilium;” f. 114, a writ founded on a Parliamentary petition; f. 124, “per consilium;” f. 125, “per consilium.”

[2 ]F. 64 b, “Istud attachiamentum est notabile valde;” f. 224, “Nota quod istud breve sigillatum fuit et quassabille ut dicebatur pro veritate.”

[3 ]Parning appears on f. 13 b, 16 b, 35, 69, 99 b, 100 b, 132, 136; in some other cases, though he is not named, we can tell, from the date of the writ, that it belongs to his chancellorship. He is the only Chancellor that appears prominently. A certain Herleston appears in three places, f. 49, 80 b, 261; f. 261, “Hoc breve concessum fuit . . . per cancellarium Lescrop et W. de Herleston,”—i. e. (as I understand it) this writ was granted by the Chancellor, G. le Scrope, the Chief Justice, and W. de Herleston; the date of this writ seems to be 19 Edward III. Herleston was a Master in Chancery under Edward III. So, again, one Thomas of Newenham gets mentioned as a maker of writs; he seems to have been a Master under Edward III. and Richard II.; apparently we owe to him a writ against a vendor of a blind horse, who warranted it sound; see f. 108, 108 b, 151 b.

[1 ]Reg. Brev. Orig. f. 78 b, “Et les maistres W. de Aym. [Ayremine, Master of the Rolls?] et autres” expressed an opinion about a writ which does not commend itself to the annotator; f. 121 b, “Les Maistres de la Chancerie ne voudrient agreer a cest clause;” f. 131 b, “Ceux brefs furent enseales per tants les sages de la chancerie, per assent des serjeants le Roy et autres sages asses” [Nota quod hoc verbum asses non est verbum Anglicum sed verbum Franciscum]; f. 200, “Istud breve fuit concessum de assensu W[illelmum] de T[horpe] capitalis justiciarii et aliorum justiciorum de banco et clericorum de cancellaria.”

[1 ]Reg. Brev. Orig. f. 32, 69 b.

[1 ]Reg. Brev. Orig., f. 129.

[2 ]Brunner, Enstehung der Schwurgerichte, p. 78, compares the breve de recto with the Frankish indiculus communitorius.

[1 ]Originally a Writ of Right is so called, because it orders the feudal lord to do full right to the demandant, plenum rectum tenere; and in this sense, the Præcipe quod reddat is no Writ of Right. But when possessory actions have been established in the King’s court, “right” is contrasted with “seisin,” and all writs originating proprietary actions for land, including the Præcipe in capite, come to be known as Writs of Right. This has been remarked by Brunner, Schwurgerichte, p. 411.

[1 ]This must be a blunder; it should have been “post ultimam transfretacionem patris nostri de Hibernia in Angliam.”

[2 ]Here again there must have been some carelessness. The date referred to is the coronation of Henry II., the present king’s grandfather. The mistake would seem to be due not to the monastic copyist, but to the Chancery clerk who drew up the document sent to Ireland, and was not careful to change into “avi” the “patris” which stood in a formula of John’s reign, from which he was copying. See Sweetman’s Calendar of Irish Documents, pp. 37, 160.

[1 ]This was a moot point in Bracton’s day. Pateshull allowed the layman the assize, but afterwards changed his mind. Bracton thinks this a change for the worse. Bract., f. 285 b.

[1 ]I believe that this writ would have been antiquated after 1229.

[2 ]These writs seem older than 1237.

[1 ]This seems a reference to an eyre of 1222.

[1 ]The development can be seen in Palgrave’s Rot. Cur. Reg., i., 341, “in quam non habuit ingressum nisi quia predicta B. er commisit ad terminum qui preteriit;” ii., 37, “quam pater A. invadiavit B. ad terminum qui preteriit;” ii., 211, “quam ipse invadiavit C. patri predicti B. ad terminum qui preteriit,” etc.

[2 ]Rot. Pat. i., 32, contains a writ of this kind, with the note: “Hoc breve de cetero erit de cursu.” Even from Richard’s reign we have “in quam ecclesiam nullam habet ingressum nisi per ablatorem suum.” Rot. Cur. Reg., i., 391.

[1 ]The privilege of having a jury instead of a grand assize was granted to the Kentish gavelkinders in 1232. Statutes of the Realm, i., 225.

[2 ]The form seems older than 1237.

[1 ]This form seems older than 1237.

[2 ]This form seems newer than 1237.

[3 ]This is called a Writ of Escheat; but it closely resembles the Formedon in the Reverter of later times.

[1 ]This form seems newer than 1237.

[1 ]Bracton, f. 220, notices this writ as a newly invented thing. He recommends, however, another form, which is a Precipe quod reddat; but the above is the form which ultimately prevailed. Reg. Brev. Orig., f. 227.

[2 ]Another of Raleigh’s inventions, which we may ascribe to the year 1237. Bracton’s Note Book, pl. 92.

[3 ]Given by Stat. Mert., cap. 3.

[4 ]This is given by Bracton, f. 159.

[1 ]This will hereafter be attracted into the “Writ of Right group” by the Little Writ of Right for men of the Ancient Demesne.

[1 ]In 1258-9 suit of court was a burning question. The Provisions of Westminster (cap. 2) laid down the rule, that when a tenement which owes a single suit comes to the hands of several persons, either by descent or feoffment, one suit and no more is to be due from it. This writ deals with the converse case in which several parcels of land, each owing a suit to the same court, come into one hand, and it lays down the rule that in this case also one suit is to be due.

[2 ]Bracton’s Note Book, pl. 1215.

[3 ]The printed Registrum, f. 86, says, “istud breve fuit inventum secundum provisiones de Merton.” But the Provisions of Merton, as we have them, contain nothing about distress.

[1 ]I am happy in being able to refer to what is said on this point by “J. B. A.” in Harvard Law Review, ii., 292. [See also Harvard Law Review, iii., 29.—Ed.] Of course Trespass (transgressio) was well enough known in the local courts. “Trespass” and “Debt” were the two great heads of their civil jurisdiction.

[1 ]Glanv., xii., 18; xiii., 39.

[2 ]Bracton, f. 179 b. “Item ad officium (vicecomitis) pertinet quod faciat tenementum reseisiri de catallis, etc., quod hodie aliter observatur, quia quaerens omnia damna post captionem assisae recuperabit.”

[3 ]Rot Cur. Reg., ii., 34, “A. optulit se versus B. de placito transgressionis.” Ibid., 51, “A. queritur quod B. vi sua asportavit bladum de sex acris terre quas disracionavit in curia Dom. Regis (but here the recovery of the land in the king’s court is a special reason for its interference). Ibid., 120, “A. queritur quod B. dominus suus cum vi et armis prostravit boscum et cum forcia frequenter asportat ad domum suam, et quadrigas suas cum forcia in bosco suo de W. capit et adhuc unam illorum habet et detinet injuste.” Ibid., 169, “A queritur quod B. et C. intraverunt in terram suam de X. vi et armis et in pace Regis et averia sua ceperunt et ten” (corr. contra.) “vadium et plegium tenuerunt.” Ibid., 260, “A. queritur quod Episcopus Donelmensis cepit eum et imprisonavit et eum retinuit injuste quousque ipsum redemit et eum contra vadium et plegium retinuit.”

[4 ]Rot. Cur. Reg., i., 38.

[1 ]Selden Society, vol. 1, pl. 35, “appellum de pratis pastis non pertinet ad coronam regis.”

[2 ]Bracton’s Note Book, pl. 85.

[3 ]Rot. Cur. Reg., ii., 120, “A. queritur quod B. dominus suus cum vi et armis prostravit boscum et cum forcia frequenter asportat ad domum suam . . . B. dicit quod A. non tenet vel tenere debet boscum illum de eo . . . A. ponit se in magnam assisam utrum ipse jus majus habeat tenendi de eo boscum vel ipse in dominico. Et B. similiter.” Bracton’s Note Book, pl. 835, “A. queritur quod B., C., et D. vi et armis et contra pacem Dom. Regis fuerunt in piscaria ipsius A. . . . et E. (vocatus ad warrantiam) venit . . . et dicit . . . quod ipse debet piscari in eadem piscaria cum ipso A., et dicit quod antecessores sui ibi piscari solent et debent et piscati sunt scil. tempore Henrici Regis avi. . . . A. dicit quod predecessor suus fuit seisitus de piscaria illa que fuit separabile suum . . . E. ponit se in magnam assisam.”

[4 ]Bracton, f. 413.

[5 ]Placit. Abbrev. 142 (38 Hen. III.), “Et quia uterque dicit se esse in seisina de uno et eodem tenemento et non potest per hoc breve de jure tenementi inquiri.” Ibid., 162 (1 Ed. I.), “Et quia liberum tenementum non potest per hoc breve de transgressione terminari.”

[6 ]Placit. Abbrev. 346 (17 Ed. II.), “In hujusmodi brevi de transgressione secundum legem,” etc., “dampna tantum adjudicari et recuperari debeant.”

[1 ]The reason why Waste gets enclosed in this ecclesiastical group is obvious; the action of Waste is, or has lately been, an action on a prohibition.

[1 ]A. has complained that he is threatened by B. therefore “prefato A. de prefato B. firmam pacem nostram secundum consuetudinem Anglie habere facias, ita quod securus sis quod prefato A. de corpore suo per prefatum B.” etc. It is a writ directing the sheriff to take security of the peace.

[1 ]The occurrence of this word which may be a corruption of “avi” is not sufficient to make us doubt that in substance this Register belongs to Edward I.’s reign; though possibly a feeble attempt to “bring it up to date” may have been made at a later time.

[2 ]Walter of Merton seems here to get the credit which on older evidence belongs to William of Raleigh.

[3 ]Here again Merton seems to be obtaining undue fame at the expense of Raleigh.

[1 ]“Praecipe R. quod juste,” etc., “reddat H. unam virgatam terre . . . quam W. dedit M. et que post mortem ipsius M. ad prefatum H. descendere debet per formam donacionis quam prefatus W. inde fecit predicto M. ut dicit, et nisi fecerint,” etc. What I have seen in this and other Registers favors the belief that there was a Formedon in the Descender before the Statute de Donis. See Co. Lit. 19a; Challis, Real Property, 69.

[1 ]Reg. Brev. Orig. f. 12, 31, 58, 288, 289 b, 291, 308, show work of Henry VI.’s reign.

[1 ]Reg. Brev. Orig. f. 109 b, a writ against one who has “assumed” to erect a stone cross and has not done it.

[1 ]This essay was first printed in the Harvard Law Review, vol. VII, pp. 266-280 (1894), under the title “An Action at Law in the Time of Edward III.”

[2 ]Barrister at Law, and Editor of the Year-Books of the Reign of Edward III (Rolls Series). Oxford University, M. A., 1861.

Other Publications: A History of Crime in England, 1873-76, A Constitutional History of the House of Lords, 1894; The Public Records and the Constitution (Oxford Lecture, 1907); article “Crime” in the Encyclopedia Britannia, 9th ed., etc.

[1 ]Placita de Banco, Mich. 15 Edward III., Ro. 457 d.

[1 ]H. 16 E. 3, No. 3.

[2 ]Placita de Banco, Hil. 16 Edward III., R°. 64 and R°. 181.

[1 ]Y. B. M. 13 E. 3, No. 15.

[2 ]Mich. 13 Edward III. R°. 107 d.

[1 ]Rol. Parl., 124 b, as printed.

[1 ]2 Rol. Parl., 123, as printed.

[2 ]Placita coram Rege, Hilary, 15 Edward III. R°. 41.

[1 ]H. 14 E. 3, No. 38.

[1 ]T. 12 E. 3, p. 603.

[2 ]E. 12 E. 3, pp. 443-5.

[1 ]No. 2, p. 291.

[2 ]No. 24, p. 223.

[1 ]This essay was first published as Part II of an article entitled “The Year Books,” in the Law Quarterly Review, vol. XXII, pp. 360-382 (1906), and has been revised by the author for this Collection; it will form a part of the author’s History of English Law, vol. II, to appear in 1908.

[2 ]Lecturer in St. John’s College, Oxford. A biographical notice of this author is prefixed to Essay No. 9, in volume I of this Collection.

[1 ]P. & M. ii. 589, 590.

[1 ]Articuli ad Novas Narrationes (Tottel’s ed. 1561), ff. 77 b, 78: ‘Igitur in omni casu primo opus est videre ac intellegere casum. Casuque bene notato et intellecto, tunc impetrare breve iuxta casum, et deinde super breve bene narrare secundum naturam actionis in forma superius recitata. Quia ubi non habetur bonum et certum breve, quod est omnium actionum fundamentum et originale, impossibile est manutenere bonum placitum, neque facere narrationem congruam, iuxta naturam brevis super quo narraturus est.’

[2 ]xxii. L. Q. Rev. p. 371, n. 6.

[3 ]P. & M. ii. 590, 591.

[4 ]e. g. Y. B. 1, 2 Ed. II (S. S.), 19.

[5 ]3 Ed. I, c. 43; 6 Ed. I, st. 1, c. 10; Reeves, H. E. L. ii. 36, 37.

[6 ]1 Y. B. 19 Ed. III (R. S.), 12; as Mr. Pike says, Introd. xxvi, “We see the defendants after seven years of successful fourching, left fourching in infinitum.”

[1 ]e. g. Y. B. 2, 3 Ed. II (S. S.), 141; early Roman civil procedure seems to have recognized something like the view, Greenidge, Civil Procedure in Cicero’s Time, 55, 56.

[2 ]Reeves, H. E. L. ii. 632.

[3 ]e. g. Y. B. 12, 13 Ed. III (R. S.), 316—a case which shows that this was so even when there were several defendants, and the protection was cast for one only; Reeves, H. E. L. ii. 615.

[4 ]For a hard case of this kind, see Y. B. 1, 2 Ed. II (S. S.), 150.

[5 ]See e. g. Rot. Parl. iii. 594 (7, 8 Hy. IV, no. 112), justice was delayed because the judges were ‘en divers opinions et ambiguities’ owing to the fact that on the panel a juror’s name was Congrove, while in the writs of Habeas Corpus and Distringas he was called Gongrove.

[6 ]1 Y. B. 18, 19 Ed. III (R. S.), 152.

[7 ]Real Actions 115, and the case there cited; cp. ibid. 157 for similar remarks as to process upon the writ of Formedon.

[8 ]Reeves, H. E. L. ii. 93.

[1 ]P. & M. ii. 591-3; Reeves, H. E. L. i. 452-6.

[2 ]Holdsworth, H. E. L. i. 87-9, 105, 106.

[3 ]Y. B. 30, 31 Ed. I (R. S.), 258.

[4 ]Y. B. 36 Hy. VI, pl. 21 (pp. 25, 26): ‘Sir la Ley est come j’ay dit et ad este tout dits puis la Ley fuit commence, et nous avons plusors courses et forms qui sont tenus pour Ley, et ont este tenus et uses per cause de reason, nient obstant que modo le reson ne soit prest en memory.’

[1 ]‘The law servyth of nought ellys in these days,’ ran Cade’s proclamation in 1450, ‘but for to do wrong, for nothyng is sped almost but false maters by colour of the law for mede drede and favour.’—Three Fifteenth Century Chronicles (C. S.), 96.

[2 ]P. & M. ii. 605.

[3 ]P. & M. ii. 605-12.

[4 ]Pleading (5th ed.), 137, 138.

[1 ]P. & M. ii. 599-600; Thayer, Evidence, 9, 10; Holdsworth, H. E. L. i. 136, 137.

[1 ]See e. g. Bracton’s Note Book, case 1115.

[2 ]P. & M. ii. 663-5; cp. Holdsworth, H. E. L. i. 296 for a survival of this idea in the Channel Islands; for a similar idea in Roman Law, see Sohm, Institutes (tr. G. Ledlie), ed. 1892, 153. Greenidge, Legal Procedure in Cicero’s Time, 84, speaking of the civil law formulae, says: ‘Nor is it at all likely that these civil “formulae” were preceded by any ruling in law, by any promise of an action, or in fact by anything of the nature of an edict. For the praetor could not promise where he could not refuse, and the ruling was not his, but that of the ius civile. So far the praetor professes to be only an exponent of something beyond and behind him.’

[3 ]Holdsworth, H. E. L. i. 155, 156.

[4 ]For an analogy in Roman Law cp. Girard, 952: ‘Il (le magistrat) donne simplement par son concours une sorte d’authenticité indispensable aux actes des parties spécialement à ceux du demandeur . . . son rôle est un rôle d’assistant sinon purement passif au moins un à peu près mécanique’; Greenidge, Legal Procedure in Cicero’s Time, 84.

[1 ]See e. g. Y. B. 3 Ed. II (S. S.), 187.

[2 ]P. & M. ii. 627, 628.

[3 ]Y. B. 20, 21 Ed. I (R. S.), 280, Louther said arguendo, ‘Every word spoken in court is not to be taken literally; they are only paroles de la court’; 3 Ed. II (S. S.), 35, 167; Y. B. 17, 18 Ed. III (R. S.), 584, Shardelowe says, ‘Many matters are counted by way of form which are not traversable’; P. & M. ii. 606; cp. the gradual disuse of the formal words of the Legis Actio; Cicero, Pro. Mur. 11, 25 (cited Greenidge, Legal Procedure in Cicero’s Time, 163, n. 1), says: ‘Primum dignitas in tam tenui scientia non potest esse. Res enim sunt parvae, prope in singulis literis atque interpunctionibus verborum occupatae. Deinde, etiamsi quid apud maiores nostros fuit in isto studio admirationis, id enuntiatis vestris mysteriis totum est contemptum et abiectum.’

[4 ]P. & M. ii. 609.

[1 ]P. & M. ii. 623, 655, 656.

[2 ]Pleading, 29.

[1 ]See The King v. Cooke (1824) 2 B. & C. 871 for a curious survival of this reason for certainty in pleading.

[1 ]Y. B. 3 Ed. II (S. S.), lxxi, and 69.

[2 ]Cp. xxii L. Q. Rev. p. 284, n. 10; Y. B. 3 Ed. II (S. S.), 197, information seems to have been supplied to the reporter by the clerk.

[3 ]Y. B. 3 Ed. II (S. S.), 31-6, 97, 116-8.

[4 ]Ibid. 16.

[5 ]For some account of this, see Greenidge, Legal Procedure in Cicero’s Time, 179-81.

[1 ]Y. BB. 21, 22 Ed. I (R. S.), 148, 242; 33-5 Ed. I (R. S.), 476.

[2 ]Y. B. 36 Hy. VI, pl. 21, p. 26, Fortescue sums up the points of the case for the benefit of the apprentices, serjeants, and others of his company; Y. B. 3 Ed. II (S. S.), 36, Bereford C. J. says to Westcote, ‘Really I am much obliged to you for your challenge, and that for the sake of the young men here, and not for the sake of us who sit upon the bench. All the same you should answer over.’

[3 ]Y. B. 3 Ed. II (S. S.), lxvi-lxviii.

[1 ]Thayer, Evidence, 114, 115.

[2 ]Y. B. 2, 3 Ed. II (S. S.), 136, 137.

[3 ]Y. B. 18 Ed. III (R. S.), 152, Sharshalle J.: ‘For that matter I should hold him to be a foolish pleader if he pleaded to the demandant’s action within the liberty, but he would say that he ought not to answer there because the tenements are outside the liberty, and upon that he ought to abide judgment, whereupon, if judgment were rendered against him, he would have the Assize.’

[1 ]Y. B. 11, 12 Ed. III (R. S.), 88, Trewith, after some pleading, seeing that the Court was against the writ, demanded that it should abate. ‘You shall not get to that,’ said Parning; ‘you have pleaded higher, and thereby affirmed the writ as good.’ ‘I vouch the record of the roll,’ said Trewith, ‘that it was not of my own accord, but by the advice of the Court.’

[2 ]Y. B. 14 Ed. III (R. S.), 60, ‘Scrope was on the bench and said: “What you say as to two bastards you say well, but, in God’s name, you might have saved yourself against her by way of replication . . . and this replication must have been entered on the roll.” ’

[3 ]Y. B. 11, 12 Ed. III (R. S.), 42, Trewith, ‘Whatever thing a party may plead and pass over without regard of the Court and join issue on a plea, then nothing shall be recorded except the issue; for of that which was spoken and pleaded before and waived without award, nothing shall be entered on the roll’; Hillary J., ‘You say wrong’; Y. B. 3 Ed. II (S. S.), 129, Bereford C. J., ‘You did not demur there. So you cannot take advantage of that.’ Cp. Y. B. 19 Ed. III (R. S.), 332, a counsel is allowed to amend his count before exception has been taken to it.

[4 ]Y. B. 3 Ed. II (S. S.), 129, and Introd. lxvi, lxvii.

[5 ]H. E. L. ii. 223.

[1 ]Y. B. 3 Hy. VI, Pasch. pl. 10, Formedon against J and A his wife; the demandant counted against them on a gift in tail made by deed to the ancestor of the demandant. Paston by mistake said by virtue of which the donor was seised, whereas he should have said donee; the husband made default then and at the petite cape; the wife prayed to be received to defend her title, and relied on the faulty count. Paston offered to plead anew, and he and Martin argued that this could be done; Babington contra; Cokain agreed with Paston and Martin, putting the case of a protection and a resummons, ‘Mettons que apres le count le parol uste este mis sans jour per protection, et ore le demandant ust sue resummons envers le tenant, ne duist le demandant or count de novel? jeo dis que si pur ceo que parol serra my sans jour pur ceo fuit le premier count alle et determine: et en resommons il serra pris sicome nul count ust jamais, et sicome il n’est jamais eu nul auter breve devant eyant regard al count; Sic hic’; cp. Y. B. 5 Hy. VII, Trin. pl. 4—this shows how conceivably rules of process might be used to save the consequences of an otherwise fatal error.

[2 ]Thayer, Evidence, 125-9.

[3 ]Holdsworth, H. E. L. i. 155, n. 9.

[4 ]Y. B. 14 Ed. III (R. S.), 248.

[5 ]Y. B. 38 Hy. VI, Pasch. pl. 13.

[6 ]Y. B. 14, 15 Ed. III (R. S.), 346.

[1 ]See Longo Quinto, 58, cited Thayer, Evidence, 133, 134.

[2 ]For this doctrine, see Thayer, Evidence, 118, 119; Reeves, H. E. L. ii. 629-32. ‘Suppose,’ says Reeves, ‘A enfeoffed B of land, and an assize was brought by a stranger against B, B could not plead these facts simply, as such plea would amount only to the general issue; he would be obliged to plead the general issue, and the case would be left to the jury. He, therefore, by a wholly fictitious averment, gave the plaintiff colour, i. e. a prima facie cause of action. Thus, after pleading that A had enfeoffed him, he would further plead, “that the plaintiff claiming by colour of a deed of feoffement made by the said feoffor, before the feoffement made to the said tenant (by which deed no right passed) entered, upon whom the said tenant entered,” this left a point of law for the Court, i. e. the validity of the alleged first deed, and thus the case was withdrawn from the jury’; see Y. B. 3 Ed. II (S. S.), 156.

[3 ]This is explained by Eyre C. J., delivering the opinion of the judges to the House of Lords, in Gibson and Johnson v. Hunter (1793) Dougl. 187, at p. 206: ‘If the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence, and the precise operation of that demurrer is to take from the jury, and to refer to the judge, the application of the law of the fact.’

[1 ]Pleading, 27, 28.

[2 ]Early Law and Custom, 357.

[3 ]Holdsworth, H. E. L. i. 159, 160.

[1 ]Gilbert, Origins of the King’s Bench (ed. 1763), 315.

[2 ]H. E. L. ii. 398, 399.

[3 ]H. E. L. ii. 619-53; at p. 620, he says: ‘Almost everything substantial in pleading . . . was settled by judicial determination in the reigns of these kings.’

[4 ]Y. B. 39 Hy. VI, Mich. pl. 43.

[5 ]Longo Quinto, p. 22; for another case, see ibid. p. 23, and Y. B. 33 Hy. VI, Mich. pl. 40; for cases in which the clerks either ask or give advice in matters of process or pleading, cp. Y. BB. 11, 12 Ed. III (R. S.), 426, 434; 13, 14 Ed. III (R. S.), 258, 310; 14, 15 Ed. III (R. S.), 74—rule noted as contrary to the opinion of the clerks.

[6 ]Longo Quinto, 35.

[7 ]Y. B. 39 Hy. VI, Mich. pl. 32; Y. B. 2 Ed. IV, Mich. pl. 14.

[1 ]H. E. L. ii. 621, 622; cp. Y. B. 16 Ed. III (R. S.), i, 64: ‘And note that after the adjournment the roll was amended on the prayer of the tenant, when the demandant had gone with his day, because the justices recorded that the roll did not accord with the plea.’

[1 ]Cp. Y. B. 21 Ed. IV, Mich. pl. 4 (p. 43): ‘Lendemain le pleintif en breve d’Error vient in propre person et pleda ce plee en le forme ensuant “ye have here, &c.”—en Englois [then follows the Latin entry on the roll giving the effect of the plea], A auter jour Catesby monstra tout le plee que il ad plede n’est pas bon.’

[2 ]Y. B. 38 Hy. VI, Pasch. pl. 13.

[3 ]‘Pourquoi il ala a Comberford protonotary et pria que il voille faire a luy papier de ceo matter; que fait issint; et puis il vint ove le papier et la prist a Choke a le barre, et luy pria a getter ceo en le Court, et issint il fist per son commandement sans pleder ou sans voier que fuit deins le papier, et cest papier, demour ove Copley un auter protonotary pur ceo que il avoit l’entrie de le matter a devant.’

[1 ]‘Prisot dit a eux. N’aures unques worship per tiels matters, issint faux et suspecious, car ceo matter n’aura nul favour icy, ne nul tiel; et il n’ad este use cy a mettre eins tiels papiers quand le party ad Consail ove luy sans eux pleder al barre overtement; car si cest point serra suffre nous aurons plusors tiels papier en temps avenir, que viendra eins desous un cloak, et il puit estre dit suspecious matter que son Consail ne veut pleder. Purquoi il dit a eux, si voules pleder cest matter, pledez, ou autrement il servira pur rien. Et ils respondent qu’ils n’osent pleder, ne ils ne scavent unques de le matter, mais come il avait dit; et disoient qu’ils ne voillent pluis mesler ove ceo.’

[2 ]‘Quand le party fuit icy, et son presence record, et command a pleder, et il vient ove sa matter a son Consail et ils ne voillent pleder le matter pur le suspecion, que poit il donques faire, mes va al’ protonotary et fait un papier et le mist eins pur son excuse, n’ad il donques bien fait?’

[1 ]Y. B. 11, 12 Ed. III (R. S.), 66: ‘And because the plaintiff was a poor man, and the Court itself had spoken the declaration, the defendant was driven to answer.’

[2 ]Holdsworth, H. E. L. i. 160.

[3 ]Stavern v. Bouynton, Cal. i, xix, petition to the Chancellor for a subpoena to the witness, ‘for the cause that he shuld noght be haldyn parciall in the same matier’; cp. Select Cases in Chancery (S. S.), No. 126.

[4 ]5 Eliz. c. 9, § 6.

[1 ]De Republica, Bk. 2, c. 18.

[2 ]In the Praxis Utriusque Banci (ed. 1674), 28, an order of Prisot C. J. and the other judges of the C. B. of Trin. 35 Hy. VI is cited as to the fees of the prothonotaries; for every ‘comen declaracyon, comen Plee en barre, comen replycacyon, and comen rejoinder in Plees personel,’ whether the defendant appear in person or by attorney the sum is 13s. 4d.; for personal pleas pleaded by a serjeant 2s. Does this show that the prothonotaries drew ordinary common form pleadings at this date? Smith, Republic, Bk. 2, cc. 1 and 14, talks of the prothonotaries settling the pleadings.

[3 ]Bk. 2, c. 12, he tells us that the judges ‘heare the pleading of all matters which do come before them: and in civill matters where the pleading is for money, or land, or possession, part by writing, and part by declaration and altercation of the advocates the one with the other, it doth so procede before them till it do come to the issue which the Latines do call statum causae.’

[4 ]9 Co. Rep. 9 b.

[5 ]Dyer C. J. (Praxis, &c. 42), in his charge in 1567 to a jury of attorneys appointed to inquire into misdemeanours in his court, says that he had himself acted as such a clerk.

[6 ]Praxis, &c. 40, Orders of the Judges of the C. B. Mich., 15 Eliz. No. 10, to the effect that no prothonotary’s clerk who is an attorney is to draw up ‘any paper or book of the office’ wherein he is a clerk, in a case in which there is special pleading, and in which he is the attorney of the plaintiff or defendant, unless the other side consent. See Rot. Parl. iii. 306 (16 Rich. II, No. 28), for a complaint of abuses arising from this practice; ibid. 642 (11 Hy. IV, No. 63), a petition that no prothonotary or filacier of either bench shall be an attorney is declined; and cp. ibid. 666 (13 Hy. IV, No. 49).

[1 ]Praxis, &c. 113, Orders of Hill. 8, Car. I, separated the office of clerk to the prothonotaries and the attorney. The former were to draw the pleadings; the latter prosecuted and defended actions for clients. We may note that the clerks were to serve six years in the office, and belong to an Inn of Chancery. Did this lead to the rise of the separate class of special pleaders?

[2 ]Smith, Republic, Bk. 2, c. 18, assumes that the trial is distinct from the pleadings; in fact the trial as he describes it has all the modern incidents.

[3 ]Smith, ibid., Bk. 2, c. 1, puts into one class the judges, serjeants, and counsellors, in another the prothonotaries, the attorneys, and solicitors; Greenidge, Legal Procedure in Cicero’s Time, 148, tells us that at Rome the pleaders (advocati) tended to fall apart from the eloquent patroni.

[1 ]Holdsworth, H. E. L. i. 160, 161.

[2 ]Ibid. 165, 166.

[3 ]Black Books of Lincoln’s Inn, i. 315 (Order of 1556); Dugdale, Orig. Jurid. 310.

[4 ]Manning, Serviens ad Legem, 125; Y. B. 32, 33 Ed. I (R. S.), xxxii; P. & M. i. 190, 191; cp. Greenidge, Legal Procedure in Cicero’s Time, 146, for a somewhat analogous distinction between the cognitor and the patronus; when a litigant is represented by a cognitor he does not intervene at all; but the patronus does not represent him; if he is not himself present he is undefended; ‘the patronus cannot take his place; he is only an able interpreter, intervening for the purpose of illustrating the law and marshalling the proofs in his client’s interests.’

[1 ]See Y. B. 3 Ed. II (S. S.), lxviii. Professor Maitland says of the introduction of written pleadings that, ‘It forced our common law into a prison-house from which escape was difficult. Instead of being able to ascertain the opinion of the judges about the various questions of law that are involved in the case, the pleader, without any help from the Court, must stake his reputation and his client’s fortune upon a single form of words.’

[2 ]Life of Lord Keeper Guilford (Jessopp’s ed.), i. 27, 28: ‘Now the pleadings are all delated in paper, and so pass the offices, and the Court knows nothing of much the greater part of the business that passeth through it: and when causes which they call real come on and require counting and pleading at the bar, it is done for form and unintelligibly; and whatever the serjeant mumbles it is the paper book that is the text: and the Court as little meddles with as minds what is done of that sort at the bar; but the questions that arise are considered upon the paper book. All the rest of the business of the Court is wrangling about process and amendments, whereof the latter had been mostly prevented, if the Court (as formerly) had considered the first acts of the cause at the bar when offered by the serjeants.’

[1 ]See xxii L. B. Rev. p. 278.

[1 ]Ancient Law, 19, 20.

[1 ]These extracts are from a treatise of the same title, published in 1897 (Cincinnati: W. H. Anderson & Co.).

[2 ]Professor of law in the University of Indiana, since 1904. Davidson College, A. B. 1878, University of Virginia, LL. B. 1880; admitted to the Cincinnati Bar 1881; professor of law in the University of Cincinnati, 1897-1904.

Other Publications: Cases in Code Pleading, 1901.

[3 ]Cf. Burrill’s Law Dictionary, 2d ed., “Code.”

[1 ]The Civil Code (Code Napoleon), appeared in 1804; Code de Procédure Civile in 1806; Code de Commerce in 1807; Code d’Instruction Criminelle in 1808; Code Pénal in 1810.

[2 ]Cf. Bentham’s letter to President Madison, 1811; Bentham’s letter to the Governor of Pennsylvania, 1814; the latter’s message to the Pennsylvania legislature, 1816; Bentham’s communications to the governors of the several States, June, 1817; and his address to the citizens of the United States, July, 1817; see papers relative to Codification, 4 Bentham’s Works (Bowring ed., 1843), 451 et seq.

[3 ]With “code” came also “codify,” “codification,” etc. The latter are of Bentham’s extensive coinage.

[1 ]Then, as now, however, the word was ambiguous (cf. sec. 5, Hepburn’s Development of Code Pleading). Austin, for instance, points out that the term code, as signifying a body of law, “expressed in general formulæ arranged systematically, and complete, and the term codification, as meaning the reduction of an existing body of law into such a code, are not expressive.” . . . “We want,” said he, in 1832, “a term to denote a complete body of statute law being, or intended to be, the only positive law obtaining in the community.” (2 Austin’s Juris., 1061, 671.) But to express this idea, he could find no word so well suited as “code.”

[1 ]Maine, however, is sometimes included among the “code states” (So Dillon, Laws and Jurisprudence, 260n, and Phillips, Code Pleading, 166n, both quoting from Mr. David Dudley Field’s paper for the Columbian Exposition); but the published statutes of Maine fail to bear this out. It is rather a common law state with statutory modifications.

[2 ]It will be observed that Louisiana stands by itself in this classification; its system of pleading arises out of the civil law. The rules of civil pleading in Texas also had a different origin from the common law, but their statutory enactment has approximated the form of rules found in the “code states” generally.

[1 ]Such were the stock phrases, in use but yesterday. The introduction of Tyler’s Stephen on Pleading affords a good illustration. See also McFaul v. Ramsey, 20 How. (U. S.), 523, 525 (1857).

[1 ]Hale, Hist. Com. Law, 212, Runnington’s note.

[1 ]Cf. remarks of Pollock, in 3 Law Quar. Rev. 344 (1887).

[2 ]How clearly this little book struck the keynote of Bentham’s opposition to Blackstone, appears in the preface to the first edition. “If,” says Bentham, “it be of importance and of use to us to know the principles of the element we breathe, surely it is of not much less importance, nor of much less use, to comprehend these principles, and endeavor at the improvement of our laws, by which alone we breathe it in security. If to this endeavor we should fancy any author, especially any author of great name, to be, and as far as could in such case be expected, to avow himself, a determined and persevering enemy, what should we say of him? We should say that the interests of reformation, and through them the welfare of mankind were inseparably connected with the downfall of his works: of a great part, at least, of the esteem and influence which these works might, under whatever title, have acquired. Such an enemy it has been my misfortune (and not mine only) to see, or fancy at least, I saw, in the author of the celebrated Commentaries on the Laws of England: an author whose works have had, beyond comparison, a more extensive circulation, have obtained a greater share of esteem, of applause, and consequently of influence (and that by a title on many grounds so indisputable) than any other writer who on that subject has ever yet appeared. It is on this account that I conceived, some time since, the design of pointing out some of what appeared to me the capital blemishes of that work, particularly this grand and fundamental one, the antipathy to reformation.”

[1 ]It is a curious coincidence that the year of Bentham’s death is the year of the flood tide of the movement towards common law reform in England.

[2 ]See the note in Dillon’s Laws and Jurisprudence, 337.

[1 ]Maine, Early Hist. Institutions, 397. “If the analytical jurists [Bentham and his school] failed to see a great deal which can only be explained by the help of history, they saw a great deal which, even in our day, is imperfectly seen by those who, so to speak, let themselves drift with history.” Ib.

[2 ]Hepburn, Development of Code Pleading, sec. 76.

[1 ]7 Am. Jurist, 80.

[1 ]They were framed by the judges in pursuance of the statute of 3 & 4 Wm. IV., c. 24—an elaborate act which is as remarkable for its latitude in some questions as for its restrictions in others.

[1 ]Act of April 10, 1805. In many respects this code anticipated the codes of half a century later. “Under it, all suits were commenced by petition, addressed to the court and filed with the clerk, stating the names and residence of the parties, the cause of action, with places and dates, without prolixity, scandal, or impertinence, and concluding with a prayer for relief. The defendant was brought into court by citation, issued by the clerk, and served by the sheriff. On proof of service, and of failure to answer, judgment was entered in favor of the plaintiff. The defendant appearing and answering, either party could demand a jury.” Hunt, Life of Livingston, 117.

[2 ]Act of February 10, 1821.

[1 ]“You have done more in giving precision, specification, accuracy, and moderation to the system of crimes and punishments than any other legislator of the age, and your name will go down to posterity with distinguished honors.” Chancellor Kent to Livingston, in February, 1826. Hunt, Life of Livingston, 281.

[2 ]See 11 Bentham Works (Bowring ed.) 23, 51; Hunt, Life of Livingston, 96n.

[3 ]Cf. remarks of David Dudley Field, 25 Am. Law. Rev. 515, 519 (1891).

[1 ]Art. XIV., § 5, Art. VI, § 3, N. Y. Const. of 1846.

[2 ]N. Y. Const. of 1846, Art. VI, § 27.

[3 ]N. Y. Const. 1846, Art. I, § 17.

[4 ]Act of April 8, 1847, N. Y. Laws, ch. 59, § 8.

[1 ]Act of April 8, 1847, N. Y. Laws, ch. 59, § 8.

[2 ]“Whenever any considerable amelioration has been obtained, either in the form or in the substance of the law, in procedure or in doctrine, it has come from a minority of lawyers supported by the voices of laymen. I do not complain of this. It is the nature of the profession. The lawyer becomes wedded to old things by the course of his daily avocations. He reposes upon the past. He is concerned with what is, not with what should be. The rights he defends are old rights, grounded, it may be, in the ages that have gone before him. Nor is this conservative tendency altogether to be regretted. Rooted in the past, and covered with the branches of many generations, the legal profession may be said to stand like the oak as a barrier and shelter in many an angry storm, though it may at the same time dwarf the growth beneath. With its innumerable traditions and its sentiments of honor, it is one of the strong counteracting forces of civilization, and we should hold fast to it, with all its good and in spite of its evil, though we may have occasion to combat and overcome its resistance to reforms as often as new wants and altered circumstances make them necessary.” David Dudley Field, 1 Jurid. Rev. 18, 20 (1889).

[1 ]New York Laws, 1848, ch. 371, Act of April 12.

[1 ]Hepburn’s Development of Code Pleading, § 66.

[2 ]Which state, however, presently receded from this advanced position.

[1 ]Note his suggestion, that every code should contain a “perpetual provision for its amendment.” Juris. 697. Cf. Gibson, J., in Pennock v. Hart, 8 S. & R. (Penn.), 368, 378 (1822). Cf. Provision under English Code for alteration without resort to the legislature.

[2 ]The original code, that of 1848, remained in force until May 1, 1849, when it was reënacted with a host of amendments and supplements (N. Y. Laws, 1849, ch. 438, Act of April 11), the new act running to four hundred and seventy-three sections. In a little over two years this amended code was greatly changed by the amendatory act of July 10, 1851 (N. Y. Laws, 1851, ch. 479). Presently the latter act was itself amended in a large number of its sections (N. Y. Laws, 1852, ch. 392, Act of April 16). Other amendments followed, but in less volume, until the “revision” referred to in the text.

[1 ]Up to this point the history of the New York code is significant as being that of many codes, and not of the New York code alone; but from this on the story is rather a prophecy of what may happen in other codes if the noble art of statutory revision goes mad.

[2 ]N. Y. Laws, 1870, ch. 33, p. 100.

[3 ]N. Y. Laws, 1876, chs. 448, 449; N. Y. Laws, 1877, ch. 416, § 1. The term “Civil Code” may also be used; cf. Laws of 1892, p. 1491, Statutory Construction Law.

[1 ]“When we get into court on a motion to vacate an attachment, or an order of arrest, or an order for an examination before trial, five out of six of the orders we obtain are set aside because they do not state something that the code says they should state—for instance, we have failed to put in the address of the attorneys. All this is procedure run mad.” Wm. B. Hornblower, 53 Alb. Law Journ., 152 (1896).

[2 ]See remarks of Irving Browne, 3 Green Bag, 51 (1891).

[3 ]N. Y. Laws, 1880, ch. 178. Another chapter was added in 1890.

[4 ]Cf. 53 Alb. Law Journ., 151 (1896).

[1 ]N. Y. Laws, 1895, ch. 1036, Act of June 15.

[2 ]For the report in detail see 52 Alb. Law Journal, 390, 408, (1895); 53 Ib. 6 (1896).

[1 ]Cf. Article in 54 Alb. Law Journ., 202 (1896).

[2 ]As to which see infra.

[1 ]54 Alb. L. J., 193.

[2 ]In 53 Alb. Law Journ., 151 (1896).

[1 ]N. Y. Laws, 1857, ch. 266, Act of April 6.

[2 ]N. Y. Laws, 1881, ch. 676, Act of July 26. Cf. ch. 680. The same session of the legislature established, after a delay of thirty-one years, the New York Code of Criminal Procedure, reported by the first Commission on Practice and Pleadings; see N. Y. Act of June 14, 1881, ch. 504.

[3 ]This first operating civil code in America would make an octavo volume of some three hundred and eighty pages, including its short schedule of forms for deeds to land, bills of lading, etc. It numbers two thousand and thirty-four sections. It went into effect from the date of its approval, January 12, 1866. The Penal Code, an act of seven hundred and eighty-eight sections, went into effect a year earlier.

[1 ]The official designations of these codes and the order of their enactment are as follows: “The Penal Code of California,” Feb. 14, 1872, numbering with the amendments of the next year 1,614 sections; “The Code of Civil Procedure of California,” March 11, 1872, numbering 2,104 sections; “The Political Code of the State of California,” March 12, 1872, numbering 4,460 sections; “The Civil Co