The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• De Lolme’s Life and Early Writings
• The Constitution of England
• Later Writings
• Editions of the Constitution of England
• A Note On the Text
• Acknowledgments
• The Constitution of England
• To the King.
• Book I
• Chapter I: Causes of the Liberty of the English Nation.—reasons of the Difference Between the Government of England, and That of France.—in England, the Great Power of the Crown, Under the Norman Kings, Created an Union Between the Nobility and the People
• Chapter II: A Second Advantage England Had Over France:—it Formed One Undivided State.
• Chapter III: The Subject Continued.
• Chapter IV: Of the Legislative Power.
• Chapter V: Of the Executive Power.
• Chapter VI: The Boundaries Which the Constitution Has Set to the Royal Prerogative.
• Chapter VII: The Same Subject Continued.
• Chapter VIII: New Restrictions.
• Chapter IX: Of Private Liberty, Or the Liberty of Individuals.
• Chapter X 1: On the Law In Regard to Civil Matters, That Is Observed In England.
• Chapter Xi 1: The Subject Continued. the Courts of Equity.
• Chapter XII: Of Criminal Justice.
• Chapter XIII: The Subject Continued.
• Chapter XIV: The Subject Concluded.—laws Relative to Imprisonment.
• Book Ii
• Chapter I: Some Advantages Peculiar to the English Constitution. 1. The Unity of the Executive Power.
• Chapter II: The Subject Concluded.—the Executive Power Is More Easily Confined When It Is One.
• Chapter III: A Second Peculiarity.—the Division of the Legislative Power.
• Chapter IV: A Third Advantage Peculiar to the English Government. the Business of Proposing Laws, Lodged In the Hands of the People.
• Chapter V: In Which an Inquiry Is Made, Whether It Would Be an Advantage to Public Liberty, That the Laws Should Be Enacted By the Votes of the People At Large.
• Chapter VI: Advantages That Accrue to the People From Appointing Representatives.
• Chapter VII: The Subject Continued—the Advantages That Accrue to the People From Their Appointing Representatives, Are Very Inconsiderable, Unless They Also Entirely Trust Their Legislative Authority to Them.
• Chapter VIII: The Subject Concluded.—effects That Have Resulted, In the English Government, From the People’s Power Being Completely Delegated to Their Representatives.
• Chapter IX: A Farther Disadvantage of Republican Governments.—the People Are Necessarily Betrayed By Those In Whom They Trust.
• Chapter X: Fundamental Difference Between the English Government, and the Governments Just Described.—in England All Executive Authority Is Placed Out of the Hands of Those In Whom the People Trust. Usefulness of the Power of the Crown.
• Chapter XI: The Powers Which the People Themselves Exercise.—the Election of Members of Parliament.
• Chapter XII: The Subject Continued.—liberty of the Press.
• Chapter XIII: The Subject Continued.
• Chapter XIV: Right of Resistance.
• Chapter Xv 1: Proofs Drawn From Facts, of the Truth of the Principles Laid Down In the Present Work.—1. the Peculiar Manner In Which Revolutions Have Always Been Concluded In England.
• Chapter Xvi 1: Second Difference—the Manner After Which the Laws For the Liberty of the Subject Are Executed In England.
• Chapter Xvii 1: A More Inward View of the English Government Than Has Hitherto Been Offered to the Reader In the Course of This Work.—very Essential Differences Between the English Monarchy, As a Monarchy, and All Those With Which We Are Acquainted.
• Chapter XVIII: How Far the Examples of Nations Who Have Lost Their Liberty, Are Applicable to England.
• Chapter Xix 1: A Few Additional Thoughts On the Attempts That At Particular Times May Be Made to Abridge the Power of the Crown, and On Some of the Dangers By Which Such Attempts May Be Attended.
• Chapter Xx 1: A Few Additional Observations On the Right of Taxation Which Is Lodged In the Hands of the Representatives of the People. What Kind of Danger This Right May Be Exposed To.
• Chapter XXI: Conclusion.—a Few Words On the Nature of the Divisions That Take Place In England.
• Guide to Further Reading
• Bibliography
• De Lolme’s Principal Publications
• Works Cited By De Lolme
• Classical Sources
• Modern Sources

CHAPTER X1

On the Law in regard to Civil matters, that is observed in England.

Concerning the manner in which Justice is administered, in civil matters, in England, and the kind of law that obtains in that respect, the following observations may be made.

In the first place, it is to be observed, that the beginning of a civil process in England, and the first step usually taken in bringing an action, is the seizing by public authority the person against whom that action is brought. This is done with a view to secure such person’s appearance before a Judge, or at least make him give sureties for that purpose. In most of the Countries of Europe, where the forms introduced in the Roman Civil Law, in the reigns of the latter Emperors, have been imitated, a different method has been adopted to procure a man’s appearance before a Court of Justice. The usual practice is to have the person sued, summoned to appear before the Court, by a public officer belonging to it, a week before-hand: if no regard is paid to such summons twice repeated, the Plaintiff, or his Attorney, is admitted to make before the Court a formal reading of his demand, which is then granted him, and he may proceed to execution (a) .

In this mode of proceeding, it is taken for granted, that a person who declines to appear before a Judge, to answer the demand of another, after being properly summoned, acknowledges the justice of such demand; and this supposition is very just and rational. However, the above mentioned practice of securing before-hand the body of a person sued, though not so mild in its execution as that just now described, nor even more effectual, appears more obvious, and is more readily adopted, in those times when Courts of Law begin to be formed in a Nation, and rules of distributive justice to be established; and it is, very likely, followed in England as a continuation of the methods that were adopted when the English laws were as yet in their infancy.

In the times we mention, when laws begin to be formed in a Country, the administration of justice between individuals is commonly lodged in the same hands which are intrusted with the public and military authority in the State. Judges invested with a power of this kind, like to carry on their operations with a high hand: they consider the refusal of a Man to appear before them, not as being barely an expedient to avoid doing that which is just, but as a contempt of their authority: they of course look upon themselves as being bound to vindicate it; and a writ of Capias is speedily issued to apprehend the refractory Defendant. A preliminary Writ, or order, of this kind, becomes in time to be used of course, and as the first regular step of a law-suit; and thus, it is likely enough, has it happened that in the English Courts of law, if I am rightly informed, a Writ of Capias is either issued before the original Writ itself (which contains the summons of the plaintiff, and a formal delineation of his case), or is joined to such Writ, by means of an ac etiam capias, and is served along with it.2 It may be remembered that, in England, the Aula Regis, at the head of which the King himself presided, was originally the common Court of Justice for the whole Kingdom, in civil as well as criminal matters, and continued so till the Court of Common-pleas was in time separated from it.

In Rome, where the distribution of civil Justice was at first lodged in the hands of the Kings, and afterwards of the Consuls, the method of seizing the person of a Man against whom a demand of any kind was preferred, previously to any judgment being passed against him, was likewise adopted, and continued to be followed after the institution of the Praetor’s Court, to whom the civil branch of the power of the Consuls was afterwards delegated; and it lasted till very late times; that is, till the times when those capital alterations were made in the Roman civil Law, during the reigns of the latter Emperors, which gave it the form it now has in those Codes or collections of which we are in possession.

A very singular degree of violence even took place in Rome, in the method used to secure the persons of those against whom a legal demand was preferred. In England, the way to seize upon the person of a Man under such circumstances, is by means of a public Officer, supplied with a Writ or order for that purpose, supposed to be directed to him (or to the Sheriff his employer) from the King himself. But in Rome, every one became a kind of public officer in his own cause, to assert the Praetor’s prerogative; and, without any ostensible legal licence or badge of public authority, had a right to seize by force the person of his opponent, wherever he met him. The practice was, that the Plaintiff (Actor) first summoned the person sued (Reum) with a loud voice, to follow him before the Court of the Praetor (a) . When the Defendant refused to obey such summons, the Plaintiff, by means of the words licet antestari,3 requested the by-standers to be witnesses of the fact, as a remembrance of which he touched the ears of each of them; and then proceeded to seize the person of his opponent, by throwing his arms round his neck (obtorto collo), thus endeavouring to drag him before the Praetor. When the person sued was, through age or sickness, disabled from following the Plaintiff, the latter was directed by the law of the Twelve Tables to supply him with a horse (jumentum dato).

The above method of proceeding was however in after-times mitigated, though very late and slowly. In the first place, it became unlawful to seize a man in his own house, as it was the abode of his domestic Gods. Women of good family (Matronae) were in time protected from the severity of the above custom, and they could no longer be dragged by force before the Tribunal of the Praetor. The method of placing a sick or aged person by force upon a horse, seems to have been abolished during the latter times of the Republic. Emancipated Sons, and freed Slaves, were afterwards restrained from summoning their Parents, or late Masters, without having expressly obtained the Praetor’s leave, under the penalty of fifty pieces of gold. However, so late as the time of Pliny, the old mode of summoning, or carrying by force, before a Judge, continued in general to subsist; though, in the time of Ulpian, the necessity of expressly obtaining the Praetor’s leave was extended to all cases and persons; and in Constantine’s reign, the method began to be established of having legal summonses served only by means of a public Officer appointed for that purpose.4 After that time, other changes in the former law were introduced, from which the mode of proceeding now used on the Continent of Europe, has been borrowed.

In England likewise, some changes we may observe, have been wrought in the law and practice concerning the arrests of sued persons, though as slowly and late as those effected in the Roman Republic or Empire, if not more so; which evinces the great impediments of various kinds that obstruct the improvement of laws in every Nation. So late as the reign of king George the First, an Act was passed to prohibit the practice of previous personal Arrest, in cases of demands under two pounds sterling;5 and since that time, those Courts, justly called of Conscience, have been established, in which such demands are to be summarily decided, and simple summonses, without arrest, can only be used.6 And lately, another Bill has been passed on the motion of Lord Beauchamp, whose name deserves to be recorded, by which the like prohibition of arrest is extended to all cases of debt under ten pounds sterling: a Bill the passing of which was of twenty, or even a hundred times, more real importance than the rise or fall of a favourite or a Minister, though it has perhaps been honoured with a less degree of attention by the Public.7

Another peculiarity in the English Civil Law, is the great refinements, formalities, and strictness that prevail in it. Concerning such refinements, which are rather imperfections, the same observation may be made that has been introduced above in regard to the mode and frequency of civil arrest in England; which is, that they are continuations of methods adopted when the English Law began to be formed, and are the consequences of the situation in which the English placed themselves when they rejected the ready made Code of the Roman civil Law, compiled by order of Justinian, which most Nations of Europe have admitted, and rather chose to become their own Lawmakers, and raise from the ground the structure of their own national civil Code; which Code, it may be observed, is as yet in the first stage of its formation, as the Roman Law itself was during the times of the Republic, and in the reigns of the first Emperors.

The time at which the power of administering justice to individuals, becomes separated from the military power (an event which happens sooner or later in different Countries) is the real aera of the origin of a regular system of laws in a Nation. Judges being now deprived of the power of the sword, or, which amounts to the same, being obliged to borrow that power from other persons, endeavour to find their resources within their own Courts, and, if possible, to obtain submission to their decrees from the great regularity of their proceedings, and the reputation of the impartiality of their decisions.

At the same time also, Lawyers begin to croud in numbers to Courts which it is no longer dangerous to approach, and add their refinements to the rules already set down either by the Legislature or the Judges. As the employing of them is, especially in the beginning, matter of choice, and they fear, that, if bare common sense were thought sufficient to conduct a law-suit, every body might imagine he knows as much as they do, they contrive difficulties to make their assistance needful. As the true science of the Law, which is no other than the knowledge of a long series of former rules and precedents, cannot as yet exist, they endeavour to create an artificial one to recommend themselves by. Formal distinctions and definitions are invented to express the different kinds of claims Men may set up against one another; in which almost the same nicety is displayed as that used by Philosophers in classing the different subjects, or kingdoms, of natural History. Settled forms of words, under the name of Writs, or such like, are devised to set those claims forth; and, like introductory passes, serve to usher Claimants into the Temple of Justice. For fear their Clients should desert them after their first introduction, like a sick man who rests contented with a single visit of the Physician, Lawyers contrive other ceremonies and technical forms for the farther conduct of the process and the pleadings; and in order still more safely to bind their Clients to their dominion, they at length obtain to make every error relating to their professional regulations, whether it be a misnomer, a mispleading, or such like transgression, to be of as fatal a consequence as a failure against the laws of strict Justice. Upon the foundation of the above mentioned definitions and metaphysical distinctions of cases and actions, a number of strict rules of law are moreover raised, with which none can be acquainted but such as are complete masters of those distinctions and definitions.

To a person who in a posterior age observes for the first time such refinements in the distribution of Justice, they appear very strange, and even ridiculous. Yet, it must be confessed, that during the times of the first institution of Magistracies and Courts of a civil nature, ceremonies and formalities of different kinds, are very useful to procure to such Courts, both the confidence of those persons who are brought before them, and the respect of the Public at large; and they thereby become actual substitutes for military force, which, till then, had been the chief support of Judges. Those same forms and professional regulations are moreover useful to give uniformity to the proceedings of the Lawyers and of the Courts of Law, and to insure constancy and steadiness to the rules they set down among themselves. And if the whole system of the refinements we mention continues to subsist in very remote ages, it is in a great measure owing (not to mention other causes) to their having so coalesced with the essential parts of the Law as to make danger, or at least great difficulties, to be apprehended from a separation; and they may, in that respect, be compared with a scaffolding used in the raising of a house, which, though only intended to set the materials and support the builders, happens to be suffered for a long time afterwards to stand, because it is thought the removing of it might endanger the building.

Very singular law formalities and refined practices of the kind here alluded to, had been contrived by the first Jurisconsults in Rome, with a view to amplify the rules set down in the Laws of the Twelve Tables; which being but few, and engraved on brass, every body could know as well as they: it even was a general custom to give those laws to children to learn, as we are informed by Cicero.8

Very accurate definitions, as well as distinct branches of cases and actions, were contrived by the first Roman Jurisconsults; and when a Man had once made his election of that peculiar kind of action he chose to pursue his claim by, it became out of his power to alter it. Settled forms of words, called Actiones legis,9 were moreover contrived, which Men must absolutely use to set forth their demands. The party himself was to recite the appointed words before the Praetor; and should he unfortunately happen to miss or add a single word, so as to seem to alter his real case or demand, he lost his suit thereby. To this an allusion is made by Cicero, when he says, “We have a civil law so constituted, that a Man becomes non-suited, who has not proceeded in the manner he should have done” (a) . An observation of the like nature is also to be found in Quintilian, whose expressions on the subject are as follow: “There is besides another danger; for if but one word has been mistaken, we are to be considered as having failed in every point of our suit” (a) . Similar solemnities and appropriated forms of words were moreover necessary to introduce the reciprocal answers and replies of the Parties, to require and accept sureties, to produce witnesses, &c.

Of the above Actiones legis, the Roman Jurisconsults and Pontiffs had carefully kept the exclusive knowledge to themselves, as well as of those Days on which religion did not allow Courts of Law to sit (b) . One Cn. Flavius, secretary to Appius Claudius, having happened to divulge the secret of those momentous forms (an act for which he was afterwards preferred by the People), Jurisconsults contrived fresh ones, which they began to keep written with secret cyphers; but a Member of their own Body again betrayed them, and the new Collection which he published, was called IusAelianum, from his name, Sex. Aelius, in the same manner as the former collection had been called, Ius Flavianum.10 However, it does not seem that the influence of Lawyers became much abridged by those two Collections: besides written information of that sort, practice is also necessary; and the public Collections we mention, like the many books that have been published on the English law, could hardly enable a Man to become a Lawyer, at least sufficiently so as to conduct a law suit (c) .

Modern Civilians have been at uncommon pains to find out and produce the ancient law formulae we mention; in which they really have had surprising success. Old Comic Writers, such as Plautus and Terence, have supplied them with several; the settled words, for instance, used to claim the property of a Slave, frequently occur in their Works (a) .

Extremely like the above Actiones legis are the Writs used in the English Courts of law. Those Writs are framed for, and adapted to, every branch or denomination of actions, such as detinue, trespass, action upon the case, accompt and covenant, &c. The same strictness obtains in regard to them as did in regard to the Roman law formulae above mentioned:11 there is the same danger in misapplying them, or in failing in any part of them; and to use the words of an English Law-writer on the subject, “Writs must be rightly directed, or they will be nought . . . In all writs, care must be had that they be laid and formed according to their case, and so pursued in the process thereof” (a) .

The same formality likewise prevails in the English pleadings and conduct of the process, as obtained in the old Roman law proceedings; and in the same manner as the Roman Jurisconsults had their Actionis postulationes & editiones, their inficiationes, exceptiones, sponsiones, replicationes, duplicationes, &c. so the English Lawyers have their counts, bars, re-plications, rejoinders, sur-rejoinders, rebutters, sur-rebutters, &c.12 A scrupulous accuracy in observing certain rules, is moreover necessary in the management of those pleadings: the following are the words of an English Law-writer on the subject: “Though the art and dexterity of pleading, was in its nature and design only to render the fact plain and intelligible, and to bring the matter to judgment with convenient certainty, it began to degenerate from its primitive simplicity. Pleaders, yea and Judges, having become too curious in that respect, pleadings at length ended in a piece of nicety and curiosity, by which the miscarriage of many a cause, upon small trivial objections, has been occasioned” (a) .

There is however a difference between the Roman Actiones legis, and the English Writs; which is, that the former might be framed when new ones were necessary, by the Praetor or Judge of the Court, or, in some cases, by the body of the Jurisconsults themselves,—whereas Writs, when wanted for such new cases as may offer, can only be devised by a distinct Judge or Court, exclusively invested with such power, viz. the High Court of Chancery. The issuing of Writs already existing, for the different cases to which they belong, is also ex-presly reserved to this Court; and so important has its office on those two points been deemed by Lawyers, that it has been called, by way of eminence, the Manufactory of Justice, (Officina Justitiae). Original Writs besides, when once framed, are not at any time to be altered, except by Parliamentary authority (b) .

Of so much weight in the English law, are the original delineations of cases we mention, that no cause is suffered to be proceeded upon, unless they first appear as legal introductors to it. However important or interesting the case, the Judge, till he sees the Writ he is used to, or at least a Writ issued from the right Manufactory, is both deaf and dumb. He is without eyes to see, or ears to hear. And, when a case of a new kind offers, for which there is as yet no Writ in being, should the Lord Chancellor and Masters in Chancery disagree in creating one, or prove unequal to the arduous task, the Great National Council, that is Parliament themselves, are in such emergency expresly applied to: by means of their collected wisdom, the right mystical words are brought together: the Judge is restored to the free use of his organs of hearing and of speech; and, by the creation of a new Writ, a new province is added to the Empire of the Courts of Law.

In fine, those precious Writs, those valuable Briefs (Brevia) as they are also called by way of eminence, which are the elixir and quintessence of the Law, have been committed to the special care of Officers appointed for that purpose, whose offices derive their names from those peculiar instruments they respectively use for the preservation of the deposit with which they are intrusted; the one being called the office of the Hamper, and the other, of the Small bag(a) .

To say the truth, however, the creating of a new Writ, upon any new given case, is mat-ter of more difficulty than the generality of Readers are aware of. The very importance which is thought to be in those professional forms of words, renders them really important. As every thing without them is illegal in a Court of Common Law, so with them every thing becomes legal, that is to say, they empower the Court legally to determine upon every kind of suit to which they are made to serve as introductors. The creating of a new Writ, therefore, amounts in its consequences to the framing of a new law, and a law of a general nature too: now, the creating of such a law, on the first appearance of a new case, which law is afterwards to be applied to all such cases as may be similar to the first, is really matter of difficulty; especially, when men are as yet in the dark as to the best kind of provision to be made for the case in question, or even when it is not perhaps yet known whether it be proper to make any provision at all. The framing of a new Writ under such circumstances, is a measure on which Lawyers or Judges will not very willingly either venture of themselves, or apply to the Legislature for that purpose.

Owing to the above mentioned real difficulty in creating new Writs on the one hand, and to the absolute necessity of such Writs in the Courts of Common Law on the other, many new species of claims and cases (the arising of which is from time to time the unavoidable consequences of the progress of trade and civilization) are left unprovided for, and remain like so many vacant spaces in the Law, or rather, like so many inaccessible spots, which the laws in being cannot reach: now, this is a great imperfection in the distribution of Justice, which should be open to every individual, and provide remedies for every kind of claim which Men may set up against one another.

To remedy the above inconvenience, or rather in some degree to palliate it, law fictions have been resorted to, in the English law, by which Writs, being warped from their actual meaning, are made to extend to cases to which they in no shape belong.

Law fictions of the kind we mention were not unknown to the old Roman Jurisconsults; and as an instance of their ingenuity in that respect, may be mentioned that kind of action, in which a Daughter was called a Son (a) . Several in-stances might also be quoted of the fictitious use of Writs in the English Courts of Common Law. A very remarkable expedient of that sort occurs in the method generally used to sue for the payment of certain kinds of debt, before the Court of Common Pleas, such, if I am not mistaken, as a salary for work done, indemnity for fulfilling orders received, &c. The Writ issued in those cases, is grounded on the supposition, that the person sued has trespassed on the ground of the Plaintiff, and broken by force of arms through his fences and inclosures; and under this predicament the Defendant is brought before the Court: this Writ, which has been that which Lawyers have found of most convenient use, to introduce before a Court of Common Law the kinds of claim we mention, is called in technical language a Clausum fregit.13 —In order to bring a person before the Court of King’s Bench, to answer demands of much the same nature with those above, a Writ, called a Latitat,14 is issued, in which it is taken for granted that the Defendant insidiously conceals himself, and is lurking in some County, different from that in which the Court is sitting; the expressions used in the Writ being, that “he runs up and down and secretes himself”; though no such fact is seriously meant to be advanced either by the Attorney or the Party.

The same principle of strict adherence to certain forms long since established, has also caused Lawyers to introduce into their proceedings, fictitious names of persons who are supposed to discharge the office of sureties; and in certain cases, it seems, the name of a fictitious person is introduced in a Writ along with that of the principal Defendant, as being joined in a common cause with him. Another instance of the same high regard of Lawyers, and Judges too, for certain old forms, which makes them more unwilling to depart from such forms than from the truth itself of facts, occurs in the above mentioned expedient used to bring ordinary causes before the Court of Exchequer, in order to be tried there at Common Law; which is, by making a declaration that the Plaintiff is a King’s debtor, though neither the Court, nor the Plaintiff’s Attorney, lay any serious stress on the assertion (a) .

[1. ]This chapter first appeared in the 1781 edition.

[(a) ]A person against whom a judgment of this kind has been passed (which they call in France un jugement par défaut) [[“a judgment by default” may easily obtain relief: but as he now in his turn becomes in a manner the Plaintiff, his deserting the cause, in this second stage of it, would leave him without remedy.

[2. ]Capias was a judicial writ that authorized the arrest of the defendant. It differed from “the original Writ” in not specifying the alleged injury that formed the subject matter of the suit.

[(a) ]Ad Tribunal sequere, in Ius ambula. [[“Follow to the judgment-seat, walk into court.”

[3. ]“Are you willing to witness the arrest?”

[4. ]De Lolme here reports on several centuries of legal development, from the time of Pliny the Younger (62–113), through the period of Ulpian’s service as Praetorian prefect (222–28), and to the reign of Constantine I (306–37).

[5. ]De Lolme refers to a statute of 1725 titled “An act to prevent frivolous and vexatious arrests.” The legislation prevented arrest for debts of less than 20 shillings in value.

[6. ]Courts of conscience (or courts of request) were created by statute for the recovery of small debts.

[7. ]De Lolme refers to the 1779 Insolvent Debtors Act. Lord Beauchamp, who sponsored the legislation in the House of Commons, was Francis Ingram Seymour Conway (1743–1822), eldest son of the Earl of Hertford.

[8. ]The Twelve Tables, dating from the mid-fifth century b.c.e., were the first published materials of ancient Roman law. Cicero’s comments appeared in Marcus Tullius Cicero, De legibus, book 2, chapter 23 (title 59).

[9. ]“Processes of law.”

[(a) ]Ita Ius civile habemus constitutum, ut causâ cadat is qui non quemadmodum oportet egerit. De Invent II. 19. [[De Lolme translates and cites Marcus Tullius Cicero, De inventione, book 2, chapter 19.

[(a) ]Est etiam periculosum, quum si uno verbo sit erratum, totâ causâ cecidisse videamur. Inst. Orat. III. 8. VII. 3. [[“For it is a most dangerous practice, since, if we make a mistake in a single word, we are likely to lose our whole case.” Quintilian (Marcus Fabius Quintilianus), Institutio oratoria, 8.3.17.

[(b) ]Dies Fasti & Nefasti. [[“Dies fasti” were the days on which the praetor administered justice; “dies nefasti” were the days on which it was unlawful for the praetor to act.

[10. ]Several Latin authors, including Livy and Pliny, relate how Cneius Flavius achieved fame and high office by revealing to the community legal procedures and requirements that previously were known only by the Roman patricians and jurists. The disclosed material became known as the Ius Flavium (ca. 304 b.c.e.). The Ius Aelianum (ca. 198 b.c.e.), named for Sextus Aelius Catus, likewise was based on the unauthorized disclosure of previously secret legal materials.

[(c) ]The Roman Jurisconsults had extended their skill to objects of voluntary jurisdiction as well as to those of contentious jurisdiction, and had devised peculiar formalities, forms of words, distinctions, and definitions, in regard to the contracting of obligations between Man and Man, in regard to stipulations, donations, spousals, and especially last wills, in regard to all these things they had displayed surprising nicety, refinement, accuracy, and strictness. The English Lawyers have not bestowed so much pains on the objects of voluntary jurisdiction, nor any thing like it. [[De Lolme’s meaning here is somewhat obscure. He apparently contrasts the refinement and detail of Roman law covering certain voluntary agreements (such as contracts and testaments) with the relative paucity of common law on these topics. English courts routinely handled disputes involving such voluntary agreements. However, a unified common law of contracts and wills was a development of the nineteenth century.

[(a) ]The words addressed to the Plaintiffs by the person sued, when the latter made his appearance on the day for which he had been compelled to give sureties, were as follow, and are alluded to by Plaut. Curcul. I. 3. v. 5. [[De Lolme quotes the comedy Curculio (1.3,5–9) by the master comic dramatist Titus Maccius Plautus (ca. 254–184 b.c.e.). “Where art thou who hast obliged me to give sureties? Where art thou who summonest me? Here I stand before thee, do thyself stand before me.” To which the Plaintiff made answer, “Here I am.” The defendant replied, “What dost thou say?” When the Plaintiff answered, I say . . . (Aio) and then followed the form of words by which he chose to express his action. Ubi tu es, qui me vadatus es? Ubi tu es qui me citasti? Ecce ego me tibi sisto;tu contra & te mihi siste, &c.

If the action, for instance, was brought on account of goods stolen, the settled penalty or damages for which was the restitution of twice the value, the words to be used were, Aiodecem aureos mihi furto tue abesse, teque eo nomine viginti aureos mihi dare oportere. “I say that through your theft I am minus ten aurei, and that on that account you ought to pay me twenty aurei.” For work done, such as cleaning of cloaths, &c. Aiote mihi tritici modium de quo inter nos convenit ob polita vestimenta tua, dare oportere. “I say you ought to pay me a bushel of wheat, according to the agreement between us for cleaning your clothes.” For recovering the value of a Slave killed by another Citizen, Aiote hominem meum occidisse, teque mihi quantum ille hoc anno plurimi fuit dare oportere. “I say that you killed my slave, and that you ought to pay me what his highest value amounts to this year.” For damages done by a vicious animal, Aiobovem Maevii servum meum, Stichum, cornu petiisse & occidisse, eoque nomine Maevium, aut servi aestimationem praestare, aut bovem mihi noxae dare, oportere; or Aioursum Maevii mihi vulnus intulisse, & Maevium quantum aequius melius mihi dare oportere, &c. &c. “I say that Maevius’s ox gored and killed my slave Stichus, and that on that account Maevius ought either to pay the estimated value of the slave, or else surrender to me the ox, as an equivalent for the injury; or, I say that Maevius’s bear has wounded me, and that Maevius ought to make the most ample equitable compensation.”

It may be observed, that the particular kind of remedy which was provided by the law for the case before the Court, was expresly pointed out in the formula, used by a Plaintiff; and in regard to this no mistake was to be made. Thus, in the last quoted formula, the words quantum aequius melius “most ample equitable remedy”, shew that the Praetor was to appoint inferior Judges, both to ascertain the damage done, and determine finally upon the case, according to the direction he previously gave them; these words being exclusively appropriated to the kind of actions called Arbitrariae, from the above mentioned Judges or Arbitrators. In actions brought to require the execution of conventions that had no name, the convention itself was expressed in the formula; such is that which is recited above, relating to work done by the Plaintiff, &c. &c.

[11. ]Writs were the legal documents obtained to initiate a suit at common law. “Detinue, trespass,” etc., were the names of specific types of legal process—or “forms of action”—used by the common law for the determination of legal rights and the redress of legal injuries.

[(a) ]Jacob’s Law Dictionary. See Writ. [[De Lolme cites, with some variation, Giles Jacob, A New Law-Dictionary (1729), s.v. “Writ.”

[12. ]De Lolme invokes the technical terms for the required steps by which lawyers presented and developed their clients’ cases in formal court proceedings.

[(a) ]Cunningham’s Law Dictionary. See Pleadings. [[De Lolme cites, with some variation, Timothy Cunningham, A New and Complete Law-Dictionary, or, General Abridgment of the Law (1764–65), s.v. “Pleadings.”

[(b) ]Writs, legally issued, are also necessary for executing the different incidental proceedings that may take place in the course of a law suit, such as producing witnesses, &c. The names given to the different kinds of writs, are usually derived from the first Latin words by which they began when they were written in Latin, or at least from some remarkable word in them; which gives rise to expressions sufficiently uncouth and unintelligible. Thus, a Pone, is a writ issued to oblige a person in certain cases to give sureties (Pone per vadium, and salvos plegios). [[“Take bail for the appearance (of the defendant)” and “safe surety.” A writ of Subpoena is to oblige witnesses, and sometimes other classes of persons, to appear before a Court. An action of Qui tam, is that which is brought to sue for a proportional share of a fine established by some penal Statute, by the person who laid an information: the words in the writ being, Qui tam pro Domino rege, quam pro seipso in hac parte sequitur, &c. &c. “Who sues in this behalf for our lord the king, as well as for himself, etc.”

[(a) ]Hanaperium & Parva baga; the Hanaper Office, and the Petty-bag Office: the above two Latin words, it is not improper to observe, do not occur in Tully’s works. To the care of the Petty-bag office those writs are trusted in which the King’s business is concerned; and to the Hanaper office, those which relate to the Subject. [[As De Lolme correctly explains, the Hanaper Office and the Petty-bag Office were the names of the offices that kept records of the common law writs issued by the Court of Chancery. Though the offices were given Latin names, the terms “do not occur in Tully’s [Cicero’s] works”; that is, the offices were unknown to Roman law.

[(a) ]From the above instance it might be concluded that the Roman Jurisconsults were possessed of still greater power than the English Parliament; for it is a fundamental principle with the English Lawyers, that Parliament can do every thing, except making a Woman a Man, or a Man a Woman. [[By “Roman Jurisconsults,” De Lolme likely refers to the several praetorian edicts to which he returns in book 1, chapter 11, pp. 106–108; these edicts relaxed the rules of exclusively patriarchal succession to enable inheritance to pass through female descendants. In his reference to “the English lawyers,” he likely refers to the constitutional claim, as articulated by Blackstone, that in the exercise of its legislative sovereignty, Parliament “can, in short, do any thing that is not naturally impossible.” See Blackstone, Commentaries on the Laws of England, 1:156.

[13. ]“Breaking his enclosure.” “Trespass” came to cover a large and varied group of writs used to redress injuries to property and to persons. Trespass clausum fregit originally handled cases involving illegal entry on privately owned land.

[14. ]“Conceals himself.” The writ of latitat brought a suit before the Court of King’s Bench by ordering a sheriff to arrest an allegedly recalcitrant defendant for a fictitious trespass committed in the county of Middlesex, where the court enjoyed original jurisdiction. The fiction was developed in the sixteenth century and dramatically increased the business of the King’s Bench at the expense of the Court of Common Pleas.

[(a) ]Another instance of the strict adherence of the English Lawyers to their old established forms in preference even to the truth of facts, occurs in the manner of executing the very Act mentioned in this Chapter, passed in the reign of George I. for preventing personal Arrest for debts under forty shillings. [[See above, p. 92, note 5. If the defendant, after being personally served with a copy of the process, does not appear on the appointed days, the method is to suppose that he has actually made his appearance, and the cause is proceeded upon according to this supposition: fictitious names of bails are also resorted to.

The inhabitants of Bengal, and other East-India provinces, have been prodigiously surprised, it is said, at the refinements, fictions, and intricacy of the English law, in regard to civil matters, which was introduced among them a few years ago; and it is certainly not to be doubted that they may have been astonished. De Lolme refers to the Regulating Act of 1773, which introduced a new administrative structure and court system for the East India Company’s rule in Bengal and other territories. The legislation did not directly transfer English law to British India but created the institutional structure that made possible the introduction of English legal forms and procedures.