Front Page Titles (by Subject) STATE TRIALS OF THE REIGN OF EDWARD I 1 - The Collected Papers of Frederic William Maitland, vol. 3
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STATE TRIALS OF THE REIGN OF EDWARD I 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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STATE TRIALS OF THE REIGN OF EDWARD I1
One of the virtues which is placing Mr Tout in the very front rank of our historians is his determination to leave no stone unturned, no thicket unbeaten. Out of the thicket may fly a bird worth powder and shot. Under the stone may lurk a toad with a jewel in its head. Every historian of Edward I’s reign must say a little of the judicial scandal of 1289, the appointment of auditors to hear complaints against the judges, and the purgation of the bench. If he writes on a large scale he will probably say something of Ralph Hengham and Adam of Stratton, of Thomas Weyland and Solomon of Rochester. The chroniclers are not dumb about this matter. Far from it. They are vociferous. But what they tell us, when we have blown away some effervescent froth, lacks precision. We infer that behind the smoke there must be fire, but the extent of the conflagration is very uncertain. Clearly there had been some scoundrels in high places; but were all the king’s judges a pack of knaves? Was there none that did good, no, not one, save only John of Mettingham, whose rectitude is positively tiresome?
Professor Tout, having heard that there were at the Record Office two large rolls, on which were set forth the proceedings of the auditors, decided to grapple with this promising yet repulsive material. Here was a stone to be turned, a thicket to be beaten. Regarded as thickets, legal records, with their technical phrases, their etceteras, their unfinished words, are dense and thorny. Regarded as stones they are apt to break up, as we lift them, into little fragments, and the dust thereof gets into our eyes and obscures the view. But Mr Tout is not easily repelled or discouraged. He sets to work upon these rolls, and when he could no longer find time for the task of transcription Miss Johnstone relieved him. By means partly of long extracts, partly of an ingeniously constructed calendar, they give us the sum and substance of the information that can be obtained from a great mass of parchment. Then in an excellent introduction, which is the work of Miss Johnstone, we find judicious generalisation. I do not think that the book could have been better planned, and the execution, so far as I can judge, seems wonderfully good. Any one who hereafter wishes thoroughly to know the England of Edward I will be bound to study these pages, or at all events the introduction. One reader can honestly thank the editors for a good many hours of unalloyed pleasure.
Instead of endeavouring to sum up the conclusions at which they have arrived—conclusions so succinctly stated that no summary is needed—we may notice that incidentally light is thrown into some dark corners of legal history. For example, one of these records offers much the earliest proof that I can remember to have seen of the fact that the indicting jury received “bills” handed to it by a judge. Every one, we are told, is free to deliver a bill of indictment to any of the justices in eyre. Then the justice delivers the bill to the jurors, and they, if they think its contents true, make a presentment to that effect. In all essentials we have here the procedure which obtains at the present day. Not only are these already bills of indictment, but they pass through the hands of a judge, who thus has an opportunity of talking about them to the jurors. This is by no means the only bird that has flown out of the well-beaten covert, but it may serve as a specimen. A loyal member of the Selden Society feels a little jealous.
In matters of law the editors acquit themselves so well that a professional lawyer might envy their sureness of foot. At the same time it ought to be known—for it is a fact—that the work of copying plea rolls is by no means easy. One can, for example, expand the little syllable iur’ in many different ways. Any one who has been engaged in this work is likely to feel that he has in his time been guilty of many crimes, and a superannuated copyist may endeavour to quiet his conscience by discovering mistakes in what is done by other people. I will venture to suggest a few small amendments by way of proving that I have read with attention and enjoyment. I ought to add that some parts of these rolls are very ill to read, and that the courage and skill with which Miss Johnstone has encountered some really great difficulties seem to me worthy of high admiration. It is much to be hoped that she will continue her labours in a field in which she has already done excellent service. Meanwhile I submit my corrigenda. Even if all of them are acceptable they do not indicate many flaws.
P. 6, 1. 29. For se tamen read se tantum, meaning he alone.
P. 8, 1. 33. There seems no reason for changing suus into suis. Have we not here the Suo A. suus B. of the polite letter-writer?
P. 9, 1. 1. For mandatum read inauditum, meaning unheard of.
P. 21, 1. 10. In sex de predicto panello iuratores fuerunt read iurati instead of iuratores. Six of the jurors were already sworn. Then, going back to p. 19, 1. 30, we can improve on sex de illis iur[atores et]. I seem to see a barely legible iurassent.
P. 36, 1. 15. For nichil sciuit de hoc read nichil sciuit. De hoc. A full-stop is badly needed here, just because one does not at once see the need of it.
P. 37, 1. 5. Is not quod precepit [not preceptum] cap[ere] non capiendum what is wanted? Hengham ordered the arrest of one who ought not to have been arrested.
P. 38, 1. 19. The prouiti, which I cannot construe, should, I think, be promti [ready], but I have to suppose that the scribe omitted a few words.
P. 39, 1. 18. For valitate read vtilitate.
P. 47, 1. 3. Read et super hoc exiuit breue eiusdem Radulfi de iudicio capitali iusticiario [not capitalis iusticiarii] de Hibernia. This is a really difficult passage, but I think the key to it is the fact that the term breue de iudicio had become a sort of compound substantive. It means a “judicial writ,” that is, a writ proceeding from a court of law as contrasted with a breue originale issuing from the chancery. (Compare our modern “judgment summons.”) Perhaps the scribe would have done better had he written breue de iudicio eiusdem Radulfi exiuit; but that also would have been ambiguous. I construe thus: “A judicial writ of (i.e. tested by) Ralph Hengham issued to the chief justice of Ireland.”
P. 48, 1. 10. For placito noto read placito moto.
P. 48, 1. 16. For ut tenemus read ut tenemur, meaning as our duty is.
P. 49, 1. 7. For contra iusticiarios read contra iusticiam. According to the complainant justice was on one side and the justices were on the other.
P. 51, 1. 8. For saluo. . . iuratore suo read saluo. . . iure suo.
P. 69, 1. 7. For plures iuratores read plus iuris. The prior had more right in his demand than Henry in his defence. Compare the maius ius which soon follows. That the roll gives plus is duly noted by the editors.
P. 69, 1. 26. In the phrase et si non sit verum quod deniant illam billam might we not read demant? A Lat. deniare made from Fr. denier is not impossible. But a subjunctive seems to be wanted, and see the iudicium demptum on p. 36. The jurors are, I think, to “dash the bill.”
P. 78, 1. 9. The acupamento of roll and footnote is, I fancy, better than the acusamento of the text. In year-book French the words acoupement, encoupement (hardly distinguished from each other) are common, while I cannot remember acusement.
P. 91, 1. 20. For conuincatur read commitatur.
The very interesting record concerning the prior of Butley and John Lovetot (p. 62) might have been more completely published if the editors had known that a copy of the record of a later stage of this case was partially printed by Sollom Emlyn in his notes to Hale’s Pleas of the Crown (II. 298). It is an important case in the history of trial by jury, and also in the history of villeinage, and we may regret that, owing to the bad condition of the roll, the editors were unable to tell the whole story, or perhaps to see how exceptionally interesting it is. One of the errors laid to the charge of the justices was that they had maintained the doctrine that free blood could not be made servile by long continued performance of villein services. The auditors, on the other hand, declared that this liberal maxim was omnino falsum. Then they were bidden to send the case to the King’s Bench, where there was more pleading. I do not know that the judgment of that court has yet been found. This is one of those cases which make us think that there were two sides to the stories told against King Edward’s justices. A man who was trembling on the verge of villeinage obtained a judgment against a prior who had ejected him. The prior complained to the auditors, who reversed the judgment; but the ejected tenant was not yet beaten, and is last seen pleading for land and liberty before a regular court.
Besides the records the editors have printed a Passio Iudicum which throws a queer light upon medieval religion. It is a short satire or squib made up of a large number of Biblical texts which are jocosely perverted. One knows not whether to call it ribald or to say that in an age of faith ribaldry was impossible. The editors have done for it all that could be asked of them, and they must have been very happy when they saw that fons Babylonis is Babwell.
English Historical Review, Oct. 1896.