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Theodore Frank Thomas Plucknett, A Concise History of the Common Law [1956]

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Theodore Frank Thomas Plucknett, A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010). http://oll.libertyfund.org/titles/2458

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About this Title:

Plucknett’s work provides a common-law understanding of individual rights, not in theory only, but protected through the confusing and messy evolution of courts, and their administration as they struggled to resolve real problems. The first half of the book is a historical introduction to the study of law. Plucknett discusses the conditions in political, economic, social, and religious thought that have contributed to the genesis of law. The second half of the book consists of chapters introducing the reader to the history of some of the main divisions of law, such as criminal tort, property, contract, and succession.

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The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
A Concise History of the Common Law
Edition: current; Page: [ii] Edition: current; Page: [iii]
A CONCISE HISTORY OF THE COMMON LAW
by Theodore F. T. Plucknett
liberty fund
Indianapolis
Edition: current; Page: [iv]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

lf1578_figure_001.jpg

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

This 2010 Liberty Fund edition is reproduced from the fifth edition originally published by Little, Brown and Co., 1956

A Concise History of the Common Law, © 1929, renewed 1956, by Theodore F. T. Plucknett. Reprinted by permission.

All rights reserved

Printed in the United States of America

c 1 2 3 4 5 6 7 8 9 10

p 1 2 3 4 5 6 7 8 9 10

Library of Congress Cataloging-in-Publication Data

Plucknett, Theodore Frank Thomas, 1897-1965.

Concise history of the common law / by Theodore F. T. Plucknett.—5th ed.

p. cm.

Originally published: 5th ed. Boston: Little, Brown and Co., 1956. 2nd ed. 1936.

Includes bibliographical references and index.

isbn 978-0-86597-806-5 (hardcover: alk. paper)—isbn 978-0-86597-807-2

(pbk.: alk. paper)

1. Common law—Great Britain—History. 2. Law—Great Britain—History.

I. Title. II. Title: Common law.

kd671.p58 2010

340.5’70942—dc22 2010030981

liberty fund, inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [v]

PREFACE TO THE FIFTH EDITION

The decision of the publishers to reprint this work in a larger type will have made it easier for the reader to use it, I hope; it has also made it possible to effect a good deal of revision. No new subjects have been added, however, for the object of the work has always been to treat only a limited number of topics, but with sufficient detail to make them intelligible. This has made it necessary to place the history of English law in its setting of canon, civil, and general European law in order to show the intellectual influences which have moulded our own system. Comparison with other legal systems is therefore essential to the method here pursued. The point of view adopted throughout is that of a historian who surveys the law from the outside, as it were, and contributes both comparison and criticism to the historical study contained in the following pages.

Besides a few additions (which are distributed fairly evenly through the book), there have been numerous revisions, occasionally rearrangements (especially in dealing with the jury), and sometimes a more ample explanation of difficult points.

The general plan of the work remains unchanged. The first half of the book is an historical introduction to the study of law, and stress has therefore been placed upon those conditions in political, economic, social and religious thought which have contributed to its formation. As the readers for whom this part is designed will generally be first-year undergraduates, it seemed prudent to assume that their previous knowledge of history would be by no means extensive; hence the distinctly elementary note of the first eighty pages.

The courts, the profession, and such general factors in legal development as legislation and the principle of precedent, are subjects which deserve close attention at the introductory stage, for they are the foundation of much that follows. It would, no doubt, be possible to state the essential facts in a very condensed form by using an encyclopaedic style, but such a treatment is not very helpful to beginners. Enough illustrative material has therefore been used to give, I hope, some of the spirit and atmosphere in which the common law system grew up.

The place of legal history in the law school curriculum is still a matter of debate. It may be remarked, however, that if law is a difficult study to the beginner, the history of the law, with its different outlook and unfamiliar concepts, is apt to be more difficult still. This book has therefore been planned on the principle that the first part, “A General Survey of Legal History,” is as much legal history as a first-year student can be expected to master, in view of the fact that he is embarking upon a subject for which his earlier studies have given him little preparation. Edition: current; Page: [vi] At a later stage he can embark upon legal history in more detail, either as a separate subject, or as part of the study of substantive law.

The second half of the book, therefore, consists of introductions to the history of a few of the main divisions of the law. Other topics, indeed, might have been added, but only at the risk of defeating the object of the book, which is to convey a sense of historical development, and not to serve as a work of reference. The mere recital of historical data is not enough, and so a limited field, treated with careful exposition, seemed more likely to interest those who are just embarking upon their legal education, than a more comprehensive (and therefore less intimate) treatment of a larger field. The increase of size in this edition is very slight, and is attributable principally to the amplification of expository passages, and not to the introduction of new subjects for treatment.

Everyone who is interested in the history of the law is under an immense debt to the writings of Pollock, Maitland and Holdsworth in England, and of Holmes, Thayer and Ames in America. Were it not for the thirteen masterly volumes of the Vinerian Professor, neither this nor any other short history of English law could be written with any degree of confidence. The stately series of the Selden Society’s publications has provided a rich harvest of original materials which adds immensely to the vividness of legal history whenever teachers and students make use of them. The even longer series of many of our county historical societies afford rich illustration of our legal history, and the grateful thanks of legal historians are due to these bodies, and especially to the enlightened bands of subscribers who make it possible to continue the work of publication, even in these inauspicious days. The footnotes to this history have been designed to place illustrative cases and statutes easily within the reach of readers. The Council of the Selden Society have kindly allowed me to reproduce a lengthy extract from one of their publications, and I hope that readers will be tempted to explore these and the other sources cited.

It should be explained that the text and pagination of this fifth edition correspond entirely, both in the English issue by Messrs. Butterworth, and in the American issue by Messrs. Little, Brown and Company.

My thanks are due once again to many friends who have discussed legal history and its teaching with me in a very helpful way, and to many English and American teachers who used the earlier editions and were kind enough to send me valuable suggestions. I am once again particularly grateful to Professor H. A. Hollond of Cambridge and Professor A. D. Hargreaves of Birmingham for their learned criticisms and interest, to Mr. K. Howard Drake for the Index, and to Messrs. Butterworth for their constant and sympathetic care in the production of this volume, and in the preparation of the Tables.

T. F. T. P.
Edition: current; Page: [vii]

CONTENTS

  • Preface - - - - - - - - - - - - - page v
  • Table of Mediaeval Cases - - - - - - - - - xi
  • Table of Modern Cases - - - - - - - - - - xvii
  • Table of Laws and Statutes - - - - - - - - - xix
  • BOOK ONE A GENERAL SURVEY OF LEGAL HISTORY
    • PART I THE CROWN AND THE STATE
      • Chapter 1. The Anglo-Saxon Period: Races and Religion - - - - 6
      • 2. The Conquest to Henry II: The Beginnings of Administration - 11
      • 3. The Great Charters: Law Separates from Administration - - 20
      • 4. Edward I to Richard II: Statutes and Social Revolution - - 27
      • 5. The Fifteenth Century: The Problem of Enforcement - - - 35
      • 6. The Tudors: Renaissance, Reformation and Reception - - - 39
      • 7. The Stuarts: Struggle for the Supremacy of Law - - - - 48
      • 8. The Eighteenth Century: Industrial Revolution - - - - 65
      • 9. The Nineteenth Century: Liberalism and Reform - - - - 73
    • PART II THE COURTS AND THE PROFESSION
      • 1. The Communal Courts - - - - - - - - - 83
      • 2. Seignorial Jurisdiction - - - - - - - - - 95
      • 3. The Crown and Local Courts - - - - - - - 101
      • 4. The Jury - - - - - - - - - - - 106
      • 5. The Origins of the Central Courts - - - - - - 139
      • 6. The Elaboration of the Judicial System: 1307-1509 - - - 157
      • 7. The Tudors and the Common Law Courts - - - - - 170
      • 8. The Rise of the Prerogative Courts - - - - - - 176
      • 9. Prerogative, Equity and Law under the Stuarts - - - - 191
      • 10. Parliament and the Privy Council - - - - - - - 199
      • 11. The Courts in the Nineteenth Century - - - - - - 207
      • 12. The Legal Profession - - - - - - - - - 215
      • 13. The Growth of the Judiciary - - - - - - - 231
      • 14. Professional Literature - - - - - - - - 252
      Edition: current; Page: [viii]
    • PART III SOME FACTORS IN LEGAL HISTORY
      • Chapter 1. The Civil Law of Rome - - - - - - - - - page 294
      • 2. The Canon Law of the Church - - - - - - - 301
      • 3. Custom - - - - - - - - - - - - 307
      • 4. Legislation - - - - - - - - - - - 315
      • 5. The Principle of Precedent - - - - - - - - 342
  • BOOK TWO SPECIAL PART
    • PART I PROCEDURE
      • 1. The Forms of Action - - - - - - - - - 353
      • 2. Civil Procedure - - - - - - - - - - 379
      • 3. Pleading - - - - - - - - - - - 399
    • PART II CRIME AND TORT
      • 1. Criminal Procedure - - - - - - - - - 424
      • 2. The Felonies - - - - - - - - - - - 442
      • 3. Misdemeanours, Trespass and Tort - - - - - - - 455
      • 4. Liability, Civil and Criminal - - - - - - - - 463
      • 5. Defamation - - - - - - - - - - - 483
    • PART III REAL PROPERTY
      • 1. Feudalism - - - - - - - - - - - 506
      • 2. Feudalism in England - - - - - - - - - 516
      • 3. Inheritance and Alienability - - - - - - - 521
      • 4. Tenures and Incidents - - - - - - - - - 531
      • 5. The Rise of the Entail - - - - - - - - - 546
      • 6. The Common Law Estates down to 1540 - - - - - - 558
      • 7. Uses and the Statute - - - - - - - - - 575
      • 8. The Later Law of Real Property - - - - - - - 588
      • 9. The Mortgage - - - - - - - - - - 603
      • 10. Conveyances - - - - - - - - - - - 610
    • PART IV CONTRACT
      • 1. Origins - - - - - - - - - - - - 628
      • 2. The Fourteenth Century - - - - - - - - 633
      • 3. Assumpsit to Slade’s Case - - - - - - - - 637
      • 4. Contract after Slade’s Case - - - - - - - - 647
      • 5. Law Merchant and Admiralty - - - - - - - 657
      Edition: current; Page: [ix]
    • PART V EQUITY
      • Chapter 1. The Early History of Equity - - - - - - - - page 675
      • 2. The Formative Period - - - - - - - - - 685
      • 3. The Work of the Chancellors - - - - - - - 695
    • PART VI SUCCESSION
      • 1. Inheritance - - - - - - - - - - - 712
      • 2. Intestacy - - - - - - - - - - - 725
      • 3. Wills - - - - - - - - - - - - 732
  • INDEX
Edition: current; Page: [x] Edition: current; Page: [xi]

TABLE OF MEDIAEVAL CASES

page
SELECT CIVIL PLEAS (Selden Society):
no. 1 (1200) 721
no. 8 (1200) 477
no. 17 (1200) 402
no. 56 (1200) 529
no. 59 (1200) 362
no. 65 (1200) 722
no. 76 (1201) 400
no. 148 (1203) 540
no. 167 (1203) 527
no. 179 (1202) 417
no. 183 (post 1205) 489
no. 194 (1201?) 718
CURIA REGIS ROLLS:
ii. 181-182 (1203) 159, 477
vii. 136, 179 (1214) 150, 677
332 (1221) 166
SELECT PLEAS OF THE CROWN
(Selden Society):
no. 28 (1202) 677
no. 91 (1203) 144
no. 115 (1214) 428
no. 126 (n.d.) 476
no. 157 (1221) 124
no. 169 (1221) 453
no. 170 (1221) 124
no. 192 (1220) 121, 123
LINCS. & WORCS. EYRE ROLLS
(Selden Society, vol. 53):
no. 908 (1219) 569
GLOUCS., WARW. & SALOP. EYRE ROLLS
(Selden Society, vol. 59):
no. 77 (1221) 678
no. 85 (1221) 472
no. 100a (1221) 551
no. 102 (1221) 571
no. 127 (1221) 573
no. 173 (1221) 540
no. 187 (1221) 722
no. 200 (1221) 577
no. 227 (1221) 91
no. 232 (1221) 423, 465, 718, 722
no. 257 (1221) 567, 577
no. 272 (1221) 573
no. 290 (1221) 737
no. 474 (1221) 360, 678
no. 559 (1221) 569
no. 560 (1221) 716
no. 715 (1221) 166
no. 728 (1221) 124
no. 751 (1221) 120
no. 767 (1221) 124
no. 822 (1221) 120
no. 832 (1221) 453
no. 877 (1221) 125
no. 977 (1221) 476
no. 978 (1221) 449
no. 1005 (1221) 431
no. 1013 (1221) 577
no. 1018 (1221) 573
no. 1023 (1221) 567, 713
no. 1073 (1221) 678
no. 1080 (1221) 566
no. 1090 (1221) 568
no. 1159 (1221) 567
no. 1184 (1221) 166
no. 1239 (1221) 121, 484
no. 1241 (1221) 453
no. 1433 (1222) 567
no. 1450 (1222) 534, 541
no. 1458 (1222) 166
no. 1459 (1222) 540
no. 1477 (1222) 128, 401
no. 1479 (1222) 551
NORTHANTS ASSIZE ROLLS (ed. Stenton):
no. 782 (1202) 156
BRACTON’S NOTE BOOK (ed. Maitland):
no. 21 (1219) 538
no. 27 (1219) 678
no. 36 (1219) 736
no. 44 (1219) 720
no. 54 (1219) 145
no. 56 (1219) 678
no. 67 (1219) 453
no. 77 (1219) 618
no. 86 (1220) 548, 560
no. 157 (1222) 368
no. 185 (1222) 117
no. 230 (1224) 718
no. 241 (1227) 547
no. 243 (1227) 94
no. 280 (1228) 719
no. 381 (1230) 740
no. 458 (1230) 607
no. 564 (1231) 716
no. 566 (1231) 547
no. 607 (1231) 570
no. 754 (1233) 46, 677
no. 824 (1233) 121
no. 834 (1234) 721
no. 842 (1234) 318
no. 892 (1224) 718
no. 900 (1224) 385
no. 951 (1224) 718
no. 980 (1224) 117
no. 982 (1224) 718
no. 988 (1224) 718
no. 999 (1224) 677
no. 1038 (1225) 117
no. 1054 (1225) 529
no. 1128 (1234-5) 721
no. 1146 (1235-6) 143
no. 1166 (1236) 388
no. 1215 (1236) 361
no. 1220 (1237) 150
no. 1334 (1217) 567, 713
no. 1383 (1220) 403
no. 1412 (1220) 104
no. 1416 (1220) 117
no. 1683 (1225) 618, 677
no. 1739 (1226) 570
no. 1830 (1227) 718
no. 1840 (1227) 534, 541
no. 1851 (1226-7) 677
PROCEDURE WITHOUT WRIT: HENRY III
(Selden Society):
31-32 (1253) 453
SELECT CASES IN KING’S BENCH:
EDWARD I (Selden Society):
i 32 (1277) 568
34 (1277) 641
43 (1278) 277
45 (1278) 540
66 (1280) 444
70 (1280) 453
76 (1281) 127
102 (1282) 430
115 (1288) 276
148 (1285) 163
178 (1289) 376
ii. clvii (1239) 718
3-5 (1290) 234
16 (1290) 376
19 (1290) 473
26 (1290) 429
52 (1291) 736
53 (1291) 453
69 (1292) 663
90 (1288) 129
98 (1292) 389
131 (1292) 429
134 (1292) 423, 458
136 (1292) 423
iii. 58 (1298) 680
125 (1303) 541
167 (1307) 615
YEAR BOOK 20 & 21 EDWARD I
(Rolls Series):
10 (1292) 417
39 (1292) 568
52 (1292) 389
55 (1292) 568
58 (1292) 554
110 (1292) 132
170 (1292) 128
212 (1292) 724
228-30 (1292) 571
232-3 (1292) 559
264 (1292) 737
266 (1292) 724
302 (1292) 618
442 (1293) 221
YEAR BOOK 21 & 22 EDWARD I
(Rolls Series):
1 (1293) 633
155 (1293) 129
222 (1293) 221
228 (1293) 361
273 (1293) 125
274 (1293) 540
276 (1293) 357, 679
404 (1294) 615
446 (1294) 724
452 (1294) 388
456 (1294) 647
456-8 (1294) 66
466 (1294) 374
468 (1294) 374, 411
492 (1294) 411
590 (1294) 739
YEAR BOOK 30 & 31 EDWARD I
(Rolls Series):
124 (1302) 395
195 (1302) 188, 683
202 (1302) 473
210 (1302) 605
233 (1302) 356
240 (1302) 445
250 (1302) 548
378 (1303) 540
384 (1303) 548
441 (1303) 329
522 (1302) 126
531 (n.d.) 24, 440
YEAR BOOK 32 & 33 EDWARD I
(Rolls Series):
16 (1304) 417
32 (1304) 345
264-271 (1304) 718
328 (1304) 562
429 (1305) 331
462 (1305) 127
YEAR BOOK 33 & 35 EDWARD I
(Rolls Series):
6 (1305) 345
54 (1305) 723
64 (1305) 222
82 (1305) 335
154 (1306) 718
362 (1306) 559
388 (1306) 618
496 (1307) 555
503 (1307) 447
YEAR BOOKS OF EDWARD II
(Selden Society Series):
i. 70 (1308) 555
117 (1308) 555
119 (1308) 540
137 (1308) 545
ii. 4 (1309) 562
5 (1309) 543
16 (1309) 647
21 (1309) 543
59 (1309) 677
74 (1309) 677, 679
76 (1309) 577
iii. 16 (1310) 362, 570
91 (1310) 345
185 (1310) 577
196 (1310) 239
iv. 161 (1310) 345
v. 80 (1313) 452
88 (1313) 453
90 (1313) 473, 476
95 (1313) 473
vi. 58 (1311) 720
vii. 86 (1313) 356
viii. 44 (1313) 556
viii. 85 (1314) 605, 607
132 (1314) 607
ix. 28 (1311) 550
x. 11 (1311) 640
12 (1311) 567, 713
36 (1311) 618
95 (1311) 361
98 (1311) 557
114 (1311) 557
171 (1311) 158
220 (1311) 410
240-3 (1311) 313, 523
269 (1311) 555
276 (1311) 263, 716
281 (1311) 540
285 (1311) 720
286 (1311) 721
xi. 20 (1312) 129
85 (1312) 540
87 (1312) 397
139 (1312) 397
160 (1312) 555
176 (1312) 332, 553
xii. 44 (1312) 684
107 (1312) 361
133 (1312) 618
226 (1312) 553
xv. 74 (1313) 720
188 (1313) 617
xvii. 118 (1315) 345
136 (1315) 449, 477
215 (1315) 720
xviii. 35 (1314) 605
36, 50 (1314) 605
xix. 28 (1315) 545
xx. 99 (1316) 618
xxi. 79 (1317) 718
xxii. 15 (1317) 591
18 (1317) 619
31 (1317) 356
49 (1317) 478
96 (1317) 389
104 (1317) 385
115 (1317) 385
127 (1317) 477
146 (1317) 545
153 (1318) 721
169 (1318) 605
238-241 (1318) 541
244 (1318) 392
264 (1318) 365
266 (1318) 475
268-278 (1318) 412
280 (1318) 619
290 (1318) 469
315 (1318) 158
YEAR BOOKS (Vulgate edition):
17 Edward II, f. 536 (1324) 744
19 Edward II, f. 628 (1325) 721
2 Edward III, Hil. no. 17 (1328) 431
3 Edward III, Michs. no. 19 (1329) 385
5 Edw. III, Michs. no. 104 (1331) 365
10 Edward III, Michs. no. 8 (1336) 562
YEAR BOOK 11 & 12 EDWARD III
(Rolls Series):
142 (1337?) 729
186 (1337) 742
326 (1337) 123
328 (1337) 684
YEAR BOOK 12 & 13 EDWARD III
(Rolls Series):
83 (1339) 447
98 (1339) 163
246 (1339) 478
YEAR BOOK 13 & 14 EDWARD III
(Rolls Series):
96 (1339) 680
328 (1340) 742
YEAR BOOK 14 & 15 EDWARD III
(Rolls Series):
260 (1341) 127
288-300 (1341) 152
364 (1341) 388
YEAR BOOK 15 EDWARD III
(Rolls Series):
390 (1341) 222, 331
YEAR BOOK 16 EDWARD III
(Rolls Series):
vol. i, 90 (1342) 333
108 (1342) 164
vol. ii, 118 (1342) 115
YEAR BOOK 17 EDWARD III
(Rolls Series):
142 (1343) 333
370 (1343) 333, 394
YEAR BOOK 17 & 18 EDWARD III
(Rolls Series):
72 (1343) 401
342 (1343) 548
446 (1344) 333
YEAR BOOK 18 EDWARD III
(Rolls Series):
131 (1344) 333
308 (1344) 394
YEAR BOOK 18 & 19 EDWARD III
(Rolls Series):
58 (1344) 680
60 (1344) 680
201 (1344) 554
374-378 (1345) 561
YEAR BOOK 19 EDWARD III
(Rolls Series):
140 (1345) 347
170 (1345) 338
332 (1345) 361
YEAR BOOK 20 EDWARD III
(Rolls Series):
vol. i, 16 (1345) 161
92-4 (1346) 394
vol. ii, 422 (1346) 742
YEAR BOOKS (Vulgate edition):
21 Edward III, Pasch. no. 2 (1347) 578, 606, 649
24 Edward III, Michs. no. 79, f. 70 (1350) 565
25 Edward III, Pasch. no. 2 (1351) 453
27 Edward III, Michs. no. 20, f. 8 (1353) 680
39 Edward III, Pasch. f. 7 (1365) 328
39 Edward III, Pasch. f. 14 (1365) 202
40 Edward III, Hil. no. 18, f. 9 (1366) 565
40 Edward III, Pasch. no. 1, f. 15 (1366) 376
40Edward III, Pasch. no. 28, f. 25 (1366) 389
40Edward III, Trin. no. 18, f. 34 (1366) 330
40Edward III, Michs. no. 12 (1366) 744, 745
41Edward III, Pasch. no. 5 (1367) 635, 645
41Edward III, Pasch. no. 9 (1367) 365
41Edward III, Michs. no. 2, ff. 17-19 577
42Edward III, Pasch. no. 13, f. 11 (1368) 373, 481
43Edward III, Michs. no. 38 (1369) 637
46Edward III, Trin. no. 19, f. 19 (1372) 469, 471, 481
47Edward III, Michs. no. 16 (1373) 562
48Edward III, Michs. no. 17 (1374) 127
49Edward III, Hil. no. 5, f. 2 (1375) 389
LIBER ASSISARUM (1-50 EDWARD III):
8Ass. no. 28 (1334) 577
22Ass. no. 41, f. 94 (1348) 469, 470
27Ass. no. 60 (1353) 565
no. 69 (1353) 453
29Ass. no. 4 (1355) 129
no. 28, f. 162 (1355) 478
30Ass. no. 19, f. 177 (1356) 491
39Ass. no. 20 (1365) 563
41Ass. no. 11, f. 253 (1367) 129
42Ass. no. 17 (1368) 481
YEAR BOOKS OF RICHARD II
(Ames Foundation):
v. 71 (1387) 556
119 (1388) 576
147-149 (1388) 394
148 (1388) 394
158 (1388) 567
187 (1388) 742
223, 227 (1388) 471, 639
240-242 (1388) 581
268-278 (1388) 412
283-288 (1388) 563
vi. 1 (1388) 742
4 (1388) 474
71 (1388) 545
vii. 9 (1389) 744
52 (1389) 567
56 (1389) 374
80 (1389) 314
89 (1389) 572
104 (1390) 373, 469
123 (1390) 33
161 (1390) 339
YEAR BOOKS (Vulgate edition):
1Henry IV, Michs. no. 1, f. 1 (1399) 203, 339
2Henry IV, Michs. no. 9 (1400) 639
2Henry IV, Michs. no. 48 (1400) 414
11Henry IV, Michs. no. 20, f. 7 (1409) 338
11Henry IV, Michs. no. 67, f. 39 (1409) 339
11Henry IV, Michs. no. 80 (1409) 640
11Henry IV, Trin. no. 14, f. 74 (1410) 563
12Henry IV, Michs. no. 15, f. 9 (1410) 554
1Henry VI (Selden Society), 49 (1422-3) 87
1Henry VI (Selden Society), 114 (1422-3) 87
3Henry VI, Hil. no. 33 (1424) 640
7Henry VI, Michs. no. 3 (1428) 641
9Henry VI, Trin. no. 19, f. 23 (1431) 563, 564
10Henry VI, Michs. no. 69, f. 21, (1431) 478
11Henry VI, Hil. no. 10 (1433) 641
11Henry VI, Pasch. no. 1 (1433) 641
11Henry VI, Trin. no. 26 (1433) 639
14Henry VI, no. 58 (1436) 639, 640
19Henry VI, Michs. no. 42 (1440) 413
19Henry VI, Hil. no. 5 (1441) 638
19Henry VI, Pasch. no. 1 (1445) 318
19Henry VI, Pasch. no. 5 (1445) 368
20Henry VI, Hil. no. 2 (1442) 677
20Henry VI, Trin. no. 4 (1442) 641, 643
28Henry VI, Pasch. no. 1 (1450) 130, 435
33Henry VI, Michs. no. 17, f. 41 (1454) 346
33Henry VI, Michs. no. 19 (1454) 574
33Henry VI, Hil. no. 3 (1455) 478
33Henry VI, Trin. no. 12 (1455) 375
37Henry VI, Hil. no. 3 (1459) 202
2Edward IV, Pasch. no. 10, f. 5 (1462) 491
4Edward IV, Pasch. no. 4 (1464) 334, 338
4Edward IV, Pasch. no. 9 (1464) 189
5Edward IV, Long Quinto, f. 33 (1465) 334
6Edward IV, Michs. no. 18, f. 7 (1466) 466
7Edward IV, Pasch. no. 2, f. 2 (1467) 447
7Edward IV, Pasch. no. 16, f. 6 (1467) 574
9Edward IV, Trin. no. 9 (1469) 194
12Edward IV, Pasch. no. 7, f. 2 (1472) 560, 561
12Edward IV, Michs. no. 25, f. 19 (1472) 621
13Edward IV, Pasch. no. 5 (1473) 449
15Edward IV, Pasch. no. 4, f. 24 (1475) 37
15Edward IV, Trin. no. 15, f. 32 (1475) 491
16Edward IV, Pasch no. 7 (1476) 642
17Edward IV, Trin. no. 2, f. 3 (1477) 492
18Edward IV, Pasch. no. 18 (1478) 162
18Edward IV, Trin. no. 8 (1478) 162
18Edward IV, Michs. no. 17 (1478) 376
21Edward IV, Michs. no. 2, f. 11 (1481) 574
22Edward IV, Pasch. no. 18, f. 4 (1482) 581
22Edward IV, Trin. no. 47, f. 20 (1482) 492
22Edward IV, Michs. no. 9, f. 29 (1482) 492
22Edward IV, Michs. no. 21, f. 37 (1482) 57, 189
1Richard III, Michs. no. 2 (1483) 347
2Richard III, Michs. no. 22 (1484) 429
1Henry VII, Hil. no. 3, f. 6 (1486) 492
1Henry VII, Pasch. no. 19 (1486) 386
1Henry VII, Michs. no. 3 203
2Henry VII, Hil. no. 9 (1487) 640
2Henry VII, Hil. no. 15 (1487) 642
3Henry VII, Michs. no. 20 (1487) 642
4Henry VII, Hil. no. 8 (1489) 686
9Henry VII, Michs. no. 4, f. 7 (1493) 492
12Henry VII, Trin. no. 2, f. 24 (1497) 493
13Henry VII, Michs. no. 3, f. 4 (1497) 580
13Henry VII, Michs. no. 10, f. 10 (1497) 492
20Henry VII, Michs. no. 5 (1504) 741
20Henry VII, Michs. no. 18, f. 8 (1504) 642
21Henry VII, Hil. no. 30 (1506) 581, 586
21Henry VII, Trin. no. 5, f. 27 (1506) 467
12Henry VIII, Michs. no. 3 (1520) 643
27Henry VIII, Trin. no. 4, f. 14 (1535) 493
27Henry VIII, Pasch. no. 22, f. 10 (1536) 579
FITZHERBERT, GRAND ABRIDGEMENT:
Corone, 317-319 (1329) 474
334 (1329) 474
Detinue, 46 (1388) 563
59 (1315) 477
Ejectione Firme, 2 (1383) 574
FITZHERBERT, NEW NATURA BREVIUM:
220 H (1498-9) 574
BROOKE, GRAND ABRIDGEMENT:
Action sur le Cas, 5 (1536) 644
105 (1541) 644
Chattels, 23 (1542) 594
Feoffment al Uses, 40, 54 (1532) 581, 599
13 473
34 473
47 489
64 453
79 472
115-136 98, 115
130 (1320) 489
SELECT PLEAS IN MANORIAL COURTS
(Selden Society):
116 (1294) 489
SELECT BILLS IN EYRE (Selden Society):
no. 92 (1292) 640, 642
SELECT CASES IN CHANCERY
(Selden Society):
no. 140 (1456) 742
SELECT CASES IN LAW MERCHANT
(Selden Society):
i. 91 (1312) 665
ii. xcv-xcvi (1349) 474
iii. 93 (c. 1283) 679
SELECT CASES IN EXCHEQUER CHAMBER
(Selden Society):
i. 97 (1442) 641, 642
SELECT CASES IN EXCHEQUER OF PLEAS
(Selden Society):
114-5 (1286) 678
SELECT CASES IN COUNCIL (Selden Society):
33 (1350) 579
38 (1364) 683
SELECT CASES IN STAR CHAMBER
(Selden Society):
i. 38 (1493) 489
Edition: current; Page: [xvi] Edition: current; Page: [xvii]

TABLE OF MODERN CASES
N.B. The report references, which appeared in this table in earlier editions, will be found incorporated in the footnotes in the text.

page
A
Ackroyd v. Smithson (1780) 706
Anon. (n.d.) 600
(1504) 642
(1514) 135
(1527) 619
(1536) 1 Dyer 7a 594
(1536) 1 Dyer 14 348
(1542) 594
(1557) 348
(1561) 592
(1562) 135
(1572) 644
(1613) 495
(1621) 348
(1640) 333
Archer’s Case (1597) 591
Argent v. Darrell (1700) 135
Ash v. Abdy (1678) 330
Ashby v. White (1703) 246, 339
Ashford v. Thornton (1819) 118, 428
Attorney-General v. Hunston (1488) 428
Auditor Curle’s Case 175
B
Baker v. Pierce (1703) 497
Ball v. Hesketh (1697) 653
Bankers’ Case (1690-1700) 59, 175, 246, 702, 704
Bate’s Case (1606) 52, 487
Beauchamp (Lord) v. Croft (1569) 497
Blankard v. Galdy (1693) 246
Bole v. Horton (1670) 349
Bonham’s Case (1610) 51, 243, 325, 337, 338, 339
Boson v. Sandford (1691) 475
Brent’s Case (1575) 593, 599
Bridgman v. Holt (1693) 29
Bright v. Eynon (1757) 135
Brook v. Montague (1606) 497
Brown v. Farndell (1689) 731
Buller v. Crips (1704) 669
Bushel’s Case (1670) 56, 134, 136, 137
Butler v. Bray (1561) 591
Butler and Baker’s Case (1591) 616
C
C, Re, an Infant (1937) 335
Calvin’s Case (1608) 348, 698
Casborne v. Scarfe (1737) 705
Challoner and Bowyer’s Case (1587) 594
Chamberlain v. Harvey (1667) 246
Chapman v. Pickersgill (1762) 339
Charnel’s Case (1592) 495
Cheyney’s (Lord) Case (1591) 562
Chichester (Bp. of) v. Webb (1554) 242, 328
Child v. Baylie (1623) 596, 597
Chudleigh’s Case (1595) 593, 594, 596
Claridge v. South Staffs. Tramway Co. (1892) 480
Clere v. Brook (1573) 716
Clerke v. Martin (1702) 247
Coggs v. Bernard (1703) 247, 264, 479, 482
Colt and Glover v. Bp. of Coventry (1616) 52
Colthirst v. Bejushin (1550) 590
Commendams, Case of (1616) 52
Cook v. Fountain (1672) 702, 703
Corbet’s Case (1600) 339
Cornfoot v. Fowke (1840) 350
Cromwell’s (Lord) Case (1601) 581
Cromwell’s (Lord) Case (1578-1581) 487
Curl’s Case (1727) 705
D
Darnel’s Case (1627) 52, 58
Davis v. Gardiner (1593) 494, 495
Davy v. Pepys (1573) 377, 390, 552, 720
Daw v. Newborough (1715) 602
Day v. Savadge (1614) 337
Delamere v. Burnard (1568) 593
De Libellis Famosis (1605) 487, 489
Dormer v. Parkhurst (1740) 592
Duncomb v. Duncomb (1697) 592
Dunlop Pneumatic Tyre Co., Ltd. v. Selfridge & Co., Ltd. (1915) 655
E
Eastwood v. Kenyon (1840) 654
Edgecomb v. Dee (1670) 349, 363, 377, 647
Edwards v. Burre (1573) 645
Entick v. Carrington (1765) 335
F
Finch’s Case, Sir Moyle (1600) 601, 602
Fitzjames v. Fitzjames (1673) 608
Five Knights’ Case (1627) 52, 58
Floyd v. Barker (1607) 127
Forward v. Pittard (1785) 482
Fry v. Porter (1670) 692
Fuller v. Wilson (1842) 350
Fulmerston v. Steward (1554) 334
G
Gerrard v. Dickenson (1590) 496
Girland v. Sharp (1595) 600
Godden v. Hales (1686) 348
Gould v. Gapper (1804) 333
H
Hadley v. Baxendale (1864) 289
Hales v. Petit (1562) 242
Hamilton’s (Duchess) Case (1712) 337
Hampden’s Case (1637) 52
Hanmer v. Lochard (1612) 690
Harbert’s Case (1584) 690
Harrington v. Horton (1618) 676
Harrison v. Thornborough (1714) 497
Hilder v. Dexter (1902) 330
Hilliard v. Jennings (1700) 740
Hixt v. Goats (1615) 135
Holt v. Astrigg (1607) 495
Hudson v. Benson (1671) 621
Humber Ferry Case (1348) 467, 468, 633
Hyleing v. Hastings (1699) 653
I
Impositions, Case of (1606) 52, 487
J
Jentleman’s Case (1583) 92
K
King v. Lake (1670) 497
Kingston v. Booth (1685) 475
Kinross (Lord), Re (1905) 233
L
Lampet’s Case (1612) 595
Lane v. Cotton (1701) 247
Lee v. Bude &c. Ry. (1871) 337
Leigh v. Kent (1789) 339
Le Neve v. Le Neve (1747) 706
Libellis Famosis (1605) 487, 489
Lickbarrow v. Mason (1787) 418
London, City of, v. Wood (1701) 115, 337
Lutwich v. Mitton (1621) 616
M
Magdalen College Case (1615) 325
Manning’s Case (1609) 595
Manwood v. Burston (1587) 649
Market Overt, Case of (1596) 452, 665
Marshal’s Case, The (1455) 478, 479
Martin d. Tregonwell v. Strachan (1744) 621
Martin v. Boure (1602) 668
Millar v. Taylor (1769) 335
Mines, Case of (1567) 348
Morse v. Slue (1671) 482
Mutford v. Walcot (1700) 246
N
Newis v. Lark (1571) 414
Norfolk’s (Duke) Case (1681) 595, 597, 691, 702, 703
Northampton’s (Earl) Case (1612) 496
Norwood v. Reed (1558) 644, 647
O
Oaste v. Taylor (1612) 668
P
Partridge v. Strange and Croker (1553) 328
Paty’s Case (1705) 213
Pawlett v. Attorney-General (1668) 175
Pelham’s Case (1590) 620
Pells v. Brown (1620) 595, 596
Penn v. Baltimore (1750) 706
Pillans v. Van Mierop (1765) 350, 653, 654, 655
Pinchon’s Case (1612) 647
Prince’s Case, The (1606) 327
Proclamations, Case of (1610) 244
Prohibitions del Roy (? 1608) 49
Purefoy v. Rogers (1669) 591, 594, 596
Purslowe v. Parker (1600) 595
R
R. v. Banbury, Earl of (1695) 337
R. v. Bewdley, Bailiffs of (1712) 339
R. v. de Clifford (1935) 204
R. v. Cumberland, Inhabitants of (1793) 339
R. v. Curl (1727) 704
R. v. Jones (1776) 451
R. v. Keite (1697) 247
R. v. Peters (1758) 346
R. v. Rosser (1836) 136
R. v. Russell (1901) 204
R. v. Seven Bishops (1688) 500
R. v. Shipley (1783) 500, 501
R. v. Toler (1700) 428
R. v. Tutchin (1704) 500
Rann v. Hughes (1778) 350, 654, 655
Read v. Brookman (1789) 211
Reeve v. Long (1695) 591
Reniger v. Fogossa (1550) 130
Russel v. Russel (1783) 608
S
St. Asaph’s (Dean) Case (1783) 500, 501
Salkeld v. Johnson (1848) 335
Sambach v. Dalston (1634) 601, 602
Sanchar’s Case (1612) 430
Seven Bishops’ Case (1688) 500
Shelley’s Case (1581) 250, 544, 562, 564, 565, 591, 596
Shirley’s Case (1604) 52
Shrewsbury’s (Earl) Case (1610) 469
Slade v. Morley (1602) 348, 349
Slade’s Case (1596) 645, 647, 648, 649, 650, 653
Smith v. Brown (1705) 246
Smith v. Tracy (1677) 731
Somers v. House (1693) 497
Sommersett’s Case (1772) 58, 246, 249
Southcote’s Case (1601) 479, 480, 482
Stapilton v. Stapilton (1739) 705
State v. Hall (1894) 128
Stewart v. Lawton (1823) 339
Stockdale v. Hansard (1839) 502
Strangborough v. Warner (1589) 644
T
Taltarum’s Case (1472) 621
Tanistry, Case of (1608) 312
Tey’s Case (1592) 614
Thornborough v. Baker (1675) 703
Throckmorton’s Case (1554) 132
Treyer v. Eastwick (1767) 498
Trueman v. Fenton (1777) 653
Turberville v. Stampe (1697) 247
Tyrrel’s Case (1557) 600, 601, 602
W
Walker’s Case (1587) 348
Warbrook v. Griffin (1610) 648
Wason v. Walter (1868) 502
Webb’s Case (1608) 276
Weleden v. Elkington (1578) 594
Wennall v. Adney (1802) 655
Willion v. Berkley (1562) 556, 557
Winkfield, The (1902) 480
Witherley v. Sarsfield (1690) 66
Wolfe Tone’s Case (1798) 58
Wood v. Gunston (1655) 135
Woodward v. Lord Darcy (1557) 741
Woolmington v. Director of Public Prosecutions (1935) 446
Y
Young v. Ashburnham (1587) 648
Edition: current; Page: [xix]

TABLE OF LAWS AND STATUTES

page
c. 600. Æthelbert, 78, 80 (Succession) 726
c. 690. Ine, 9 (Procedure) 363
31 (Marriage) 628
42 (Damages) 371
57 (Wife’s part) 726
74 (Noxal surrender) 472
c. 890. Alfred, 20 (Liability) 472
41 (Bookland) 525
42 (Blood-feud) 426 (text)
925-946. VI Æthelstan (London gild) 87, 726
941-946. II Edmund, 1, 7 (Blood-feud) 425
946-961. I Edgar (Ordinance of the Hundred) 87
ante 962. III Edgar, 4 (Defamation) 483
c. 962. IV Edgar, 6-11 (Sale) 629
c. 991. II Æthelred, 8-9 (Sale) 629
c. 997. III Æthelred (Law of Wantage)
c. 3 (Presentments) 108, 109, 112
c. 7 (Rehabilitation) 425
c. 14 (Extinction of actions) 376
c. 1000. VI Æthelred, 52 (Liability) 464
1020. I Canute, 5 a (Blood-feud) 425
1027-1034. II Canute
c. 9 (Distress) 603
cc. 12-15 (Royal Pleas) 426
c. 16 (Defamation) 483
c. 17 (Appeal to the King) 87
c. 19 (Hundred) 87, 363, 603
c. 20 (Hundred) 87, 97
c. 68 (Liability) 464
c. 70 (Intestacy) 726 (text)
c. 73 (Morning-gift) 566
1066. 1 William I (London charter) 13, 713, 726
c. 1072. [6] William I (Episcopal law) 12, 88
? William I (Hic Intimatur)
c. 3 (Lord’s liability) 88
c. 10 (Death penalty) 318
Leis Willelme
c. 22 (Murder) 88, 445
c. 27 (Marital property) 313
c. 34 (Succession) 727
Willelmes asetnysse (Trial by battle) 427
1100. 1 Henry I (Coronation Charter) 14, 17, 22, 318, 524
c. 2 (Relief) 524
c. 3 (Marriage portion) 535
c. 4 (Dower: wardship) 535, 545, 566
c. 7 (Wills: intestacy) 727, 728, 736
c. 8 (Criminal penalties) 455
1109-1111. (County and hundred) 82
1135. 1 Stephen (Second charter) 727
1164. 10 Henry II (Constitutions of Clarendon) 17, 18, 111, 319, 439
c. 1 (Advowsons) 17
c. 2 (Alienation of churches) 541
c. 3 (Criminous clerks) 17, 439
c. 6 (Episcopal procedure) 18
c. 7 (Excommunication) 17
c. 8 (Ecclesiastical appeals) 17
c. 9 (Assize Utrum) 17, 111
c. 10 (Excommunication) 17
c. 13 (Liability) 17, 475
c. 15 (Debt) 17, 631
1166. 12 Henry II (Assize of Clarendon) 19, 88, 112, 118, 319, 428
c. 1 (Presentments) 112 (text), 428
c. 2 (Ordeal) 108, 112 (text), 118, 428
c. 4 (Arrest) 112 (text)
c. 12 (Stoken goods) 112 (text), 116, 453
c. 14 (Abjuration) 112 (text), 116, 453
1176. 22 Henry II (Assize of Northampton) 19, 112
c. 4 (Mort d’Ancestor) 18, 112
c. 7 (Eyre jurisdiction) 149
1179. 25 Henry II (Assize of Windsor) 109
1181. 27 Henry II (Assize of Arms) 19
1215. 17 John (Magna Carta) 22, 24, 309, 319, 320, 337, 339, 729
c. 2 (Relief) 524
c. 9 (Crown debts) 390
c. 14 (Writs) 683
c. 17 (Common pleas) 149, 166
c. 18 (Assizes) 104, 165
c. 24 (Pleas of the crown) 93, 102
c. 27 (Intestacy) 728
c. 34 (Writs of praecipe) 356
c. 38 (Suit) 401
c. 39 (Due process) 187
1216. 1 Henry III (Magna Carta) 22, 356
1217. 1 Henry III (Magna Carta) 23, 104, 356
1219. 3 Henry III (Modes of Trial) 119 (text)
1225. 9 Henry III (Magna Carta) 23, 26, 27, 41, 337
c. 1 (The Church) 23 (text)
c. 2 (Relief) 24
c. 3 (Wardship) 24
c. 4 (Waste) 24, 570
c. 5 (Wardship) 24
c. 6 (Marriage) 24
c. 7 (Dower) 24
c. 8 (Crown debts) 24, 390
c. 9 (Towns) 24
c. 10 (Services) 24
c. 11 (Common pleas) 24 (text), 149, 166, 661
c. 12 (Novel Disseisin; Mort d’Ancestor) 24, 103, 159
c. 13 (Darrein Presentment) 29
c. 14 (Amercements) 24
c. 17 Pleas of the Crown) 24, 93, 102
c. 18 (Succession) 744
c. 19 (Purveyance) 24
c. 21 (Purveyance) 24
c. 22 (Felons’ lands) 24
c. 24 (Writ of Praecipe) 24 (text), 356
c. 25 (Weights and Measures) 24
c. 28 (Wager of law) 24, 400
c. 29 (Due process) 24 (text), 187
c. 30 (Foreign Merchants) 24
1225. 11 Henry III c. 31 (Tenancy in chief) 541
c. 35 (County Court) 24, 329
c. 36 (Mortmain) 24
1234. 18 Henry III (Hundred Court) 89
1234. 18 Henry III (Interpretation of Magna Carta) 328
1236. 20 Henry III (Statute of Merton) 91, 235, 319, 320, 339
c. 6 (Marriage) 339
1237. c. 8 (Limitation) 719
c. 10 (Suit of court) 91, 233
1252. 36 Henry III (Watch and Ward) 86
1253. 37 Henry III (Police measures) 86, 87
1256. 40 Henry III (Tenants in chief) 541
1259. 43 Henry III (Provisions of Westminster) 320, 322
c. 14 (Mortmain) 541
c. 16 (False judgment) 156
c. 18 (Royal writs) 156
c. 22 (Murdrum) 445
1267. 52 Henry III (Statute of Marlborough) 26, 30, 31, 81, 322, 361, 541
c. 1 (Distress) 31
c. 2 (Suit of Court) 31
c. 4 (Distress) 31
c. 6 (Fraudulent feoffments) 565, 724
c. 7 (Wardship) 30
c. 9 (Suit and services) 31
c. 15 (Distress) 31
c. 17 (Guardians in socage) 537
c. 20 (False judgment) 81, 93, 156
c. 22 (Writs) 156
c. 23 I (Account) 31, 449
II (Waste) 570
c. 25 (Homicide) 445
c. 28 (Trespass) 377
c. 29 (Entry in the post) 361
1275. 3 Edward I (Westminster the First) 27, 30, 221, 320, 321, 696
c. 12 (Peine forte et dure) 126 (text)
c. 13 (Rape) 451
c. 16 (Distress) 31
c. 17 (Distress) 475, 679
c. 20 (Poaching) 451, 457
c. 21 (Waste) 327, 570
c. 34 (Scandalum magnatum) 485, 486, 488, 489
c. 35 (Distress) 31
c. 39 (Limitation) 312, 719
c. 40 (Voucher) 412
c. 41 (Battle) 117 (text)
c. 45 (Fourcher) 385
c. 48 (Infants) 545
1275. 3 Edward I (Statute of Jewry) 390
1276. 4 Edward I (Bigamists) 296, 322, 411
c. 5 (Bigamy) 322
c. 6 (Warranty) 412
1278. 6 Edward I (Statute of Gloucester) 27, 321, 326, 338, 362
c. 3 (Cui in vita) 569, 617, 618
c. 4 (Cessavit) 31
c. 5 (Waste) 570
c. 7 (Entry) 362, 570
c. 8 (Trespass in county courts) 81, 93
c. 9 (Homicide) 445
c. 10 (Fourcher) 385
c. 11 (Termor) 411, 571, 572
1278. 6 Edward I (Exposition of Statute of Gloucester) 329, 567
1279. 7 Edward I (Mortmain) 27, 31, 321, 541, 578
1281. 9 Edward I (Articulus statuti Gloucestrie) 329
1283. 11 Edward I (Acton Burnell) 30, 321, 391, 392
1284. 12 Edward I (Statute of Wales) 27, 265, 277, 365
1285. 13 Edward I (Westminster II) 27, 31, 321, 326
c. 1 (De Donis) 28, 239, 326, 331, 551 (text), 552, 553, 554, 559, 560, 561, 568, 618, 619, 622
c. 2 (Distress) 31, 475
c. 3 (Cui in vita) 411, 555, 560, 567, 569, 570, 620
c. 4 (Collusive recoveries) 28, 535
c. 5 (Benefices) 678
c. 9 (Mesne) 31
c. 11 (Account) 28, 31, 160, 385, 389, 449, 475, 635
c. 12 (Defamation) 484
c. 14 (Waste) 570
c. 15 (Infants) 545
c. 16 (Wardship) 31, 545
c. 18 (Elegit) 28, 329, 390, 391 (text)
c. 19 (Intestacy) 729
c. 21 (Cessavit) 31
c. 23 (Executors) 377
c. 24 (Consimili casu) 28 (text), 361, 373, 395
c. 30 (Nisi Prius) 29, 166, 417
c. 31 (Bill of exceptions) 29, 403
c. 34 (Rape) 451
c. 35 (Ravishment of ward) 31, 377, 457
c. 41 (Cessavit) 31
c. 43 (Hospitallers and Templars) 475
c. 45 (Scire facias) 392, 614
c. 46 (Common lands) 31
c. 48 (View) 411, 570
1285. 13 Edward I (Statute of Winchester) 29, 86, 88, 167, 321, 430
1285. 13 Edward I (Statute of Merchants) 30, 321, 392, 393
1285. 13 Edward I (Circumspecte Agatis) 485, 631
1290. 18 Edward I (Quia Emptores) 30, 31, 326, 540, 542, 543, 544, 558, 581, 611, 696, 716
1290. 18 Edward I (Quo warranto) 312
1292. 20 Edward I (De vocatis ad warrantiam) 412
1292. 20 Edward I (Attorneys) 218
1292. 20 Edward I (Statute of Waste) 327
1292. 20 Edward I (De defensione juris) 570, 620
1297. 25 Edward I (Magna Carta: Confirmatio Cartarum) 23, 30, 325
1299. 27 Edward I (De finibus levatis) 167, 615
1300. 28 Edward I (Articuli super cartas)
c. 3 (Steward and Marshall) 661
c. 4 (Common pleas) 160
1303. 31 Edward I (Carta mercatoria) 636
1305. 33 Edward I (Ordinance of conspirators) 411
1305. 33 Edward I (Statute of Carlisle) 321, 443
1306. 34 Edward I (De conjunctim feoffatis) 411
1307. 35 Edward I (Statute of Carlisle) 321
1311. 5 Edward II (The Ordinances) 31, 155, 161, 322
1322. 15 Edward II (Statute of York) 32, 326
Undated and doubtful statutes
Chapters of the eyre 103, 259
Praerogativa Regis 542
1327. 1 Edward III, st. 1, c. 3 (Executors) 378
c. 4 (Trial by battle) 123
st. 2, c. 11 (Jurors) 127
c. 17 (Indictments) 429
1328. 2 Edward III (Statute of Northampton)
c. 2 (Pardons) 167, 445
c. 8 (Independence of courts) 158
1330. 4 Edward III, c. 2 (Justices of peace) 167
c. 7 (Executors) 378
1331. 5 Edward III, c. 7 (Attaints) 386
c. 9 (Liberties) 187
c. 10 (Bribery) 474
1335. 9 Edward III, st. 1, c. 3 (Fourcher) 385, 741
1340. 14 Edward III, st. 1, c. 4 (Englishry) 87, 445
c. 5 (Delays of justice) 158
c. 6 (Jeofail) 397
c. 18 (Voucher) 412
1344. 18 Edward III, st. 2, c. 2 (Keepers of the Peace) 168
c. 5 (No exigents in trespass) 471
1346. 20 Edward III, c. 6 (Sheriffs) 183
1349. 23 Edward III (Labourers) 32, 323
1351. 25 Edward III (Confirmation of the charters) 32
1351. 25 Edward III, st. 2 (Statute of Labourers) 32, 168
1351. 25 Edward III, st. 4 (Provisors) 338
1352. 25 Edward III, st. 5
c. 2 (Treason) 443
c. 3 (Jurors) 127
c. 4 (Due process) 187
c. 5 (Executors of executors) 742
c. 17 (Outlawry) 385, 389
1352. 25 Edward III, st. 6 (Statutum pro clero)
c. 4 (Clerks convict) 439, 441
c. 9 (Fees of church courts) 742
1353. 27 Edward III, st. 1, c. 1 (Provisors) 183
st. 2 (Statute of Staples) 393, 474, 660
1354. 28 Edward III, c. 8 (Attaint) 386
1357. 31 Edward III, st. 1, c. 11 (Administrators) 729
c. 12 (Exchequer Chamber) 162
1361. 34 Edward III, c. 1 (Justices of the peace) 168
c. 7 (Attaint) 132
c. 16 (Fines) 619
1362. 36 Edward III, st. 1, c. 9 (Law enforcement) 183 (text)
c. 15 (Pleading in English) 400
1363. 37 Edward III, c. 18 (Due process) 183, 187
1364. 38 Edward III, st. 1, c. 5 (Wager of Law) 116
st. 2 (Premunire) 328
c. 2 (Provisors) 183
1368. 42 Edward III, c. 3 (Due process) 187
c. 6 (Justices of the peace) 168
1376. 50 Edward III (Wager of Law) 116, 160
1377. 51 Edward III, c. 6 (Uses) 578
1377. 1 Richard II, c. 9 (Uses) 579
1378. 2 Richard II, st. 1, c. 5 (Defamation) 486
1384. 8 Richard II, c. 2 (Civil procedure) 259
1388. 12 Richard II, c. 11 (Scandalum magnatum) 486
1389. 13 Richard II, st. 1, c. 5 (Admiralty) 662
1390. 13 Richard II, st. 2, c. 1 (Pardons) 446
1391. 15 Richard II, c. 3 (Admiralty) 662
c. 5 (Uses) 578, 581
c. 12 (Law enforcement) 183, 186
1393. 16 Richard II, c. 2 (Councils of lords) 186
1394. 17 Richard II, c. 6 (Damages in chancery) 188
1398. 21 Richard II, c. 3 (Uses) 578
1399. 1 Henry IV, c. 19 (Appeals in parliament) 205
1402. 4 Henry IV, c. 7 (Uses) 579
c. 18 (Attorneys) 218
1404. 5 Henry IV, c. 8 (Wager of law) 633
c. 14 (Final concords) 614
1413. 1 Henry V, c. 1 (Elections) 337
c. 5 (Additions) 338, 397, 429
1414. 2 Henry V, st. 1, c. 4 (Labourers) 438
c. 9 (Chancery) 188
1429. 8 Henry VI, c. 4 (Liveries) 438
c. 12 (Indictments) 429
c. 14 (Chancery) 188
1437. 15 Henry VI, c. 3 (Safe conduct) 339
c. 4 (Chancery) 188
1450. 29 Henry VI, c. 2 (Admiralty) 662
1453. 31 Henry VI, c. 2 (Chancery) 188
c. 4 (Admiralty) 662
1455. 33 Henry VI, c. 1 (Chancery) 188
1461. 1 Edward IV, c. 2 (Sheriff’s tourn) 90
1484. 1 Richard III, c. 1 (Uses) 579
c. 5 (Uses) 580
c. 7 (Fines) 619
1485. 1 Henry VII, c. 1 (Uses) 579
1487. 3 Henry VII, c. 1 (Pro Camera Stellata) 46, 182, 183, 188, 428
c. 4 (Uses) 580
1490. 4 Henry VII, c. 13 (Benefit of clergy) 440
c. 17 (Uses) 580
c. 24 (Fines) 619
1495. 11 Henry VII, c. 1 (Treason) 444
c. 3 (Statutory misdemeanours) 169, 183, 438
c. 20 (Entry by reversioner) 362, 617
1497. 12 Henry VII, c. 7 (Petty treason) 446
1504. 19 Henry VII, c. 9 (Outlawry) 385, 389, 471
c. 15 (Uses) 580
c. 28 (Pardons) 325
1510. 1 Henry VIII, c. 6 (Summary trials) 438
1529. 21 Henry VIII, c. 1 (Wilful murder) 446
c. 2 (Sanctuary) 431
c. 5 (Administration) 729
c. 7 (Larceny) 450
c. 11 (Writ of restitution) 474
1529. 21 Henry VIII, c. 15 (Recoveries) 571
c. 20 (Law enforcement) 183
1531. 22 Henry VIII, c. 14 (Juries) 433
1532. 23 Henry VIII, c. 1 (Wilful murder) 446
c. 3 (Attaint) 132
c. 12 (Uses) 582
1533. 24 Henry VIII, c. 13 (Sumptuary regulations) 225
1534. 25 Henry VIII, c. 19 (Ecclesiastical appeals) 185
c. 22 (Treasonable printing) 498
1534. 26 Henry VIII, c. 1 (Act of Supremacy) 43, 185
c. 4 (Jurors) 133
c. 13 (Forfeiture) 713
1536. 27 Henry VIII, c. 10 (Statute of Uses) 46, 299, 568, 579, 585, 587, 588, 589, 592, 598, 599, 601, 615, 616, 617
c. 16 (Statute of Enrolments) 586, 588, 600, 615, 616
c. 25 (Poor law) 86
c. 27 (Court of Augmentations) 174
1536. 28 Henry VIII, c. 7 (Royal succession) 325
c. 15 (Admiralty) 128, 662
c. 36 (Fine with proclamations) 619, 662
1539. 31 Henry VIII, c. 8 (Proclamations) 45, 182, 325
c. 10 (Precedence) 584
c. 13 (Dissolution) 43
c. 14 (Six Articles) 43
1540. 32 Henry VIII, c. 1 (Statute of Wills) 46, 587, 616, 740, 744
c. 2 (Limitation) 719
c. 12 (Sanctuary) 431
c. 14 (Admiralty) 662
c. 30 (Pleading) 414
c. 31 (Recoveries) 620
c. 45 (Court of First Fruits) 174
c. 46 (Court of Wards) 175
1541. 33 Henry VIII, c. 22 (Wards and Liveries) 175
c. 39 (Court of Surveyors) 175
1543. 34 & 35 Henry VIII, c. 1 (Interludes) 498
c. 5 (Wills) 587, 589
c. 23 (Proclamations) 45
1544. 35 Henry VIII, c. 2 (Treason) 128
c. 6 (Jurors) 127
c. 12 (Tithes in London) 325
1545. 37 Henry VIII, c. 22 (Juries) 318
1547. 1 Edward VI, c. 2 (Forfeiture) 713
c. 12 Proclamations) 45, 440
1549. 2 & 3 Edward VI, c. 1 (Uniformity) 43
c. 24 (Criminal Law) 128
1552. 5 & 6 Edward VI, c. 11 (Treason) 437, 713
1553. 7 Edward VI, c. 3 (Court of Augmentations) 175
1554. 1 Mary, sess. 3, c. 1 (Queen regnant) 337
1554. 1 & 2 Philip & Mary, c. 3 (Scandalum magnatum) 486
c. 9 (Treasonable prayers) 486
c. 10 (Forfeiture) 713
c. 13 (Examination) 432
1555. 2 & 3 Philip & Mary, c. 4 (First fruits) 325
c. 10 (Examination) 432, 436
1558. 4 & 5 Philip & Mary, c. 8 (Guardianship) 545
1559. 1 Elizabeth, c. 6 (Scandalum magnatum) 486
1563. 5 Elizabeth, c. 3 (Poor law) 86
c. 4 (Labourers) 325
c. 9 (Witnesses) 130, 436
1571. 13 Elizabeth, c. 1 (Treason) 498
1572. 14 Elizabeth, c. 8 (Recoveries) 620
1576. 18 Elizabeth, c. 3 (Poor law) 494
c. 7 (Benefit of clergy) 440
1585. 27 Elizabeth, c. 5 (Demurrer) 414
c. 6 (Juries) 127
c. 8 (Exchequer Chamber) 171, 172
1589. 31 Elizabeth, c. 1 (Exchequer Chamber) 171
c. 4 (Theft from arsenals) 436
1597. 39 Elizabeth, c. 5 (Charities) 325
1601. 43 Elizabeth, c. 4 (Charitable uses) 622
c. 6 (Damages) 173
c. 12 (Insurance court) 662
1605. 3 James I (Articuli Cleri) 333, 348
1606. 4 James I, c. 4 (Felonies committed in Scotland) 436
1624. 21 James I, c. 1 (Charities) 325
c. 6 (Benefit of clergy) 440
c. 13 (Jeofails) 127
c. 14 (General issue) 414
c. 16 (Damages in slander) 174, 495
c. 19 (Bankrupts) 622
1628. 3 Charles I, c. 1 (Petition of Right) 53
1640. 16 Charles I, c. 7 (Dissolution of Parliament) 53
1641. c. 10 (Star Chamber) 53, 193, 335
c. 11 (High Commission) 53, 183
c. 14 (Ship Money) 53
c. 37 (Irish rebels) 199
1660. 12 Charles II, c. 3 (Pleading) 415
c. 24 (Military tenures) 55, 534, 589
1661. 13 Charles II, st. 2, c. 2 (Bail) 387
1663. 15 Charles II, c. 17 (Bedford Level) 414
1664. 16 Charles II, c. 2 (Exchequer Chamber) 172
1664. 16 & 17 Charles II, c. 8 (Venue) 87, 127
1668. 19 & 20 Charles II, c. 9 (Exchequer Chamber) 172
1670. 22 & 23 Charles II, c. 9, s. 136 (Damages) 174
c. 10 (Statute of Distributions) 227, 300, 730
1677. 29 Charles II, c. 3 (Statute of Frauds) 55, 56, 57, 300, 328, 589, 612, 613, 648, 653, 654, 665, 740
1679. 31 Charles II, c. 2 (Habeas Corpus) 57, 58, 72
1685. 1 James II, c. 17 (Distribution) 731
1689. 1 William III & Mary II, sess. 2, c. 2 (Bill of Rights) 59 (text), 63
1690. 2 William III & Mary II, sess. 1, c. 5 (Distress) 383, 603
1691. 3 William III & Mary II, c. 9 (Accessories) 440, 453
1692. 4 William III & Mary II, c. 2 (Wills) 745
1696. 7 & 8 William III, c. 3 (Treason) 435, 437, 444
c. 38 (Wills in Wales) 745
1697. 8 & 9 William III, c. 11 (Vexatious suits) 689
1699. 10 William III, c. 22 (Contingent remainders) 591
1701. 12 & 13 William III, c. 2 (Act of Settlement) 59, 60, 63
1702. 1 Anne, st. 2, c. 9 (Witnesses) 436
1704. 2 & 3 Anne, c. 5 (Wills) 745
1705. 3 & 4 Anne, c. 8 (Promissory notes) 247, 669
1706. 4 & 5 Anne, c. 3 (Pleading) 211, 410, 414, 619
1707. 6 Anne, c. 9 (Benefit of clergy) 440
c. 11 (Act of Union) 201
c. 31 (Receiving stolen goods) 453
1709. 8 Anne, c. 21 (Copyright Act) 335, 499
1719. 6 George I, c. 5 (Irish appeals) 201
1722. 9 George I, c. 22 (Blackmail) 451
1724. 11 George I, c. 18 (Wills in London) 745
c. 39 (Insurance Companies) 415
1729. 2 George II, c. 23 (Solicitors) 227
1730. 3 George II, c. 2 (Mutiny) 689
c. 30 (Master of the Rolls) 209, 689
1731. 4 George II, c. 26 (Records in English) 400
1750. 23 George II, c. 33 (Middlesex county court) 208
1752. 25 George II, c. 6 (Wills) 740
1753. 26 George II, c. 33 (Marriage Act) 704
1772. 12 George III, c. 20 (Standing mute) 126
1792. 32 George III, c. 60 (Fox’s Libel Act) 138, 249, 500
1793. 33 George III, c. 13 (Commencement of Statutes) 328
1795. 36 George III, c. 7 (Treasonable Practices Act) 71
c. 8 (Seditious Meetings Act) 71
1799. 39 George III, c. 85 (Embezzlement) 450
1807. 47 George III, session 2, c. 74 (Creditors’ remedies) 724
1812. 52 George III, c. 63 (Embezzlement) 450
1813. 53 George III, c. 24 (Vice-Chancellor) 209
1813. 53 George III, c. 100 (Audit of Accounts) 128
1815. 55 George III, c. 42 (Juries) 707
1819. 59 George III, c. 46 (Battle) 118, 428, 707
1823. 4 George IV, c. 54 (Blackmail) 451
1826. 7 George IV, c. 64 (Criminal Law) 128
1827. 7 & 8 George IV, c. 27 (Hundred) 88
c. 28 (Benefit of clergy) 126, 441
c. 29 (Larceny) 450, 453
c. 31 (Riot Damage) 88
1828. 9 George IV, c. 17 (Toleration) 707
c. 31 (Petty treason) 444
1829. 10 George IV, c. 7 (Catholic Emancipation) 707
1830. 11 George IV & 1 William IV, c. 70 (Exchequer Chamber) 210
1831. 1 & 2 William IV, c. 56 (Bankruptcy) 209
1832. 2 & 3 William IV, c. 39 (Uniformity of Process Act) 74, 386, 387
c. 45 (Reform Act) 74, 501, 707
c. 92 (Privy Council appeals) 213
1833. 3 & 4 William IV, c. 42 (Civil Procedure Act) 74, 115, 416
c. 74 (Fines & Recoveries Act) 75, 622
c. 94 (Chancery Reform Act) 209
c. 104 (Administration of Estates Act) 75, 724
c. 105 (Dower Act) 568, 724
c. 106 (Inheritance Act) 75, 725
1835. 5 & 6 William IV, c. 76 (Municipal Corporation Act) 74
1837. 6 & 7 William IV, c. 114 (Felony trials) 435
1837. 7 William IV & 1 Victoria, c. 26 (Wills Act) 617, 740
1840. 3 & 4 Victoria, c. 9 (Parliamentary Papers Act) 502
1841. 4 & 5 Victoria, c. 22 (Benefit of clergy) 441
1841. 5 Victoria, c. 5 (Chancery) 210
1843. 6 & 7 Victoria, c. 96 (Libel) 501
1846. 9 & 10 Victoria, c. 95 (County Courts Act) 105, 208, 416
1848. 11 & 12 Victoria, c. 42 (Sir John Jervis’ Act) 432, 437
c. 78 (Crown Cases Reserved) 213
1851. 14 & 15 Victoria, c. 83 (Chancery Appeals) 210
1852. 15 & 16 Victoria, c. 76 (Common Law Procedure Act) 374
1854. 17 & 18 Victoria, c. 125 (Common Law Procedure Act) 211, 416
1856. 19 & 20 Victoria, c. 16 (Central Criminal Court) 128
1857. 20 & 21 Victoria, c. 54 (Larceny) 385, 450
c. 77 (Court of Probate) 741
1860. 23 & 24 Victoria, c. 38 (Law of Property) 593
1861. 24 & 25 Victoria, c. 96 (Larceny Act) 450, 451
1870. 33 & 34 Victoria, c. 23 (Forfeiture Act) 431
1873. 36 & 37 Victoria, c. 66 (Judicature Act) 211
1875. 38 & 39 Victoria, c. 77 (Judicature Act) 212
1876. 39 & 40 Victoria, c. 59 (Appellate Jurisdiction Act) 212, 233
1877. 40 & 41 Victoria, c. 33 (Contingent Remainders Act) 592
1881. 44 & 45 Victoria, c. 60 (Newspapers) 502
c. 68 (Judicature Act) 212
1882. 45 & 46 Victoria, c. 38 (Settled Land Act) 623
1884. 47 & 48 Victoria, c. 58 (Prosecution of Offences Act) 230
1886. 49 & 50 Victoria, c. 38 (Riot Damages Act) 88
1888. 51 & 52 Victoria, c. 43 (County Courts) 208
c. 64 (Libel) 502
1889. 52 & 53 Victoria, c. 63 (Interpretation Act) 326
1891. 54 & 55 Victoria, c. 51 (Slander of Women Act) 498
1897. 60 & 61 Victoria, c. 65 (Land Transfer Act) 724
1898. 61 & 62 Victoria, c. 36 (Evidence) 437
1907. 7 Edward VII, c. 23 (Criminal Appeal Act) 213
1908. 8 Edward VII, c. 3 (Prosecution of Offences Act) 230
1916. 6 & 7 George V, c. 50 (Larceny Act) 450
1925. 15 George V, c. 23 (Administration of Estates Act) 536, 734
1926. 16 & 17 George V, c. 19 (Re-election of Ministers Act) 60
1933. 23 & 24 George V, c. 36 (Administration of Justice, Miscellaneous Provisions, Act) 112
1934. 24 & 25 George V, c. 41 (Law Reform (Miscellaneous Provision) Act) 378
1938. 1 & 2 George VI, c. 45 (Inheritance (Family Provision) Act) 746
1948. 11 & 12 George VI, c. 58 (Criminal Justice Act) 204
Edition: current; Page: [1]

A Concise History of the Common Law

BOOK ONE: A GENERAL SURVEY OF LEGAL HISTORY

PART 1: THE CROWN AND THE STATE

Edition: current; Page: [2]

SUMMARY

  • A General Survey of Legal History - - - page 3
  • chapter 1. The Anglo-Saxon Period: Races and Religion - 6
  • chapter 2. The Conquest to Henry II: The Beginnings of Administration - - - - - - 11
  • chapter 3. The Great Charters: Law separates from Administration - - - - - - 20
  • chapter 4. Edward I to Richard II: Statutes and Social Revolution - - - - - - - 27
  • chapter 5. The Fifteenth Century: The Problem of Enforcement - - - - - - - 35
  • chapter 6. The Tudors: Renaissance, Reformation and Reception - - - - - - - - 39
  • chapter 7. The Stuarts: Struggle for the Supremacy of Law - - - - - - - - 48
  • chapter 8. The Eighteenth Century: Industrial Revolution 65
  • chapter 9. The Nineteenth Century: Liberalism and Reform - - - - - - - - 75
Edition: current; Page: [3]

A GENERAL SURVEY OF LEGAL HISTORY

SUMMARY page
The Roman Empire 3
The Rise of Christianity 4

Legal history is a story which cannot be begun at the beginning. However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing upon the later history. Moreover, the further back we push our investigations, the scantier become our sources, and the more controversial and doubtful their interpretation. The comparatively short period of recorded history based upon documents soon leads us back to the immensely long ages of which we know nothing save through the methods of the archaeologist. Into this enormous field of pre-history we shall not venture, although from time to time it will be necessary to refer to it when the problems of history raise immediate questions of pre-history. Indeed, even the relatively brief span of written history is too complex and too diverse for treatment here. The age which saw the first beginnings of English history, witnessed also the decline of Roman law which had run a course of a thousand years, making priceless contributions to civilisation. But behind the Roman system were others still more ancient—Greek, Semitic, Assyrian, Egyptian—all with long histories of absorbing interest.1 These remoter systems are all being studied with great skill by many modern experts, and the list of them is still growing. Recent researches, for example, have brought to light much material on the law of the Hittites, who were little more than a name to us a generation ago.

THE ROMAN EMPIRE

For the purposes of this concise history we can begin with the advent of Christianity. Itself the culmination of several centuries of religious and ethical thinking in Judaea, it entered a world which was dominated by legal and political ideas which were in turn the result of centuries of political and juristic experience. Rome had reached the peak of its greatness. An Empire which spread over the entire civilised world, and which owed so much to the ideas of law and of government, seemed to be almost a revelation of the divine mission of the State. Government was the sacred destiny of the Roman people. To others might be left the vocations of art, of literature, of science; the Roman’s part was to rule the nations, to impose the Roman peace and respect for law upon the Edition: current; Page: [4] barbarian, sparing the submissive with statesmanlike tolerance, and crushing resistance with ruthless force. This immense Empire had been acquired through the energy of Roman armies, and preserved by the diligence of Roman administrators, but the time came when both services betrayed their master. Generals indulged in the game of making and deposing emperors; provincial governors exploited their subjects, a hierarchy of functionaries grew up such as China possessed, and as part of the system of taxation imposed upon the people, a similar system of caste from which escape was almost impossible. In the meantime, a steady infiltration of barbarian blood changed the character, the culture, and finally the language of the ruling classes.1 By slow and almost imperceptible degrees the ties that bound together the Roman Empire dissolved, and the mysterious and complicated fall of Rome became complete.

“The two greatest problems in history, how to account for the rise of Rome, and how to account for her fall, never have been, perhaps never will be, thoroughly solved.”2

THE RISE OF CHRISTIANITY

While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognise some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real Edition: current; Page: [5] position of the King (who is subject, he says, to God “and the law”), the Puritan revolution—and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power. It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

“The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine.”1

Indeed, while the organisation of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life.2 Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the power of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy.

Edition: current; Page: [6]

CHAPTER 1: THE ANGLO-SAXON PERIOD: RACES AND RELIGION

SUMMARY page
The Coming of the Romans 6
The English Conquest 7
The Advent of Christianity 8
England and the Danes 9

THE COMING OF THE ROMANS

While this was happening at the heart of the Empire, many of the outskirts were witnessing a process such as went on in Britain. The conquest of Gaul inevitably drew the attention of Roman generals to Britain, whose population had intimate ties of race, language and sympathy with the Gauls. At times the Britons seem to have sent assistance to their Celtic kinsmen on the continent, and so attracted the wrath of Rome. Finally in ad 43 the systematic conquest of the island was begun by Agricola, and for the next three and a half centuries Britain was under Roman rule. The character of this occupation cannot be better described than in the words of Haverfield, the scholar who has shed most light on this difficult and obscure period:

“From the standpoint alike of the ancient Roman statesman and of the modern Roman historian, the military posts and their garrisons formed the dominant element in Britain. But they have left little permanent mark on the civilisation and character of the island. The ruins of their forts and fortresses are on our hill-sides. But, Roman as they were, their garrisons did little to spread Roman culture here. Outside their walls, each of them had a small or large settlement of womenfolk, traders, perhaps also of time-expired soldiers wishful to end their days where they had served. But hardly any of these settlements grew up into towns. York may form an exception. . . . Nor do the garrisons appear greatly to have affected the racial character of the Romano-British population.”1

Britain was prosperous for a time. Then towards the middle of the fourth century troubles began; invasions from the north by the Picts and along the east coast by the Saxons grew more and more serious, until

“finally, the Great Raid of Barbarians who crossed the Rhine on the winter’s night which divided 406 from 407, and the subsequent barbarian attack on Rome itself, cut Britain off from the Mediterranean. The so-called ‘departure of the Romans’ speedily followed. This departure did not mean any great departure Edition: current; Page: [7] of persons, Roman or other, from the island. It meant that the central government in Italy now ceased to send out the usual governors and other high officials and to organise the supply of troops. No one went: some persons failed to come.”1

It is significant that sites which have been thoroughly explored fail to reveal Roman coins of later date than the opening years of the fifth century.2 Before these invaders, towns were abandoned; Roman speech and boundaries vanished: only the massive foundations of the roads survived. The Britons retired to the hills of Wales and Scotland and there resumed their Celtic culture and speech, and became, in the fulness of time, one of the springs of mediaeval art and learning.

THE ENGLISH CONQUEST

Of the three tribes who constituted the bulk of the invaders, two—the Angles and the Saxons—are hardly distinguishable either in language or customs, both coming, moreover, from the narrow neck of land which now separates Denmark from the mainland. From the end of the third century the Saxons appear in history as raiders and pirates, although the Angles, on the other hand, drop back into obscurity (as far as Roman writers are concerned) ever since Tacitus mentioned them in the beginning of the second century until the sixth century, when we read of them in England. They have left a mass of epic poetry, however, which gives some idea of the life their chieftains led; indeed, the similarities of this literature with that of Norway, Sweden and Germany suggest an international culture covering Northern Europe. The material remains of these tribes while still on the mainland, which have been unearthed, show a high degree of perfection in weaving, and that “the warriors of the period were armed in a manner not substantially improved upon for many centuries afterwards”. Many of their swords bear the marks of Roman manufacturers. They had also a Runic alphabet of their own devising, which long remained in use. Of their religion little is known with certainty; Woden, Thunor and Frig have given us the names of Wednesday, Thursday and Friday, but the surviving legends are too late to tell us much about early English culture and history. As early as the Bronze Age they had been familiar with the plough.3 The invaders must not be regarded as complete savages, therefore. Of the Jutes much less is known. They were the dominant settlers in Kent and it is significant that the early Kentish laws have marked peculiarities of social structure, although the language differs but slightly. It is certainly curious how Kent from the beginning and all through the middle ages preserved peculiar local variants, but it must not be assumed too confidently that all this necessarily relates to an original difference in the Jutish invaders. The geographical position of Kent at the gateway of Edition: current; Page: [8] England has in fact given it an exceptional position in the religious, military and commercial, as well as in the legal, history of the country, but this position was won after, rather than before, the Conquest.1

The invasion and settlement of the country by these tribes occupies about two centuries (roughly from 400 to 600). In the end, a number of different kingdoms were established—at least ten of them are known with certainty to have existed at various dates—and for the next two centuries the main themes are the spread of Christianity and the growth of unity in place of these warring kingdoms. It is true that the later years of the Roman occupation had seen the first introduction of Christianity into the island, and that an important and vigorous church had been organised, but the English invaders crushed the British Christians and maintained their own ancient mythology. England therefore had to be converted anew, and the year 597 was a momentous one, for the arrival of St Augustine established contact between the English tribesmen and the Roman Church which was now (under St Gregory I, “the Great”) definitely entering upon its mediaeval task of establishing one supreme spiritual authority in Europe. Gregory “was a Roman of the Romans, nurtured on traditions of Rome’s imperial greatness, cherishing the memories of pacification and justice, of control and protection”.2

THE ADVENT OF CHRISTIANITY

The results of the re-introduction of Christianity were of the highest importance. The existing tribal organisation must have seemed weak and inefficient to the missionaries coming from such well-organised States as existed on the continent, and very soon we see the results of their teaching in the enhanced value placed upon the monarchy, and in the tendency towards larger national units. After long years of warfare the petty tribal units were replaced by a few large kingdoms ruled and administered by kings who watched European methods. Soon, too, they learned the Roman art of taxation, which consisted in dividing the land into units of equal assessment instead of equal area (calling them in English “hides”).3 Again, the advent of the clergy meant the introduction of a new class into English society, and so a new law of status had to be devised for their protection. Consequently laws were made, and, “in the Roman style”,4 were written down. It is possible that legislation was occasionally effected upon other subjects as well. And finally, the Church brought with it moral ideas which were to revolutionise English law. Christianity had inherited from Judaism an Edition: current; Page: [9] outlook upon moral questions which was strictly individualistic. The salvation of each separate soul was dependent upon the actions of the individual. This contrasted strongly with the custom of the English tribes which looked less to the individual than to the family group of which the individual formed a part. Necessarily such a system had little place for an individualistic sense of morals, for the group, although it was subjected to legal liability, can hardly be credited with moral intention in the sense that an individual can. With the spread of Christianity all this slowly changed. First, responsibility for actions gradually shifted from the whole group to the particular individual who did the act; and then the Church (and later the law) will judge that act, if necessary, from the point of view of the intention of the party who committed it.

ENGLAND AND THE DANES

The Anglo-Saxon period is very long, and a great deal of development took place in it.1 Beginning for practical purposes about 597 (the landing of St Augustine) we have a continuous stream of legal sources which are definitely Anglo-Saxon in character down to the Norman Conquest in 1066 and even later.2 There are treatises dating about the year 1118 which are still typically Anglo-Saxon in content and outlook.3 We may therefore place the limits of this period roughly and in round figures between 600 and 1100, a period of five hundred years. The length of this age can be realised by remembering that five hundred years is the interval between Bracton and Blackstone, between Chaucer and Kipling, and between the battles of Agincourt and the Marne. In so long a period we must omit details. The one fact of capital importance besides the growing unification of England, is the coming of the Norsemen and Danes, for it has left definite traces upon our history. The very word “law” is not English but Norse.

Scandinavia was peopled by tribes who were as astute in trade as they were fierce in war. The discoveries of English coins in the islands of the Baltic, together with Arabian coins from Bagdad and Samarcand (which had reached the Baltic through Russia), are witness to the distant foreign commence of the Norse. During the ninth century, for reasons unknown, the Norse became unusually active on the sea, and a series of Edition: current; Page: [10] maritime raids resulted in the colonisation of Iceland, parts of Ireland and Scotland, the Orkneys, Shetlands, Hebrides, and portions of Northern France (thenceforward to be known as Normandy). A Scandinavian tribe of “Rus” gave its name (although not its language) to Russia, while a few even penetrated to the Mediterranean. In England, after fierce fighting, they succeeded in retaining from King Alfred almost the whole eastern half of the kingdom (879), and more than a century after his death a Danish dynasty united under a single ruler—the great King Cnut (1016-1035)—England, Norway and Denmark. Cnut’s laws were long popular in England, and in after years men looked back with respect to his reign, trying to revive his legislation. The Danes left a permanent mark on that part of the country where they had longest ruled. They independently developed a sort of grand jury, of which we shall speak later; they arrived earlier than the rest of the country at the stage where land could be freely bought and sold; they had a marked tendency to form clubs and guilds; their peasantry were less subject to the lords; borough institutions seem to have flourished peculiarly under their rule.1

The death of Cnut and the division of his Empire brings us to the accession of St Edward the Confessor (1043-1066), who throughout the middle ages was the national hero of the English when they resented Norman influence. (Hence it is that a large body of “Laws of Edward the Confessor” was forged as a patriotic weapon against the Norman dynasty.) In fact, the antithesis was false, and the spread of foreign culture in England increased immensely during his reign, which in some respects seems a sort of peaceful Norman conquest. The disputed succession on his death brought William the Conqueror in 1066 and Norman arms finished what Norman civilisation had already begun.

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CHAPTER 2: THE CONQUEST TO HENRY II: THE BEGINNINGS OF ADMINISTRATION

SUMMARY page
The Conquest andDomesday Book 11
Church and State 14
Henry I’s Reforms 15
Henry II’s Empire 16
Constitutions of Clarendon 17
The Exchequer 18
The Place of Henry II 19

The greatest result of the Norman Conquest was the introduction of precise and orderly methods into the government and law of England. The Norse invaders who had settled in Normandy had made it in a century and a half (911-1066) the best-ruled state in Europe, and the gifts for strong administration and for orderly accounting and finance which had been displayed in the duchy were to have fuller opportunities in the conquered kingdom. William the Bastard had been Duke of Normandy since 1035, and by 1047 (when he was twenty) the turbulent barons were beginning to feel his strength. Nearly twenty years of hard work in Normandy preceded the expedition to England, and in that interval William had imposed some sort of discipline upon his baronage, and had finally made peace with the Church (after a long quarrel) through the help of Lanfranc, whom he afterwards made Archbishop of Canterbury. Personally a devout Christian, he yet insisted that the Church should keep the place which he assigned to it, and in fact he secured an effective control over its policy, notably in appointments to the higher dignities. Then, too, he had developed a remarkably good financial organisation, the “Chamber” (camera), and although the duchy revenues were not particularly large, yet there was clearly the machinery ready to collect revenue energetically and to control its disposition.

THE CONQUEST AND “DOMESDAY BOOK”

Such was the position of Duke William when he undertook the desperate adventure of invading England by transporting 5,000 men and 2,500 horses across the Channel, an astonishing performance in those days. The Battle of Hastings (1066) and the death of King Harold quickly settled him upon the throne of his new kingdom. Reforms began at once. The casual “treasure” of the Anglo-Saxon kings was reorganised as an Exchequer on business lines, and was used to Edition: current; Page: [12] keep a firm hold upon the sheriffs and local government generally. As for the Church, he continued the Norman attitude of strengthening the Church internally, enriching it and maintaining its discipline (newly reformed by the great Pope Gregory VII), although at the same time restricting its political power. This strongly contrasted with the preconquest state of things when the bishops sat in all the courts and mingled ecclesiastical and secular business. William, by an ordinance,1 insisted that the bishops should not transact ecclesiastical business in the hundred courts, but should hold their own Courts Christian for the purpose; and from that day to this the Church has maintained its separate system of courts administering canon law. Church and State which had been inextricably connected in the Anglo-Saxon age henceforth were strictly separate, a policy which happened to coincide with the Church’s own ambitions as well as with William’s. His last years were absorbed in the great survey of the kingdom which is known as Domesday Book. The original two volumes together with the chest constructed for their preservation are still in the Public Record Office in London, where Domesday Book holds an honoured place as the oldest public record. Indeed, during the middle ages it was so respected that it was called simply “the record”, so great was its authority. The land was described county by county, village by village, the owners and their subtenants were listed and their holdings valued, even the farm stock was recorded, with a view to settling clearly the rights of the Crown and the taxable resources of the country. In several cases a few precious lines will summarise the customs of a county or city, and so give us an insight into the local law in force.2 Most valuable information can be extracted from it as to the state of freedom or serfdom in different parts of the country, and it is possible that the strict insistence of the Exchequer officials upon the letter of Domesday Book, and their refusal to allow it to be questioned, was the beginning of the notion of “record” as a technical thing. From this one book the idea of certain officially compiled documents being beyond question seems to have spread to the rolls of the Exchequer, and thence to the rolls of the courts of law. If this conjecture is true, then “Records” must be regarded as financial in origin, and only later becoming judicial.3

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Another effect of Domesday Book was to assert the chain of feudal relationships and to assure the overlordship of the Crown. Thus the title of every piece of land in England could be expressed in the formula that A holds it of his feudal lord B, who holds of C, who holds of —— the King. This insistence of the Norman and succeeding kings that they were the undisputed lords, direct or indirect, of every piece of land in the country is of the gravest importance, for it provided a sure foundation for the growth in later times of the common law. For this and many other reasons too technical to mention here, it has been said that “If English history is to be understood, the law of Domesday Book must be mastered”.1 This opportunity of systematising the land situation enabled the Conqueror to make England the most perfectly organised feudal state in Europe, and in this sense we may say that we are indebted to him for the feudal system. But he refused to allow the great barons whose tenure intervened between him and their sub-tenants to turn their position to political advantage, and one of his last acts was to assemble a great meeting (1086) at Salisbury where came all his counsellors “and all the land-owning men of property that there were all over England, whosesoever men they were, and all bowed down to him and became his men, and swore oaths of fealty to him that they would be faithful to him against all men”2—even against their immediate lords. In this way William tried to prevent the feudal anarchy and private war against which he had struggled for so many years in Normandy.3

His work, then, was pre-eminently that of systematisation. A few great reforms there were, but his greatest contribution was the Norman spirit of clever administration and orderly government, and his own stern enforcement of royal rights. Upon this basis was the common law to be built in later days. In other respects he was content to continue the old English laws and customs, expressing his policy in a brief but stately charter which is still preserved by the City of London:4

“King William greets in friendly wise William the bishop and Gosfrith the portreeve, and all the burgesses in London, both French and English. I let you wit that I will that you two be worthy of all the laws that you were worthy of in King Edward’s day. And I will that every child be his father’s heir after his father’s day,5 and I will not endure that any man offer any wrong to you. God keep you.”

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Of William II (Rufus) there is little to say except that he rashly provoked a feud with the Church, in consequence of which Archbishop Anselm suffered years of exile and “by his firmness set up a new standard of independence for the English clergy, and made the opening move in the struggle between Church and State in England”.1 At the same time, the efficient central administration was employed under the direction of the king’s principal minister, Ranulf Flambard, in converting the incidents of feudal tenure into engines of financial oppression.

CHURCH AND STATE

With the reign of Henry I (1100-1135) we come to a more important period of legal history. His first act was very significant. Just as the Conqueror had made the short promise of good government to London which we have just quoted, so his son Henry I issued a formal Charter in 1100 promising to stop the oppressive practices which his brother Rufus had introduced; then he chose as his queen Edith, who was a representative of the old English royal house, and so conciliated the English. His principal trouble (apart from a baronial revolt which was soon quelled) came from the Church which was growing anxious at the rapid rise of powerful monarchies which were apt to use the Church for political ends. Soon the issue became definite and Europe-wide in the form of the “Investiture Contest”. The Conqueror had compelled the cathedrals to elect his nominees as bishops and had himself delivered to them the emblems of spiritual as well as of temporal authority. Gregory VII as early as 1075 prohibited lay investiture, holding that the Church was independent of the State, and that no temporal ruler could confer ecclesiastical authority. A long struggle followed which on the continent took the form of the spectacular struggle between the Empire and the papacy. In England Henry I and Archbishop Anselm were subject to the moderating influence of the great canon lawyer Ivo of Chartres who devised a compromise in 1107; the King resigned his claim to invest bishops with the ring and staff (the emblems of their spiritual authority), while Anselm agreed that cathedral chapters should come to the King’s chapel and elect bishops in his presence—thus leaving room for a reasonable amount of royal influence. This wise settlement was extended to all Europe only after much bitter strife in 1122.

The conflict is one of the central facts in mediaeval history, for it shows a clear-cut issue upon which a saintly man of Anselm’s type would unhesitatingly decide that he had higher duties than those which he owed to the Crown. The Concordat of Worms of 1122 did not permanently end the dispute, which soon revived upon slightly different ground; indeed, in its most general sense the quarrel is likely to last as long as government itself. It has had important results upon the political Edition: current; Page: [15] theory of the State, some of the greatest minds of the middle ages having devoted their powers to the examination of the nature of kingship, the authority of law, and the limits which ought to be put upon the power of temporal rulers. Jurisprudence to-day bears the traces of these great events, in the course of which the State was criticised in terms of the highest ideal of government which then existed, that of the universal Church.1

HENRY I’s REFORMS

The rest of the reign is occupied with the peaceful activities of the Justiciar, Roger, Bishop of Salisbury, a Norman from Caen, who like so many of his race had something of the efficiency expert in his blood. Official tradition long respected him for his organisation of the Exchequer on strict business lines, and to him we owe the series of “Great Rolls of the Pipe”. The earliest in existence is dated 1130 and contains important legal as well as financial information. Some of the earlier rolls must be lost; but with a few gaps there is an almost complete series of Pipe Rolls from 1156 down to 1832—a remarkable sign of the permanence of Roger’s work. In this reign, therefore, we may place the elaboration of an efficient governmental organisation at Westminster. In local government Henry I was equally active; eleven untrustworthy sheriffs were dismissed in 1129; justiciars were sent on circuit to look after the pleas of the Crown (and they soon usurped for their master immense jurisdiction by asserting that any matter which concerned the King’s peace could be treated as a plea of the Crown), while it is clear that the Norman sheriffs were still administering in the county what was essentially Anglo-Saxon law, for we have some curious treatises (written between 1113 and 1118) which are attempts to state that old law in language that the Normans could understand.2 This in fact is the justification for the statement we have already made to the effect that the period of Anglo-Saxon law extended later than the Norman Conquest, and at least as late as the year 1100 or thereabouts. We therefore see that in the reign of Henry I the law was substantially Anglo-Saxon and administered by the sheriffs locally according to ancient custom (which was certainly not the same all over the country). As yet there was very little that could be called “common law”. So far Edition: current; Page: [16] there was only a great administrative machine well on the way towards a complete domination of the realm. From this great machine there will develop the future common law.1 Only in Sicily was such efficient administration to be found, and there too it was the work of Norman invaders.2

Henry’s death was a great loss to the nation:

“then there was tribulation soon in the land, for every man that could forthwith robbed another. . . . A good man he was and there was great awe of him. No man durst misdo against another in his time. He made peace for man and beast. Whoso bare his burden of gold and silver, no man durst say him aught but good.”3

The reign of King Stephen (1135-1154) is frequently called “the Anarchy”, so great were the disorders which filled it attendant upon the disputed title to the Crown. The machine which Henry I had perfected needed a firm hand to run it, and Stephen was content to let things drift. Art and letters, indeed, flourished, and Vacarius came to Oxford to teach Roman law and to write a less expensive text-book for poor English law students,4 but from the point of view of Norman efficiency the reign was disappointing: still,

“to those who do not place order above everything and who realise how oppressive Henry’s government was becoming in spite of its legality, it must always remain a moot question whether Stephen’s reign was such a total set-back as the ecclesiastical writers of the day would have us believe”.5

HENRY II’s EMPIRE

With his successor, Henry II, we come to one of the most critical epochs in the history of the common law. By inheritance or by marriage he had acquired the rulership of England, Normandy, Aquitaine and Anjou, and like many of his barons divided his time between England and the continent. This close connection with France was to have important results for English law as we shall see later. Whatever the lessons of Anglo-Norman public administration, the revival of learning now in progress may have brought broader views and more generous ideals. Stubbs has made the attractive suggestion that perhaps the rapid growth of the universities

“conduced to the maintenance in the educated class of an ideal of free government, Edition: current; Page: [17] drawn from ancient Greek and Roman history, which, although never likely to be realised in detail, tended to make tyranny such as that of William Rufus impossible.”1

It must never be forgotten that the general standard of learning and culture of a nation has a large part in determining its law and polity.

CONSTITUTIONS OF CLARENDON

The reign opens (1154) with the confirmation of Henry I’s Charter of 1100, and with the great conflict between the King and Archbishop Becket. The separation of the ecclesiastical courts by William the Conqueror had had unexpected results, for in the succeeding hundred years the Church had developed a large mass of canon law and claimed wide jurisdiction. This law Becket determined to apply rigorously. Henry was equally determined to impose his own lay law (which also had recently been considerably enlarged in content and strengthened administratively).2 Many people were amenable in criminal matters to both jurisdictions, and Becket proclaimed that such people should not be tried twice—in other words, they should be tried but once, and that in the Church courts. Then certain things also were subject to both jurisdictions—Church lands, and the rights of ecclesiastical patronage (called advowsons). Finally, at a council in 1164 all the magnates of the realm “recognised” (the word is borrowed from the “recognition” or verdict of a jury) a list of customs which they declared were the practice of the reign of Henry I.

This statement, called the Constitutions of Clarendon, Henry II proposed as the basis of a compromise.3 Some of these provisions repeat practices dating from the reign of William I, such as in requiring the King’s permission before a tenant-in-chief can be excommunicated, or an appeal carried from the Church courts in England to Rome (cc. 7, 8, 10). Chapter 13 introduces the striking rule that a lord shall be held responsible by the King if his servants do wrong to a bishop. All litigation concerning advowsons is to be in the King’s court (c. 1), and so also cases involving the Church’s lands unless they be held in free alms (a tenure comporting no earthly services, and peculiar to Church property), but the fact of free alms or lay tenure is to be decided in the King’s court—which had been the rule in Normandy as well (c. 9). Chapter 15 contains the highly important rule that no plea of debt shall be withdrawn from the King’s jurisdiction on the grounds that the debt was accompanied by an oath or pledge of faith—spiritual censures may be imposed for breach of faith, but the civil jurisdiction over debt is not to be thereby ousted. This clause was not an unmixed benefit, for although the State thereby appropriated to itself a large jurisdiction Edition: current; Page: [18] over contract, nevertheless the law of the Church in this field was rapidly becoming more modern, more equitable and less formalistic. She had long punished breach of faith as a crime, and was soon to extend the idea and proclaim in addition the enforceability in law of promises (opinions to this effect appear first in 1212).1

Finally, it was declared by chapter 3 that clerks (that is to say, all who were in major or minor orders) when under accusation of crime should first answer in the King’s court, and then be remitted for trial by the bishop, and if he convicted, then they were to be returned to the lay court for punishment, for Henry insisted that degradation (the severest penalty the Church could inflict) was too mild for felonies. Last of all, Henry objected to laymen being tried in ecclesiastical courts, even for canonical offences, merely upon informations. So he offered the bishops the aid of a sheriff’s jury of presentment if the Church could find no other means of getting a public accuser.2

This compromise on the basis of old customs was effective, except as to the punishment of convicted clerks. On this point Henry had to yield after the murder of Becket in 1170, and thenceforward “benefit of clergy” eventually began to operate as a sort of first offender’s law, for it was the later rule that the culprit escaped punishment for the first offence only on proving his clergy.

THE EXCHEQUER

After the dramatic murder of Becket the interest turns to the rapid development of the administration under Henry II’s officials. The Treasury was under Nigel, Bishop of Ely (a nephew of Henry I’s Justiciar, Roger, Bishop of Salisbury), who further elaborated its constitution and procedure. Finally, having bought the office of Treasurer he conferred it upon his son, Richard fitz Nigel, Bishop of London, who wrote an extremely detailed account of the working of the Exchequer called the Dialogue of the Exchequer (1177-1179).3

The last ten years of the reign are dominated by Ranulf de Glanvill, the Justiciar. A competent general, diplomatist and judge, although an unscrupulous sheriff (he was twice removed from office), his name was attached to the first treatise upon the common law. The date is soon after 1187 and Glanvill’s nephew, Hubert Walter, has been suggested as possibly its author. It is a short, simple book, for the common law was neither very extensive nor very complicated. But for all that, it Edition: current; Page: [19] set the style of legal literature for many centuries to come, for the author of Glanvill invented the method of writing law in the form of a commentary upon the different writs.1

THE PLACE OF HENRY II

There are many other great events of this reign which we shall describe more fully in later chapters of this book. The extension of the system of itinerant justices; the growing definition of the courts of law; the widespread use of the jury; the establishment of the petty assizes2 as speedy methods of trying cases of recent dispossession of land; the Assize of Clarendon (1166) remodelling criminal procedure and systematising the presenting or grand jury;3 the Assize of Northampton (1176) which strengthened the claims of an heir to land against the feudal lord; the Assize of Arms (1181) which reorganised the local defence and police measures—these are only the greatest of the many reforms of Henry II’s reign. In the words of Bishop Stubbs:

“Henry II was far more than an inventor of legal forms or of the machinery of taxation. He was one of the greatest politicians of his time; a man of such wide influence, great estates, and numerous connections, that the whole of the foreign relations of England during the middle ages may be traced directly and distinctly to the results of his alliances and his enmities. He was regarded by the Emperor Frederick, by the Kings of Spain and Sicily, by the rising republics of Lombardy, by the half-savage dynasts of Norway, and by the fainting realm of Palestine as a friend and patron to be secured at any cost. He refused the crowns of Jerusalem and Sicily; he refused to recognise the anti-pope at a moment when the whole influence of the papacy was being employed to embarrass and distress him. His career is full of romantic episodes, and of really great physical exploits.

“Yet the consent of the historians of the time makes him, first and foremost, a legislator and administrator. Ralph Niger, his enemy, tells how year after year he wore out men’s patience with his annual assizes; how he set up an upstart nobility; how he abolished the ancient laws, set aside charters, overthrew municipalities, thirsted for gold, overwhelmed all society with his scutages, his recognitions, and such like. Ralph de Diceto explains how necessary a constant adaptation and readjustment of means was to secure in any degree the pure administration of justice, and lauds the promptness with which he discarded unsatisfactory measures to make way for new experiments. William of Newburgh and Peter of Blois praise him for the very measures that Ralph Niger condemns; his exactions were far less than those of his successors; he was most careful of the public peace; he bore the sword for the punishment of evil doers, but to the peace of the good; he conserved the rights and liberties of the churches; he never imposed any heavy tax on either England or his continental estates, or grieved the Church with undue exactions; his legal activity was especially meritorious after the storm of anarchy which preceded. In every description of his character the same features recur, whether as matters of laudation or of abuse.”4

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CHAPTER 3: THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION

SUMMARY page
The Position of the Crown 20
The Ideas of Hubert Walter 21
John and the Pope 22
The Great Charter 22
The Barons’ Wars 26

Henry II was followed successively by his sons Richard I (1189-1199) and John (1199-1216), and his grandson Henry III (1216-1272). During these reigns every sort of strain was placed upon the administration and upon the infant common law. It is a great tribute to his work that they both survived. Richard was absent from the realm for almost the whole of his ten years’ reign; John was involved in disastrous war abroad, civil war at home, insurrection, invasion and interdict. Henry III was a child of nine at his accession, with only his mother’s bracelet for a crown, and yet a few great-hearted nobles, encouraged by the paternal interest of Pope Honorius III, spared the land most of the troubles which usually attended a minority in those days. And soon, by the middle of Henry’s reign, one of his judges, Henry de Bracton, was already preparing material for an immense and detailed treatise on the common law beside which the little book of Glanvill would seem a mere pamphlet, and he tells us that the best cases are those in the earlier years of the reign—so flourishing was the law even in those troubled times. The secret is surely to be found in the permanence of the administration established by the Norman kings, which withstood all these shocks, grew, prospered, and finally (as every administration must) became the parent of new law, and of new legal machinery.

THE POSITION OF THE CROWN

Then, too, the Crown through all these disasters survived the attempts of certain interests which would have reduced its power to ineffectual limits; on the other hand, the opposite tendency of the Crown to use the powerful machinery of government to institute a tyranny was likewise frustrated. And so, on a broad view, both the oppressions and the rebellions of the period appear as efforts to find and maintain the just mean between private liberty and public order, while through it all, steadily and constantly, proceeds the growth of better and more expert judicial institutions, and the development of more and more rules of Edition: current; Page: [21] law, and their organisation into a coherent legal system which already was beginning to separate from the purely administrative machinery of the realm. By the time we reach the second half of Henry III’s reign the judiciary is already distinct from the administration and can stand aside while the national leaders in arms assert the necessity of imposing restraint upon the speed and the direction of so dangerous an engine; while very soon, Parliament will appear with this as one of its main duties.

THE IDEAS OF HUBERT WALTER

Of all the threads which run through this period, many of them highly important, we shall here follow only one—the struggle for the charters. The absence of Richard I had shown that it was possible for the machinery to work without a king to direct it, provided that there was a trusty minister to take his place. The great Archbishop Hubert Walter took this rôle, and assisted by the great council of magnates ruled well, retaining his power into the next reign. The brilliant outburst of literature, art, law and general culture which marked the close of the twelfth century was accompanied by the development of an idea of government of which Hubert Walter1 was the embodiment.

“King John, in fact, felt with much truth that he was not his own master so long as his great minister was alive. Hubert Walter held the view, natural in an ecclesiastical statesman, that the kingship was an office invested with solemn duties. Royal power must be inseparable from the law. And the Archbishop’s prestige was so great that a word from him on the interpretation of the law could set aside the opinion of the King and his advisers.”2

His successor, Stephen Langton, whom Pope Innocent III forced John to accept, was of the same school, holding that “loyalty was devotion, not to a man, but to a system of law and order which he believed to be a reflection of the law and order of the universe”.3 Conflict was inevitable between such statesmen and John, whose life had been spent in constant turbulence, intrigue and treachery, with complete indifference to “those principles of harmony in life and nature which underlay all the current belief in justice and responsibility”.4 The rapid growth of the central administration and the development of the courts of law (which we shall consider in more detail later5) was only equalled by the growth of local government, of boroughs, of trade both internal and foreign, and the close co-operation of central and local authorities. Litigation, negotiations, compromises, definitions of official power, the statement of precise limits to all sorts of jurisdictions public and Edition: current; Page: [22] private, organisation between groups of towns and the elaboration of machinery for holding international representative chapters in certain religious bodies—these are all signs of the spirit of legal order which filled the opening years of the thirteenth century. It is from this standpoint that the events leading to Magna Carta must be considered.

JOHN AND THE POPE

John’s troubles opened with Innocent III’s refusal to permit his candidate to become Archbishop of Canterbury, the Pope substituting his own much better choice, Stephen Langton.1 The Great Interdict followed, to which John replied by confiscating Church property. The political thought on both sides of the struggle is clear. John regarded bishops as higher civil servants, and looked back to the old days when Church and State in England were mingled, the papacy weak, and the Church subservient to the Crown. Hence he was able to strike the attitude of a patriot against foreign meddling. Langton started by assuming the separate sphere of Church and State, attacked the shifty details of John’s recent conduct, and proclaimed that John’s vassals were not bound to him after he himself had broken faith with the King of Kings, arguing “as an exponent of feudal custom in the light of those high principles of law to which all human law should conform”.2 The conflict was thus one of fundamental principle. John poured out money in Europe to buy support, and built up an imposing coalition against the Pope’s ally, King Philip Augustus of France. Then, in his customary sudden manner, he abandoned all his plans, submitted to Rome and did homage to the Pope’s legate. The next year his allies were ruined in one of the most important battles of the middle ages (Bouvines, 1214). It was now time to reckon with the discontent aroused by the reckless oppression to which John had resorted during the Interdict. Archbishop Langton undertook to force the King to make amends, and produced the old Charter of Henry I as the basis of what was normal and just, adding a long list of more recent grievances. London opened its gates to the barons, and soon after the fifteenth day of June, 1215, John had to put his seal to the Great Charter.3

THE GREAT CHARTER

This is a long document of sixty chapters and represents the extreme form of the baronial demands. The next ten years saw the progressive shortening of the Charter by omitting much that was temporary, by Edition: current; Page: [23] putting the important clauses concerning the forests into a separate document (called the Charter of the Forest), and by pruning the excesses of the victorious barons. John obtained a bull from his new over-lord, the Pope, annulling the charter.1 Indeed, some of its provisions were much too extreme, particularly the last, which erected a commission of twenty-five barons with power to enforce the Charter by coercing the King. The Great Charter of 1215 was therefore actually law for only about nine weeks. The King died shortly after (1216).

The council who ruled in the name of the infant Henry III re-issued the charter in 1216 (this time with papal assent) very much modified in favour of the Crown, with a promise to re-open the question when the French invasion, undertaken at the will of the rebel barons, had been defeated. This promise they fulfilled in 1217 on the occasion of the treaty whereby Prince Louis withdrew, and this, the third, Great Charter contains “numerous, important, and minute” changes whose general tendency was again in favour of the Crown. It was felt that the boy King ought not to suffer for his father’s sins, and that the difficult period of a minority was no time to weaken the central government; in any case, it was a committee of nobles who actually ruled in Henry’s name and any limitation on his power would only make their task of governing the harder. Hence the successive compromises of 1216 and 1217. At length, in 1225, Henry III came of age and issued the fourth Great Charter which differed from the third in slight details only. This is the document which is still law (except in so far as it has been repealed) and is cited by the old authors as the charter or statute of the ninth year of Henry III. It was not enrolled until many years later when, in 1297, it was put on the statute roll (word for word, except one slight slip), and so is also sometimes cited as the statute Confirmatio Cartarum of 25 Edward I.2 On numerous later occasions during the middle ages it was solemnly confirmed and from that day to this has been held in the deepest respect both in England and in America. After all these revisions Magna Carta as it now stands on the statute books of common law jurisdictions is a sober, practical, and highly technical document. A complete understanding of all its provisions would require a whole volume upon numerous aspects of mediaeval law and administration; for our present purpose the following summary will suffice.3

Constitutional Provisions.

“First, we have granted to God, and by this our present charter have confirmed for us and our heirs for ever, that the English Church shall be free and shall have Edition: current; Page: [24] all her rights and liberties, whole and inviolable. We have also given and granted to all the freemen of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever (Chapter 1; note the formulas of a conveyance of real property which are here used).

“The City of London shall have all her old liberties and customs. And moreover we will and grant that all other cities, boroughs, towns . . . and ports shall have all their liberties and free customs” (Chapter 9).

“No freeman shall be taken or imprisoned, or disseised of his free tenement, liberties or free customs, or outlawed or exiled or in any wise destroyed, nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land. To none will we sell, deny, or delay right or justice” (Chapter 29). These words have provoked centuries of discussion. Originally, it seems, “the law of the land” covered all the usual modes of trial, whether it be by indictment, petty jury, appeal or compurgation. “Trial by peers”, on the other hand, was undoubtedly an importation from continental feudal law, and was the solemn trial of a vassal by his fellow-vassals in the court of their lord.1 It has always been rather rare, and is apt to have a political aspect. King John himself was tried by his peers in the court of King Philip of France who was his overlord in respect of the lands held by John in France. In certain cases an English peer could claim to be tried by members of the House of Lords, either in Parliament or in the Court of the Lord High Steward. As time went on the phrase was given a newer and wider meaning. We find for example that a knight accused of felony will claim successfully a jury composed of knights.2 Later still the notion will get abroad that “trial by peers” means trial by jury, which it certainly did not at the time when the charter was first made.

The Regulation of Feudal Incidents.

The numerous feudal incidents of relief, wardship, marriage, and the rights of widows, were regularised to prevent the oppression which had grown up during the reign of King John. These reforms applied also to the relations between the barons and their undertenants, and form the basis of a great deal of feudal law

(Chapters 2-6, 10).

Restraints on the Prerogative.

“The writ called praecipe shall not be used in the future to deprive any lord of his court”3 (Chapter 24). Purveyance and the forfeiture of lands for felony were likewise regulated

(Chapters 19, 21, 22).

The Regulation of the Courts.

“Common pleas shall not follow our court but shall be held in some certain place” (Chapter 11). The taking of the assizes was ordered for regular terms every year and was to be in the proper counties. Sheriffs was forbidden to hold pleas of the Crown. The County Court was also regulated and ordered to be held not more than once a month

(Chapters 11-14, 17, 28, 35).

The Law of Land.

The rights of widows were protected and landowners were forbidden to alienate so much of their land that the lord of the fee suffered detriment; and finally, collusive gifts to the Church (which were frequently made in order to evade feudal service) were forbidden

(Chapters 7, 32, 36).
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Trade and Commerce.

The sureties of the King’s debtors were not to be liable until after the default of the principal debtor, and were to have the lands of the debtor until they were satisfied for what they had paid for him. There was to be one system of weights and measures throughout the land, and foreign merchants were to be allowed free entry except in war-time, their treatment depending upon the treatment of English merchants abroad

(Chapters 8, 25, 30).

From this it will be seen that the provisions of the Great Charter which became permanent were those of a practical nature, while the revolutionary machinery invented by the barons to supersede the Crown was quickly dropped as unworkable and contrary to the current of English history.

The Great Charter was by no means unique in European history. Many kings and nobles about this time were granting charters to their tenants and subjects, and their general character was not dissimilar even in different countries. It has even been suggested that Spanish influence can be traced in our own Charter.1 In 1222 Hungary obtained a very similar charter.2 The difference between the English Charter and these other documents lies not in its contents but in the use made of it in subsequent history. The Charter gradually grew bigger than the mere feudal details which it contained and came to be a symbol of successful opposition to the Crown which had resulted in a negotiated peace representing a reasonable compromise. As time went on, therefore, the Charter became more and more a myth, but nevertheless a very powerful one, and in the seventeenth century all the forces of liberalism rallied around it. The great commentary upon it by Sir Edward Coke in the beginning of his Second Institute became the classical statement of constitutional principles in the seventeenth century, and was immensely influential in England, America and, later still, in many other countries as well.3 To explode the “myth” of the Greater Charter is indeed to get back to its original historical meaning, but for all that, the myth has been much more important than the reality, and there is still something to be said for the statement that “the whole of English constitutional history is a commentary upon the Great Charter”.4

Its immediate result, apart from the reforms contained in it, was to familiarise people with the idea that by means of a written document Edition: current; Page: [26] it was possible to make notable changes in the law. Within the period of ten years, four successive charters had made numerous changes in law and procedure. Was not this an indication that many other difficult questions might be settled in a similar manner? And as a matter of fact we soon find a stream of legislation beginning to appear, which we shall describe later.

THE BARONS’ WARS

The rest of the reign of Henry III is notable chiefly for the revolt of the barons in 1258, which repeats the main outlines of the revolt against King John. The results also were similar. A revolutionary organisation was set up by the barons with the idea of reducing the Crown to complete powerlessness; and this, like the previous attempt in 1215, had soon to be abandoned. But in this later struggle the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform. Recent work on this period has shown how largely it was concerned with legal problems, and to lawyers there are two especial reasons for studying the baronial revolt with care. First, it was the age of Bracton,1 who ceased to revise his great treatise just as the crisis approached; and secondly, it was the one occasion in English history when the laity carried out vi et armis an important and complicated programme of law reform. Its full significance can hardly yet be appreciated, but recent research has already shown that the development of the forms of action, and especially trespass, during this period is of importance,2 that the working of the law of seisin was also the cause of difficulty,3 and that the abuse of the lord’s right of extra-judicial distress—“the beginning of all wars,” as Simon de Montfort called it4—was a problem of great urgency. Many of the reforms the victorious barons effected were continued after the fall of Simon de Montfort and became the Statute of Marlborough, 1267. Even before his accession Prince Edward took part in this post-war period of reconstruction, and the Statute of Marlborough is therefore really a part of the great programme of law reform which was carried out in the reign of Edward I.

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CHAPTER 4: EDWARD I TO RICHARD II: STATUTES AND SOCIAL REVOLUTION

SUMMARY page
Westminster the Second 28
The Statute and Similar Cases 28
Bills of Exceptions 29
The Nisi Prius System 29
Edward I and Feudalism 30
Edward II and the Ordinances 31
Edward III: The Black Death 32
Richard II: The Peasants’ Revolt 32

We now come to a period of steady growth in the common law covering just over a century and a quarter (1272-1399). The reign of Edward I is marked by one of the greatest outbursts of reforming legislation in English history until the nineteenth century.1 The first Statute of Westminster (1275) made numerous changes in procedure, many of them designed to protect the subject against the King’s officers, for the evidence collected by the commission of inquiry set up in the previous year had revealed a good deal of oppression.2 The statute may be regarded in some ways as being a sort of supplement to the Great Charter, which was now fifty years old. The Statute of Gloucester (1278) made important amendments to the law of land, especially on the subjects of waste, curtesy and dower. The next year the great Statute of Mortmain did something to check the feudal losses which resulted when land was given to churches, monasteries and corporate bodies, by completely forbidding all amortisation.3 In 1284 we have a remarkable statute re-stating the fundamentals of the common law for the information of sheriffs who were engaged in applying English law to the newly conquered land of Wales. This statute is so long that it almost amounts to a short treatise on the state of the law in 1284; its practical interest to historians is therefore considerable, for it contains information which is difficult to find elsewhere.

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WESTMINSTER THE SECOND

The next year (1285) saw an astonishing series of epoch-making statutes. Of these the first was the second Statute of Westminster, which leaves hardly a single department of the law untouched. Of its fifty chapters, the first is the famous De Donis of which we shall have much to say later on, for it lies at the foundation of the idea of legal estates in land. Among many others are the following important provisions. The common mode of fraudulently conveying land by allowing judgment to go by default in a collusive action brought for the purpose was checked (c. 4).1 The rights of joint-tenants and reversioners were given more prompt protection in such cases, and it was enacted that this device should not bar a widow’s claim to dower. By chapter 11 a very stringent process was created for the action of account. In its origin it dealt with the relationship of the lord of a manor to his bailiff or estate manager, but as history proceeds it becomes a commercial as well as a feudal action, and the regular remedy lying between partners. The statute imposes imprisonment as soon as an accountant is found in default, and this penalty can be inflicted by the lord’s auditors without the intervention of a court. Equally drastic is the penalty upon the sheriff or gaoler if such a prisoner escapes, for in such a case the gaoler shall be liable to the lord in the same sum as the accountant was. This perhaps is a reflection of the insecurity of mediaeval prisons, which were by no means so massive as is sometimes thought. Chapter 18 established the writ of elegit whereby a judgment creditor could, as an alternative to the old fieri facias, elect to take all the debtor’s chattels and to hold half of his lands until the debt be levied out of the chattels and the rent.

THE STATUTE AND SIMILAR CASES

Chapter 24 contains the famous provision that—

“whensoever from henceforth it shall happen in the Chancery that there is to be found a writ in one case, but not in another case although involving the same law and requiring the same remedy, the clerks of the Chancery shall agree in framing a writ, or else they shall adjourn the plaintiffs to the next Parliament, or else they shall write down the points upon which they cannot agree and refer them to the next Parliament, and so a writ shall be framed by the consent of the learned in the law; to the end that the court from henceforth shall no longer fail those who seek justice.”

Here indeed is laid down a regular procedure for the steady expansion of the law by the enlargement of the available writs in certain narrowly defined circumstances. Its primary object was to authorise the extension of remedies which already existed between parties, so that they would become available between the heirs (or successors in office) of those who would primarily have been entitled to use them. It is clear that the Edition: current; Page: [29] Chancery clerks did not regard this statute as giving them wide powers of creating new forms of action, for where we find the chapter invoked at all (and it is not very often) it is used with great caution. The only serious extension of the law as a result of the statute was the creation of the writ of entry in consimili casu.1 In fact, the large part assigned to Parliament in the chapter shows that it was the general feeling that matters of legislative importance ought to be handled there. In the fourteenth century, moreover, parliamentary proceedings were often extremely informal, and are by no means always recorded on the rolls; consequently it is most likely that these statutory powers were exercised, if at all, by the little group of administrators and lawyers who formed the kernel of the fourteenth-century Parliaments. Very soon, however, the statute rolls seem regularly to contain express declarations in legislative form as to the extension of old writs to new cases, and it may well be that the form of a statute was chosen because the publicity attaching to it made the reform more quickly effective.2

BILLS OF EXCEPTIONS

Chapter 31 relates that it sometimes happens that parties who allege an exception which the court overrules have difficulty when they attempt to test the lawfulness of the decision by a writ of error, because the court may not have enrolled the unsuccessful exception. The higher court is therefore unable to pass upon the matter because it is not on the record before them. To remedy this, the statute allows such exceptions to be written down in a “bill” to which the trial judge must affix his seal. If the exception is not enrolled, then the “bill of exceptions” is to be sufficient record for proceedings in error. The chapter shows that the roll is still under the absolute control of the court, which can include or exclude matters in its discretion; it is not surprising that judges said many hard things against the new “bill of exceptions” and more than once flatly refused to seal them.3

THE NISI PRIUS SYSTEM

Chapter 30 regulated the new system of nisi prius justices, who become more important in practice as a result of many succeeding statutes amending the system in details. In this way it became less necessary for juries from remote parts of the country to undertake the slow and costly journey to Westminster.

In the same year the Statute of Winchester established a system of police by compelling citizens to possess armour according to their means Edition: current; Page: [30] for the defence of the peace. Then the Statute of Merchants (also of 1285) established a system of recording debts and of making land liable to execution, which lasted down to the eighteenth century with some modifications.1 In 1290 we find the great Statute Quia Emptores which has been rightly called one of the pillars of real property law.

The burden of foreign war and the Crown’s growing need for money provoked a good deal of unrest, and finally, as the price of a heavy grant of taxes, the King had to confirm the Charters. It was on this occasion (1297) that the Great Charter was first enrolled among the public archives.

EDWARD I AND FEUDALISM

There is one general aspect of Edward I’s legislation which has especial interest. This is the belief of many historians, expressed in several different forms, that there was something anti-feudal in his policies.2 We have already mentioned the fact that the Statute of Marlborough was passed under his influence and is historically part of the great mass of legislation passed in Edward I’s reign, and so we shall consider it together with the statutes of Westminster the first and second, and especially the statute of Quia Emptores. Of the Statute of Marlborough Maitland wrote that “in many respects it marks the end of feudalism”,3 and of Edward’s legislation as a whole Stubbs wrote that it endeavoured to eliminate the doctrine of tenure from political life.4 These two statements, sometimes repeated in less guarded language by other historians, deserve more minute examination than can be accorded them at the present moment, but a few general observations can be made.

It would indeed be a remarkable tribute to the intellectual powers of Edward I if it could be shown that he set his face against the whole pattern of contemporary society as it existed throughout civilised Europe. The demand for a new social structure is common enough in our own day because we have numerous examples, both contemporary and in the history of the last two generations, of revolutionary attempts to remodel society on the lines of military and economic dictatorships, communes, soviets and the like. But it is hard to imagine a statesman of the year 1300 suggesting an alternative to the social structures over which three such legal-minded monarchs as Edward I, Philip the Fair and Boniface VIII presided.

If Edward’s legislation is examined, it will be seen that its general tendency is not to weaken, but to strengthen, the position of feudal lords. Lords must have been grateful for two statutes which gave Edition: current; Page: [31] them immense power over their bailiffs;1 the feudal rights of wardship and marriage were protected by new civil and criminal procedures;2 the default of tenants in paying services (which at this moment left the lord in a very weak position) was for the future visited with the forfeiture of the tenement;3 and lords were also given extended powers of appropriating commons.4 Most striking of all, Edward I risked a bitter quarrel with the Church over mortmain in order to prevent lords losing their feudal incidents when land passed to ecclesiastical bodies,5 and Quia Emptores itself was designed in order to preserve those same rights of wardship, marriage, relief and escheat.6 Continued sub-infeudation would probably have introduced such chaos into the system of tenures that these incidents would have eventually been evaded almost universally, but Quia Emptores perpetuated them. Edward I certainly did a great deal for the feudal lord. But he was not prepared to tolerate abuses, and he was equally active in assuring to tenants their rights. Many great statutes defined the law of distress and replevin,7 and the action of mesne (which protected a sub-tenant when his lord defaulted in services to the lord above) was made more practicable.8 There seems no escape from the conclusion that this legislation assumed the reasonableness and desirability of the feudal structure, and deliberately strengthened it. The fact that all the incidents of military tenure survived until the sixteenth century, and that the persons interested in them were to enjoy them for an additional century (thanks to the statute of uses), is all testimony to the soundness of the legal structure of feudalism as Edward I left it. His policy in fact was based on that simple and straightforward idea of “justice” which was taken as an axiom in the middle ages—the rendering to every man his own. Edward assured to the tenant the peaceful enjoyment of his lands with the same impartial justice as he confirmed to the lord the fruits of his seignory.

EDWARD II AND THE ORDINANCES

The troubles which began in the reign of Edward I became chronic under his son, Edward II (1307-1327), and once again an attempt was made by a series of “Ordinances” (1311) to put the Crown under the domination of a group of barons.9 For a time they were successful, but in the end a counter-revolution repealed the Ordinances by the Edition: current; Page: [32] famous Statute of York (1322). This Statute contains the important declaration that matters relating to the estate of the King and the country must be agreed upon by the prelates, earls, barons and commons in parliament. It has been very persuasively argued1 that this statute already shows a feeling that matters which would now be called “constitutional” ought to be reserved for very special deliberation in a parliament which contained commons as well as lords. In any case,

“it is not too much to say that one result of the reign of Edward II was the establishment of the practice of regarding only those parliaments as true parliaments which contained representatives of the commons”.2

EDWARD III: THE BLACK DEATH

The tragic ending of the reign and the mysterious death of the unfortunate Edward bring us to the reign of his son, Edward III (1327-1377), and a period of fifty years of uneasy tension. Once again we find the Charters solemnly confirmed in 1352. The middle of his reign was marked by a series of fearful calamities which have left their mark upon society and the law. The nation was already weakened by a succession of famines when the arrival of the Black Death (1348-1349) from the East wrought a revolution in social and economic conditions. The terrible mortality from this plague completely disorganised the manorial system, which had hitherto depended upon a plentiful supply of labour born and bred within the manor. The plague accelerated and intensified forces which were already at work, and the result was a very serious depletion of the labour supply. The population of the manor was no longer sufficient to work the lord’s estates. Consequently lords began to compete among themselves for such free labour as was available. This tempted servile inhabitants of manors to leave their holdings and become hired labourers. So keen was the competition that a series of ordinances and statutes beginning in 1349 regulated for the first time the relationships between master and servant, and provided machinery for the establishment of scales of wages above which any payment would be unlawful.3 This system depended largely for its operation upon the “justices of labourers” (later justices of the peace), and remained in force as late as the eighteenth century.

RICHARD II: THE PEASANTS’ REVOLT

The situation culminated in the next reign in the Revolt of the Peasants of 1381. Into the long controversy over the causes and character of this rising we cannot enter at this moment, but very briefly stated, the history of the revolt may be summarised like this. In the first place, it is clear that the old theory which saw the cause of the revolt in a Edition: current; Page: [33] supposed attempt by landlords to reimpose the conditions of serfdom after having first abandoned them is no longer tenable. It seems rather that in this, as in many other revolts, the motive of the movement was not so much a blank despair as a certain hopefulness. It is not in the depth of the night that social revolutions occur, but with the first gleam of dawn. The economic results of the Black Death had already brought a considerable improvement in the lot of the agricultural labourer, and it was the disappointment that this improvement had not been spread more equally among the masses, or proceeded more rapidly, that provoked the impatient peasants to rebellion. The insurgents were mainly those who had not yet been able to establish their position as free labourers, and their hatred was principally directed against the lawyers and the stewards who kept manorial records. Wherever possible the rebels destroyed the manorial rolls which contained the legal evidence of their servitude. The parochial clergy seem to have viewed the movement with considerable sympathy, although the higher ecclesiastics were markedly indifferent. It is now clear, moreover, that the ideas of the early reformer Wyclif played very little part in the movement, although it is certainly true that there were active agitators who were preaching a somewhat crude form of communism. Several independent risings occurred in different parts of the country, and one body of rebels was welcomed by the mass of the Londoners who were at odds with the mayor. A serious massacre took place in the streets of the city, and the rebels beheaded John Cavendish,1 Chief Justice of the King’s Bench, the Archbishop of Canterbury and the Lord Treasurer.

It is very difficult to find any clear results of the revolt. Indeed, the latest opinion tends to lay stress upon the ineffectiveness of the whole movement. It was one of the very few occasions in English history when a definitely social, as distinct from a political, revolution, was proposed, and its failure was immediate and complete. Fortunately, the natural movement towards the emancipation of villeins, which had long been in progress, continued as before the revolt, and during the following century a great silent revolution slowly took place. The majority of the populace who had been serfs gradually acquired economic independence. Lords of manors who could no longer find servile labour, either leased their lands to free labourers (or to labourers who were soon to become free), or else tacitly conceded to their peasants the benefits of ownership in their holdings. This latter process is truly remarkable, and deserves close attention from students of legal history. Through the machinery of custom, which was always a powerful influence for experiment or change in the middle ages, the rightless villein slowly acquired customary property rights in the land he worked. For a long time the common law refused to recognise this process, and it was Edition: current; Page: [34] to the courts of equity that the customary tenant, or copyholder as he was later called, looked first for protection.1 In the early seventeenth century Sir Edward Coke took up the cause of the copyholders, and finally extended to them the protection of the common law courts. In this way those sweeping and violent social revolutions which occurred in Switzerland and France were avoided in English history through the slow adaptation of the law to new social conditions, no doubt assisted by the lack of a precise definition of property, while the willingness to tolerate for a time a few anomalies helped to accomplish by peaceful means the great task of transforming the ancient serfdom into a class of free workers.

Throughout this period we find the steady growth of the legal profession and the development of a remarkable series of law reports called “Year Books” which we shall describe later. Then, too, Parliament becomes more definite in its composition and gradually takes its place as the ultimate court in the land, as a national legislature, and as a representative body which could give voice to the feelings of the nation when the ministers of the Crown incurred its dissatisfaction.

Richard II (1377-1399) is one of the most picturesque and puzzling figures in English history.2 The troubles in his reign (apart from the Peasants’ Revolt) were ultimately of a dynastic character, turning upon the conflicting claims of the Houses of York and Lancaster to succeed. Richard’s tactless policies gave an opportunity to the House of Lancaster to steal a march upon the Yorkists, and the result was the deposition, and soon the mysterious death, of Richard II in 1399.

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CHAPTER 5: THE FIFTEENTH CENTURY: THE PROBLEM OF ENFORCEMENT

SUMMARY page
The Importance of the Council 35
The Lancastrian Constitution 36
Property and Public Law 37
The Enforcement Problem 37
The Yorkists 38

Henry IV, who began the line of Lancaster in 1399, together with his descendants, Henry V and Henry VI, were all under the same disability, that is to say, kings by a doubtful title. They were therefore dependent to a large extent upon the series of family alliances and political factions which had placed them upon the throne, and in consequence we have what has been called the “Lancastrian experiment”. The experiment seems to have consisted in associating a fairly large body of nobles with the daily business of government, and so the chief characteristic of the fifteenth century is the important place occupied by the Council.

THE IMPORTANCE OF THE COUNCIL

“Practically the first public utterance of the new dynasty was its founder’s pledge to be governed by the counsel of the ‘Sages and Ancients of the Realm’, and when, three-quarters of a century later, the line had ended in violence and exile, the last echo of its departed polity was heard in Fortescue’s plea for more ‘counsel’. Time after time, Parliament prayed for ‘sufficient counsel’, and as often did Henry IV inform them of the names of his advisers and swear them to be upright and true; later, in the troublous times of his grandson, it is still the Council which was the storm centre, the Council’s dissensions which raged round the child King’s throne, and the Council’s collapse, which eventually wrought his ruin. To appreciate how intimately the fortunes of the Council were bound up with those of the nation itself, it is well to consider how widely its ramifications spread throughout the body-politic; Parliament, Chancery, Exchequer, law courts—all these still remained so closely connected with the parent body, as represented by the group of men nearest the King, that it is difficult to determine at what period, and to what extent, one should regard them as separate institutions. This interpenetration of the various government departments by the Council can be regarded as the administrative aspect of the growing political supremacy of the Crown. For centuries the Crown was steadily gathering strength and building up a political unity out of the discordant elements of feudalism. One King was to be felt at work throughout the realm, and as the task grew heavier, it was one Council which ensured the smooth working of the various organs of the administration. As a Edition: current; Page: [36] result, the fifteenth century possessed as highly centralised a constitution as one could expect to find, considering that communications—the nerves of a bureaucracy—were still so tardy; such machinery as did exist, however, was to a striking degree amenable to Council influences, and at times subject to Council control.”1

For a time the system worked; while the novelty of it lasted, the barons appeared fairly regularly at the Council table and busied themselves with the daily work of government. But it could not last very long. To lords who were used to power and longed for more, the tiresome routine of a government office was irksome, and as the fifteenth century proceeds we note the increasing difficulty of assembling any number of lords. With their defection the machinery of government was bound either to collapse completely or else to fall into the hands of a group of minor officials. Finally a way was found whereby the regular business of administration was left to professional clerks and household officials, while the lords trusted to their influence in Parliament and the Great Council to be able to supervise the general progress of events. But even this proved too much for the barons. Sooner or later it was unavoidable that they should be divided into the two camps of Lancaster and York, and the Wars of the Roses were an inevitable result; and so the mediaeval baronage finally destroyed itself.

THE LANCASTRIAN CONSTITUTION

To the historians and political antiquaries of the seventeenth century the records of the Lancastrian period were a rich mine of precedents for parliamentary procedure, and their interpretation of the history of the fifteenth century was decisive during the period of the Great Rebellion. To the leaders of the opposition to Charles I, the Parliaments of Henry IV and his successors seemed just the same in composition, in powers and in constitutional spirit as the Parliaments of their own day. Just as the “myth” of the Great Charter is more significant than the Charter itself, so the seventeenth-century interpretation of Lancastrian history has had more practical effect than the actual events would warrant.2 But to an historian who would examine the constitution under the Lancastrian kings and free his mind from the theories which were current in the reigns of James I and Charles I the picture seems rather different. The institutions were there and we can read about them in language which looks strangely modern, but, nevertheless, the spirit within them is still feudal. It was characteristic of the middle ages that the law of land and the property ideas connected with it should take the place and serve the purpose of what is now called constitutional or public law. It is perfectly clear that this was still the case under the Lancastrians.

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PROPERTY AND PUBLIC LAW

When great public questions arose, as happened more than once, they were discussed in terms of feudal property. Indeed, since this paragraph was first written, a distinguished mediaevalist has expressed this attitude in words which deserve careful thought:

“If I were asked which of the famous maxims into which the political thought of the world has at times been compressed is the one which on the whole best comprises the living political conceptions of the later middle ages, my choice, I imagine, would be rather unexpected, and not in all cases accepted, but it is one which my study of this period makes me willing to defend. It is the aphorism from Seneca’s De Beneficiis, ‘Ad reges enim potestas omnium pertinet: ad singulos, proprietas’—to kings belongs authority over all: to private persons property.”1

Nor were the middle ages alone in looking to the idea of property for their principal protection, for it lies at the root of much American constitutional law: the peculiarity lay rather in the fact that the elaborate doctrines of property law were themselves used as a sort of constitutional law. It was not until we reach the reign of Edward IV that we find the first examples of reasoning which are truly and essentially modern upon such questions.2

THE ENFORCEMENT PROBLEM

The same thing is true of local conditions. The barons who hoped to establish their domination over the Crown were carrying out the same policy in the sphere of local politics. Large masses of evidence3 bear witness to the extent to which local government was demoralised through the influence of the great landowners. Trial by jury collapsed utterly;4 parliamentary elections either represented the will of the local magnate or took the form of small battles; the administration of law both at Westminster and in the country was seriously hampered by the breakdown of local machinery and widespread corruption. The lawyers did all they could under the circumstances. They elaborated the law patiently and skilfully. A succession of judges of marked ability were making decisions of great importance, but it was on the administrative and political side that the common law became ineffectual.

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THE YORKISTS

By the time the Wars of the Roses were over the baronial ranks on both sides had been seriously depleted. In fact the baronage, as a political class, had destroyed itself and there remained only the Crown, weakened indeed, but still ready at a suitable moment to resume the great tradition of re-establishing orderly government. With the exile of Henry VI (1461) and the accession of the Yorkist, Edward IV, the work of reconstruction begins. New instruments and new methods begin to appear. The Court of Chancery becomes much more prominent and fills gaps where the common law had been too timid or too weak to attempt reform. The Court of Star Chamber was at this time nothing more nor less than the Council, and it struggled manfully to enforce order in cases where the normal criminal law was hopelessly inadequate. In all this the mainspring was necessarily the Crown, and so we find that the nation turned to the monarchy with a sigh of relief after sixty years of baronial anarchy. This brings us to what has been called the “new monarchy”, which will eventually culminate in the popular nationalist dictatorship of the great Tudor monarchs, especially Henry VIII and Elizabeth.

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CHAPTER 6: THE TUDORS: RENAISSANCE, REFORMATION AND RECEPTION

SUMMARY page
The Mediaeval Achievement 40
The Renaissance and the State 40
The Reformation 41
The Reformation and the Law 41
The Reformation and the Constitution 42
The Reception 43
Tudor Legislation 44
The Close of the Tudor Age 46

The house of Tudor came to the throne with the accession of Henry VII after the battle of Bosworth in 1485, and ruled England during one of its most brilliant periods, the sixteenth century, until the death of Queen Elizabeth in 1603. It was the golden age of literature, beginning with Sir Thomas More and ending with Bacon and Shakespeare; an age, too, of heroic adventure when the seamen ranged the ocean in search of new continents, and planted distant colonies whose future they could never have guessed. But besides the remote new worlds which adventurers had discovered, there was something like a new world in old Europe too. A wave of new ideas was remaking the intellectual life of Italy and France, Germany and England, and these ideas are usually grouped together by historians under the three headings of the Renaissance, the Reformation and the Reception. The movement begins with the revival of classical studies, and especially of Greek. Sometimes this resulted in a sort of new paganism; instead of the frigid logic of Aristotle which had dominated the middle ages, attention turned to the genial romance of Plato, and to the poets. More occasionally the movement took a distinctly religious form, and the tragic lives of Pico, Politian and Savonarola illustrate the beauty of Christianity lived in the light of classical humanism. In England the movement is represented best by Sir Thomas More, Chancellor, historian and romantic philosopher, who combined a platonic fancy for Utopias with a steadfast devotion to traditional Catholicism which cost him his life in 1534. Erasmus also was influential in England, where he lived for some time as Professor of Greek at Cambridge. As with every great intellectual movement, the Renaissance had profound effects upon the conception of law.

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THE MEDIAEVAL ACHIEVEMENT

The mediaeval man has never succeeded in ridding himself of his reputation for lawless behaviour. It is possible, no doubt, to overestimate the amount of disorder that existed, but nevertheless the fact remains that violence is a conspicuous element in almost any mediaeval chronicle. Born amid the ruins of the Roman peace, the early days of the middle ages witnessed the successive failures of several attempts to restore some semblance of authority; and this confusion was further confounded by persistent invasions. Feudalism was the compromise finally reached, and although it made wide concessions to the military idea, nevertheless in the end it accomplished the difficult task of subjecting armed force to the rule of law. Naturally progress was quicker in some places than in others, but everywhere at least a lip service was paid to the idea of law, and as the middle ages proceed it becomes more and more evident that law was winning. Religion had an important rôle in this development and contributed the valuable conception of Jehovah as a law-giver and law-enforcer—a conception derived from Judaism. Out of all the confusion and disaster of the middle ages there arose the unanimous cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. Of the many intellectual systems devised in the middle ages, there was one which proved to be a practical as well as an intellectual answer to some of the most urgent of life’s problems, and that was law, law which was directly based upon the divine attribute of justice.

It might have been that the idea of law was no more than a despairing refuge in an impossible Utopia, devised by minds frightened by the evils around them. But Utopias belong to modern history; the mediaeval man was above all a man of action, and out of the night of the dark ages he began to build the fabric of law. To him the rule of law was not only a worthy achievement of the spirit, but also a great active crusade, and the greatest of all the crusades, because it alone survived its defeats.

THE RENAISSANCE AND THE STATE

Such is the subject matter of legal history in the middle ages where we can follow the rise and progress of law and the rule of law. When we come to Machiavelli we reach the spirit of the Renaissance, and begin to find law itself questioned, for his distinction between public and private morality is essentially the same heresy as to divide the substance of the Godhead; a double standard introduces a sort of polytheism utterly repugnant to mediaeval thought. And true enough, there soon came the State, as a sort of anti-Christ, to wage war with the idea of law. The issue of this conflict is perhaps still uncertain, but mediaeval thought is to-day fighting hard for the cause of law against the amoral, irresponsible State. It was mediaevalists in England, Edition: current; Page: [41] armed with Bracton and the Year Books, who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke upon Littleton before their eyes. Could anything be more mediaeval than the idea of due process, or the insertion in an instrument of government of a contract clause? Pacta sunt servanda,1 it seems to say, with the real mediaeval accent. It was Machiavelli himself who gave us the word “state” and filled it with the content which we now associate with it.2 Instead of the mediaeval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality. And so, where many a mediaeval thinker would ultimately identify law with the will of God, in modern times it will be regarded as the will of the State.

THE REFORMATION

The second aspect of this intellectual revival is the Reformation. The study of Greek led scholars to examine the New Testament in the original tongue, and soon they began to interpret it in the light of private judgment instead of following traditional custom. This abandonment of custom is highly significant of the change from mediaeval to modern times. The attempt to reconstruct Christianity from the New Testament and the earliest fathers meant a denial of over a thousand years’ growth and development in Christianity, based upon custom. This denial of the validity of theological development operating through custom and slowly shifting tradition had its parallel in legal history. Custom tends to be depreciated more and more by the State, until finally the legal restrictions within which it is confined eliminate it as one of the major sources of law. In other words, the State and the central organs of government, the courts and the legislature, are becoming the sole source of law.

The quarrel of Henry VIII with the papacy was for a time purely mediaeval in its character. Many a king and noble had been involved in similar matrimonial tangles and had incurred the displeasure of the Holy See. There was even mediaeval precedent for the confiscation of monastic property and the limitation of appeals to the papal court, but the modern spirit appears when the quarrel is carried a step further, and the doctrinal basis of Catholicism is questioned. With the reign of Edward VI the Reformation is definitely accepted as a political weapon against Rome, and (after a short reaction under Mary) the early years of Elizabeth made it the permanent basis of English political and religious life.

THE REFORMATION AND THE LAW

This attack upon the foundation of the Church was bound to undermine the mediaeval State as well. Church and State had frequently Edition: current; Page: [42] quarrelled during the middle ages, but it was the very intimacy which existed between them that provoked dissension. They were not two different powers, but merely two aspects of the one divine mission of ruling the souls and bodies of men by law. Law in the theological sense, and law as the lawyer knew it, were both based upon the same foundation—the will of God as expressed through authority (whether ecclesiastical or royal), tradition and custom. To attack the authority of the Church was therefore to attack the whole mediaeval system of law. Just as the Reformers went behind traditional Christianity to the historical sources, so there was a movement to go behind traditional law and seek for its origins. A striking example of this is the growth of two schools of Roman law, the first of which was content with Roman law as it was modified by mediaeval custom, while the second insisted upon a return to the strict letter of the classical texts.

The attack upon the traditional basis of mediaeval Christianity had its counterpart in political theory. It soon became evident that as a result of the Reformation, religion was no longer to be universally admitted as the basis of civil government. The foundations of religion had been shaken, and were differently interpreted in different countries and by different thinkers. As substitutes, various theories were proposed. In a number of them “the people” were brought into the reckoning, and attempts were made to base the theory of government upon the idea that kings existed for the convenience of their subjects, instead of (as in the middle ages) both king and people working together for the glory of God. An early form of this idea is to be found in the controversies during the sixteenth century upon the question (at that time very topical) whether a bad king could be properly assassinated by his outraged subjects. Later still it was proposed that kings, that is to say, the State, and all the forces of government, including law, are based upon a contractual relationship between ruler and subject. Some were prepared to assert this as an historical fact; to others the contract was merely to be presumed from existing circumstances.

THE REFORMATION AND THE CONSTITUTION

This secularisation of law had its effects upon the constitution. In England, as in several other States, government fell into the hands of the professional administrator, and “reasons of State” placed in his hands an extremely wide, over-riding discretion. In England this took the form of the dominance of the Council under all the Tudor sovereigns, and in the rise to importance of the office of Secretary of State. As long as Queen Elizabeth lived she was generally able to maintain this novel supremacy of the administration above the old feudal legalism, which was timidly asserted from time to time by the common lawyers. Only in her very last years did she suffer an occasional reverse. In general terms the conflict between the Council and the courts, between Edition: current; Page: [43] administration and law, is the theme of sixteenth- and also of seventeenth-century history, and its origins are clearly to be traced back to the Reformation and the resulting disorganisation of mediaeval political thought. During all this period the typical common lawyer was generally on the conservative side. He still pored over mediaeval books, he practised in mediaeval courts, and was often suspected of being secretly an adherent of the old religion. There was, therefore, a tendency to look outside of the legal profession for men to fill administrative posts, and it was to the civilians that Henry VIII turned when he was founding or reorganising such administrative courts as the Privy Council, the Star Chamber, the Court of Requests, the Court of High Commission, the Council of the North, the Council of Wales, and the rest.

Attendant upon the Reformation came the Church settlement. It is a striking feature of Henry VIII’s reign that he was able to use Parliament itself as a convenient machinery for effecting the complicated settlement. The results were momentous. Parliament thereby acquired the experience of carrying out measures which were in fact revolutionary. In one statute it declared that the supreme head of the Church was not the Pope, but Henry; in another it confiscated enormous quantities of property which had been held by the Church for centuries undisputed; in another even so sacred a thing as Christian doctrine was restated by Parliament in the Statute of Six Articles; soon it was to establish a prayer-book to replace the age-old formularies hitherto in use. When in later years the powers of the modern State came to be analysed, Parliament held a very large place in the scheme of things. Those who maintained the omnipotence of Parliament found their most striking illustrations in the acts which carried out the Reformation in England. Henry VIII has been well described as the “great architect of Parliament”.1

THE RECEPTION

And, finally, we come to the movement known as the Reception.2 This was a widespread tendency in various countries of Europe to receive the classical Roman law in place of the mediaeval customary law which had only been partially Romanised, if at all. The legal scholars of the day had taken anew to the study of the books of Justinian, ignoring the thousand years of history which had introduced serious modifications in adapting Roman law to current conditions. The same problem arose in England. Traditional Christianity as represented by the mediaeval Catholic Church was replaced by a system which to its adherents seemed simpler, more reasonable and more in accord with ancient history. Ought not a similar reform to be carried out in the sphere of law? Ought not the mediaeval common law which was inexpressible in any decent Edition: current; Page: [44] language, French, Latin or English, to be replaced by the pure and ancient doctrine of the Digest? This question was seriously considered. Reginald Pole, cardinal and last of the Yorkist line, who stood equally good chances of becoming King of England or Pope, had committed himself to the idea. Henry VIII was well aware of the merits of the civilians, and founded the still existing Regius Professorships at Oxford and Cambridge for the propagation of their learning. As administrators and as judges in the prerogative courts their influence was paramount. They also maintained an ancient feud with the canonists and the papacy. But against the courts of common law they stood little chance of success. The close organisation of the profession and the numerous vested interests which it contained, the strong tradition of its educational system centring in the Inns of Court, and the practical impossibility of superseding the courts by a newer system, had the result of entrenching the common lawyers within the tangles of their feudal learning, which, moreover, had become the basis of every family fortune in the land. We venture to suggest that once again the common law stood impregnable upon the foundations laid by Henry II. It was he who gave the common law its firm grip upon the land, and for the future the more elaborate the land law became and the more subtly it contrived to entangle both present and future generations in the maze of real-property law, the more impossible it became for the landed classes to contemplate any interference with the system which assured to them and their children the complicated benefits of inheritance. In Germany, France and Scotland the Reception was accomplished with varying degrees of thoroughness; but not in England. Nevertheless the common law for a time had to maintain a stubborn defence, and for the first time in its history it made a definite alliance with the members of the House of Commons, who were equally willing to accept the aid of the lawyers. In this way were laid the foundations of the coalition between the House of Commons and the common law which was to dominate English history during the seventeenth century.

The Tudor period had its own social problem. The transition from serfdom to copyhold was nearly complete, but nevertheless there was considerable economic distress, and from the later years of Queen Elizabeth proceeds a stream of legislation dealing with unemployment and the relief of paupers, while the mediaeval machinery for the fixing of wages was kept in steady operation and even enlarged. Then, too, we find English writers for the first time taking an interest in such topics as international law and in the international aspects of commercial and maritime law, of which we shall speak later.

TUDOR LEGISLATION

Finally some words must be said on the extremely important legislation of the Tudor sovereigns. The reign of Henry VIII saw an outburst Edition: current; Page: [45] of legislation which is almost comparable to that of Edward I. The great statutes which carried out the Reformation have already been mentioned, and their importance exceeds even their position as the foundation of the Church of England, for they were astonishing examples of the almost limitless powers assumed by Parliament. Besides this, a good deal of legislation was concerned with treason, illustrating the growth of the idea of the State and the inadequacy of merely mediaeval law for its protection against the new dangers which its own activities had aroused.1 Of the rest of Henry VIII’s legislation we must mention the Statute of Proclamations (1539). Although soon repealed it is nevertheless highly significant. The old view that this statute constituted a sort of Lex Regia conferring upon the Crown the power of wide legislation without the concurrence of Parliament has been abandoned.2 The growing complication of government had brought the proclamation into prominence for the first time as a useful means of supplementing statute law on points of detail, and of carrying out those processes which to-day are effected by administrative bodies with powers delegated from the legislature. The latest and best opinion is that

“the existing law was obscure and the inconvenience of this obscurity was not likely to be overlooked by a King who was remarkable for his political prescience. Henry VIII’s Statute of Proclamations was an extremely able attempt by King and Parliament to deal finally with the problem in a manner which should commend itself to the public opinion of the day.”3

The statute provided that in cases of emergency the King and Council may issue proclamations which shall have the force of an act of Parliament. They were to be published in a manner prescribed by the act, and offenders against them were to be tried by a board of councillors named in the act, constituting, as it seems, a special tribunal for the enforcement of proclamations.4 This device is certainly in accord with Henry VIII’s general policy of erecting special courts for special business, instead of enlarging the jurisdiction of the old common law courts. The second section of the statute contains carefully drawn safeguards to prevent proclamations being used in an oppressive manner; the principles of the common law, existing acts of Parliament, and property rights were put beyond the reach of proclamations. Moreover, it is equally clear that the use made of these powers by Henry VIII and his Council was moderate and reasonable; there is no evidence that the King hoped by means of proclamations to establish an absolutism or to supersede the legitimate activities of Parliament. The immediate occasion for the act was the refusal of the judges to give effect to certain Edition: current; Page: [46] proclamations by which, as an emergency measure, the government had attempted to control dealings in corn at a moment of scarcity.1 There is nothing in the numerous proclamations which have come down to us which would suggest that the act was accompanied by any serious change in their contents or their numbers, nor did the repeal of the act in 1547 prevent the constant use of proclamations by Queen Elizabeth. There is much to be said for the view put forward by Sir Cecil Carr, who suggests that its principal effect was of a more subtle order. It is one of those acts which, by conferring on the Crown powers which it already possessed, made it seem that those powers were really the gift of Parliament. Under the guise of strengthening the prerogative, it therefore really weakened it when, in after years, the implications of the act were judged from a different standpoint.2 If this is so, then an interesting parallel is to be found in the unexpected results drawn from the famous Star Chamber Act of 1487.

The two other great statutes of this reign, the Statute of Uses and the Statute of Wills, must be considered more at length in discussing the history of real property.3 Here it will be sufficient to mention them and to premise that their policy was dictated by deep political causes and required a good deal of bargaining between the Crown and different classes of society. At the basis of them lies the grave movement of agrarian unrest which was to produce several insurrections under Henry VIII and Edward VI.

THE CLOSE OF THE TUDOR AGE

With the reign of Queen Elizabeth (1558-1603), and especially the second half of it, we come to a sort of uneasy peace. The Reformation is an accomplished fact; the various attacks upon the position of the Crown, whether from domestic pretenders or from foreign foes, had definitely failed; the deposition of Queen Elizabeth by papal bull and the attempt to execute it by foreign invasion had likewise failed; the defeat of the Spanish Armada (1588) had given to England security upon the sea, and henceforward there was to be no serious question of foreign interference with her domestic politics—at least openly. In the sphere of law there is a similar feeling of problems having been settled or at least shelved; the common law courts begin to revive; the momentous legislation of Henry VIII is being absorbed; a new generation of lawyers brings fresh life to the old system, and a sincere attempt is made to stretch the common law to the measure of the growing needs of the nation. Parliament, although less frequently summoned, was settling its sphere of activity within the enlarged boundaries which Henry VIII’s Edition: current; Page: [47] reign had assigned to it. The House of Commons was growing steadily more important; it attracted men of great ability and was establishing close contact with the administrative side of the government. It is during this period that officials, secretaries of state, and members of the Privy Council begin to appear explaining and defending their policy before the Commons and acting as a liaison between the government and the governed. Although the Tudor age at first sight seems to end upon a quiet note, nevertheless there are indications that a loyal and devoted respect for the great Queen had a great deal to do in preventing the Commons from insisting too pointedly upon matters where they differed from the Crown. The extraordinary knowledge of human nature which Queen Elizabeth possessed, together with her admitted ability and prestige, had enabled her to prevent the raising of difficult questions; upon the first signs of trouble a motherly scolding was usually effective in reducing the House of Commons to respectful silence and even apologies. In the meantime the House developed a considerable degree of control over its own procedure, and discipline over its members. The constant enlargement of “parliamentary privilege” helped a great deal in establishing a spirit of united self-consciousness in the House, and the precedents themselves stood in good stead in the succeeding troubles with the Stuarts. In short, the quiet closing days of Queen Elizabeth’s reign were in fact a period of armed peace, interrupted, it is true, by a few significant incidents, during which both Crown and Parliament were quietly strengthening themselves for a conflict which both of them seemed to apprehend. It must never be forgotten that the Tudor monarchs were wise enough and strong enough to use Parliament as an implement of their policy, but that the success of this method depended upon the monarch commanding the personal devotion of the Commons, both by reason of a policy which was at least to some degree popular, and of the certainty that the Crown really did stand for the good of the realm. When the Commons begin to doubt whether the King is more concerned for his own or the nation’s interest, then this working alliance between Crown and Parliament will cease. There is no longer any question of a feudal nobility stepping into the breach; if the Crown cannot govern to the satisfaction of the nation, then the House of Commons will be compelled to undertake the government itself. This brings us to the Stuart age.

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CHAPTER 7: THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW

SUMMARY page
Political Speculation 48
The Supremacy of the Common Law 50
The Growth of the Conflict 52
The Church in Politics 53
The Courts during the Interregnum 54
Reforms at the Restoration 55
The Statute of Frauds 55
The Habeas Corpus Act 57
The Stop of the Exchequer 58
Restoration of Church and Prerogative 59
The Bill of Rights 59
The Act of Settlement 60
Revolutions and Political Theory 61
Thomas Hobbes 61
John Locks and the Revolution 62

Much new light has been thrown upon the history of the seventeenth century, and large masses of new documents have become available since Hallam wrote his classical Constitutional History over a century ago.1

POLITICAL SPECULATION

The seventeenth century was an age when conscious and deliberate political theory entered the arena of practical politics. At the same time there were undoubtedly important economic factors which played a large part in the conflict. Religion also added endless complications to an already baffling situation. Elizabeth held the reins of Church and State, but the Church itself had been based upon a denial of tradition and authority; the Church consequently had no answer to fresh denials, save to shelter behind the throne. To an extraordinary extent public thought was turning to various forms of sectarianism, and speculation very frequently took the form of theological controversy. The theory of the State was less developed. The age of the Tudors and of the Edition: current; Page: [49] Reformation had for the moment carried practice far ahead of political theory, and the pressing business of administration had overshadowed the more sober business of law. The great names in the age of Elizabeth are not those of lawyers or of judges, but of councillors and secretaries. Against the administrative State there was bound to be a reaction, especially when the nation began to doubt the wisdom of the policies pursued. The spirit of theological questioning was to be extended to the State, and so the uncertainty of the foundations of religion, and the breakdown of the old theories of ecclesiastical authority in the established church, resulted inevitably in the bewilderment of those who sought for the foundations of the State as well. In the end, attempts were made to use the few remnants of mediaeval thinking. The Crown naturally turned to the doctrine of the divine right of Kings, but interpreted it in a narrow sense which a mediaeval philosopher would hardly have recognised. In this way the old doctrine of the divine origin of civil government became restricted to a particular form of government, that is to say, a monarchy, and to a particular section of that form, the King himself. In opposition to all this, the revival of the common law brought back a view which more nearly represented the mediaeval attitude. This view was drawn to a large extent from the pages of our greatest mediaeval lawyer, Bracton, whose celebrated work on the laws of England was first printed in 1569 and again in 1640. In this book Sir Edward Coke and other common lawyers found the simple mediaeval doctrine of the supremacy of law. In an alleged altercation between James I and the great Chief Justice the issue was clearly expressed: James, by his prerogative, claimed to be above the law by divine right, and to this Coke replied by quoting the memorable words of Bracton: “The King is subject not to men, but to God and the law.”1 In other words, Coke was prepared to revive the age-old dogma that law, divine in its origin and sanction, is the basis upon which civil society is built, and that this law is supreme above King and people equally. The theory of the divine right of Kings, on the other hand, ascribed this religious character to one branch only of the machinery of government, the King. Soon it became evident that there was danger of the latter doctrine combining with the newer notions of the State (resembling somewhat the theories of irresponsibility which a later age was to produce), to create thereby a sort of “Leviathan”—to use the later term of Hobbes. Regarded in this light, the conflict of theory between Crown Edition: current; Page: [50] and Parliament is one between the mediaeval view of a paramount divine law, supreme over every aspect of government, and an attempt to transfer this divine sanction to a monarch who is also to embody the State in the more modern aspect of the word. From this point of view, Parliament represents the conservative side and the Crown the side of innovation. From another angle, however, the positions might appear to be reversed. When it came to the details of the actual powers which the Crown had exercised in the past independently of parliamentary control, it was a plausible argument for the Crown to insist that it was, in fact, basing its position upon mediaeval precedent. This was particularly true on various matters of indirect taxation which the middle ages had left in great obscurity. In asserting control over these matters, the House of Commons laid itself open to historical arguments of considerable force, which would have been stronger still if the Crown had been able to secure the services of antiquaries as learned and zealous as those of the parliamentary party. Even so, when it came to the judicial interpretation of mediaeval precedents, the courts more than once had to find for the Crown—and we are at perfect liberty to assert that the judges who made these decisions reached them honestly and properly upon the historical evidence available to them, although they often spoilt the effect by gratuitously introducing a good deal of dogma on divine right. The historians of a later age, imbued with partisan spirit, have certainly exaggerated their wholesale accusations of subserviency against the Stuart judges. From this point of view, therefore, it is the Crown which seems conservative and Parliament the innovator. However, the Commons were fortunate in possessing several antiquaries of truly prodigious learning; William Prynne, for example, had read enormous quantities of mediaeval rolls. Sources which are voluminous even in modern reprints and abstracts, Prynne could quote at great length from the original manuscripts, which he had studied by candlelight in the dank vaults of the Tower. Only those who have had to spend many hours with mediaeval records can appreciate the immensity of his labours. As we have already mentioned, the ambiguous rolls of the fifteenth-century Parliaments were a particularly rich mine for the opposition, being easily susceptible of interpretations in their favour.

THE SUPREMACY OF THE COMMON LAW

From what has just been said it will be clear that the frank acceptance of the principle that current problems were to be settled upon the basis of antiquarian research might work both ways, and in fact the very honesty with which it was followed has had the effect of making some judges give inconsistent decisions. At times, Sir Edward Coke seems to be a champion of prerogative, although at other times he is one of the most intrepid of parliamentarians. He must not be blamed too Edition: current; Page: [51] much for these inconsistencies1 which were really implicit in the whole of the parliamentarian argument. He himself seems aware of this weakness, and to remedy it he fell back with great ingenuity upon a position which he skilfully developed, and which has had immense influence, especially in America:

“Urged by a presentiment of the coming conflict of Crown and Parliament, he felt the necessity of curbing the rising arrogance of both, and looked back upon his country’s legal history to find the means. This instinctive appeal to history for guidance was characteristic, and the choice of a legal rather than any other solution was amply justified by the remarkable continuity and stability of English law during the vicissitudes of the seventeenth century. His attitude is aptly expressed in one of his own picturesque phrases. ‘Let us now peruse our ancient authors,’ he wrote, ‘for out of the old fields must come the new corne.’ So it was in this spirit that he laboured at the ancient patrimony of his profession, those short, thick folios of black-letter Year Books, and from their forbidding mass of obsolescent technicalities raised a harvest of political theory which was destined to be the food of far-distant states to which he had never given a thought.

“The solution which Coke found was in the idea of a fundamental law which limited Crown and Parliament indifferently. What that law was, its nature and its contents, were questions as difficult as they were insistent—and, as subsequent events showed, capable of surprising solutions. The nearest we find to an explicit definition of this fundamental law is the assertion of the paramount law of ‘reason’. For the rest, the common lawyer’s ‘reason’ is left in as much uncertainty as he himself ascribed to the Chancellor’s equity. Moreover, Coke was prepared to advance mediaeval precedent for his theory, and in so doing has drawn upon his head the criticisms of later investigators. Just as these criticisms are, from the point of view of modern scholarship, it is only fair to the Chief Justice to insist that his view of history was not ours, and that it is only by the standard of his own day that a true evaluation of his learning and intellectual honesty can be formed. Although it must be confessed that even then he cannot be found altogether faultless, yet it is believed that a sufficient explanation will be found to establish his bona fides. His doctrine is certainly based largely upon mediaeval precedents and the extent to which they justify it is an interesting subject for investigation. But if we reach a different estimate from his of the Year Book authority for his dogma, this must not be taken as necessarily involving a severe censure of Coke. He himself has told us that though the fields are old, the corn is new.”2

This doctrine was first proclaimed by Sir Edward Coke in his judgment in Dr. Bonham’s Case (1610),3 and for nearly a century afterwards the idea that the common law could be regarded as a fundamental law seemed attractive to certain minds. The Crown viewed the new theory with alarm, and Coke was ordered by the government to explain his doctrine and to “correct” his reports.

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THE GROWTH OF THE CONFLICT

A solution so simple as this frank return to the mediaeval idea of law could hardly have a chance amid the riot of party passion which was soon aroused. In this place we shall be content with only a very brief summary of the stirring events which occupy the reigns of James I and Charles I.1 To begin with, we have a long series of precedents on the subject of parliamentary privilege such as Shirley’s Case (1604),2 and Darnel’s or the Five Knights’ Case (1627).3 The powers of Parliament were further asserted in impeaching unpopular ministers. Worse still, the procedure by bill of attainder was revived. Then again a long constitutional conflict arose over matters of taxation. The obscurities of this subject during the middle ages had never been thoroughly cleared up, and there was a good deal of justifiable doubt as to the powers of the Crown in this respect. Bate’s Case or the Case of Impositions (1606)4 decided that the Crown without the concurrence of Parliament could increase the rate of customs duties. A variety of other expedients were devised for raising money, such as the revival of the forest dues and the demand for ship-money. This latter was contested in Hampden’s Case (1637),5 which also was decided in favour of the Crown. It is noteworthy that previous to the trial the King called upon the judges to give him an extrajudicial opinion upon the questions at issue. Their answers were in favour of the Crown and were ordered to be read publicly in the Star Chamber and enrolled in all the courts of Westminster. In the midst of this conflict Sir Edward Coke was compelled to take a side, and finally became one of the leaders of the parliamentary party. The crisis came in 1616 when the Case of Commendams6 raised some technical points of ecclesiastical law and the validity of a royal grant in commendam. Coke’s dissenting opinion in this case immediately brought about his dismissal from office. Events steadily moved to a climax. The House of Commons defended its privileges fiercely and claimed complete freedom from royal interference for its debates and its members. At the same Edition: current; Page: [53] time the House was assuming control over every source of revenue and was deliberately using the power of the purse in an attempt to compel the Crown to dismiss ministers, and to pursue policies at the dictates of the Commons. It is this claim which makes the history of the seventeenth century so totally different from that of preceding ages, save, perhaps, the superficial resemblances in some respects which are to be found in the fifteenth century, while the Lancastrian monarchy was extraordinarily weak. Finally, the Commons embodied their demands in the Petition of Right1 (1628) which contained a long list of grievances. Rehearsing a number of statutes and several provisions of the Great Charter, the Commons declared that arbitrary imprisonment is unlawful and that a Privy Council warrant setting forth the King’s special command shall be no sufficient return to a writ of habeas corpus. The unreasonable billeting of soldiers and the trial of civilians by martial law were likewise denounced.

THE CHURCH IN POLITICS

From 1629 to 1640, Charles I contrived to rule without calling a Parliament. Grievances were steadily accumulating. The Church of England (unwisely led by Archbishop Laud) was suffering more and more from the spread of dissent, and it was inevitable that the Church and the Crown should make common cause against those who combined a dislike for the establishment with anti-royalist principles. The laws already existing against nonconformists were enforced with great harshness by those courts which were most amenable to royal influence—the Star Chamber and the Court of High Commission. Consequently, the conflict was still more embittered by the introduction of a religious feud. Finally the Church question was to be the ruin of Charles. He rashly undertook to impose Anglicanism in Scotland upon a people whose religious fanaticism even exceeded his own. A war was the immediate result and then came inevitably the summoning first of the short Parliament (1640), and then of the long Parliament (1640-1660). By this time, Parliament was master of the situation. The Earl of Strafford and Archbishop Laud were attained and put to death. Ship-money was abolished; so also were the Courts of Star Chamber and High Commission, and a statute was passed to prevent a dissolution without Parliament’s own consent. The Church and the universities were both attacked, and Charles replied by impeaching before the House of Lords five members of the Commons, a proceeding which the Commons claimed was their sole privilege. The House vigorously defended its members, and when the King in person came to order their arrest, the word “privilege” was uttered loud enough for him to hear. From this date (1642) the Civil War became inevitable. All sense of moderation was lost and in 1649 a revolutionary tribunal condemned and executed Edition: current; Page: [54] the King. From 1649 to 1660 various forms of government were devised which are of great interest as early examples of the erection of readymade constitutions. Most important of all was the Instrument of Government, a document which purported to be a fundamental constitution which was to be unchangeable save by particularly complicated machinery. This document, therefore, may be properly regarded as a prototype of the written fundamental constitution, as it is known to American public law.1

THE COURTS DURING THE INTERREGNUM

Although Sir Edward Coke had found it impossible to avoid taking a vigorous part in national politics, his successor, Chief Justice Hobart, succeeded in winning the confidence both of the royalists and the parliamentarians. In fact, the courts were well served during the period of the Commonwealth; Henry Rolle became Chief Justice of the “Upper Bench”, while Sir Matthew Hale sat in the Court of Common Pleas during the Commonwealth and won royal favour after the Restoration. It is interesting to note that a good many anticipations of modern legal reforms were proposed during this period although it is hardly necessary to say that most of these premature advances ceased at the Restoration. Among them we may mention the settlement of the jurisdiction of the various courts in order to prevent the scandalous competition between them. Chancery, which had been bitterly attacked by Sir Edward Coke, undertook to reform itself; ecclesiastical jurisdiction had already been abolished. The growth of overseas commerce provoked the reorganisation of the admiralty courts, while district courts for small claims were proposed. Legal education was revived in the Inns of Court and legal records were for a time in English. A good deal of thought was given to a projected codification of the law, and a system of registering titles to land was likewise proposed. As early as 1648 an essayist suggested that there should be only two legal estates, fee simple and for life, abolishing the entail entirely. Rather less creditable was the proposal to restrict the equity of redemption to very narrow limits;2 it is difficult to resist the conclusion that this project emanated from the military and financial interests who were deeply engaged in speculative, and sometimes corrupt, operations in land.3 The eleven short years of Republican rule were too much filled with war and high politics and religious dissension for these proposals to reach any very practical result, and the restoration of Edition: current; Page: [55] Charles II, in 1660, automatically restored the state of affairs as it existed at the eve of the civil war.1

REFORMS AT THE RESTORATION

The movement had its results, however, for Charles II’s reign was in fact a period of legal reform. At the very commencement tenure in chivalry was abolished. This abolition of a great deal of mediaeval law relating to such subjects as wardship, marriage and military tenure was counterbalanced, however, by an increase in complexity in other departments of the law of real property. There may be a certain amount of truth in the suggestion that has several times been made, that periods of civil disturbance have been frequently accompanied by the development of new devices by the conveyancers with a view to tying up property in land so as to put it, as far as possible, beyond the reach of such political accidents as forfeiture and improvident management. Thus the fifteenth-century landowners seem to have resorted to the use as a protection—which the legislature soon defeated, however—against the frequent forfeitures of legal estates attendant upon the Wars of the Roses. So in the seventeenth century the widespread confiscations of royalists’ properties2 during the period of the Commonwealth was accompanied by numerous developments in the art of conveyancing which from this date onward reached an astonishing degree of technicality.

THE STATUTE OF FRAUDS

The reign of Charles II saw the enactment of the Statute of Frauds (1677). This statute has been so constantly before the courts from that day to this, and has been adopted in so many jurisdictions, that a few words must be said as to its origin and policy. There exist a number of drafts and projects of legislation which illustrate quite clearly the problem involved.3 A detailed examination of these drafts confirms the claim of Lord Nottingham to the principal share in its authorship, although a number of additions and improvements came from other hands. Like every piece of legislation it must be judged from the standpoint of the place it held in the legal system as it then existed. If, in the course of the centuries, conditions have so changed that a piece of old legislation no longer conduces to justice, then the blame for the situation must obviously lie not upon the original authors of the statute but upon the legislatures of to-day. The lawyers of the seventeenth century had the courage to meet a serious situation by deliberate legislation, and Edition: current; Page: [56] we can do no less. If the statute has proved in some respects unsatisfactory under modern conditions, then the remedy lies in our own hands. We shall therefore examine for a moment the position which the statute occupied in the environment wherein its makers placed it.

To begin with, it must be remembered that jury trial in 1677 was still essentially mediaeval.1 The modern device of ordering a new trial when the verdict is clearly against the weight of the evidence was in its infancy. Again, at this date the law had barely begun to acquire experience in the handling of parole evidence; such rules as did exist were ancient and obstructive, for parties to the action, their husbands, and wives, and all other persons interested in the outcome of the litigation were incompetent as witnesses. It is obvious, therefore, that the law was faced with two alternatives in 1677: either the whole law of evidence as it then existed would have to be scrapped and replaced by a hastily improvised system upon modern lines, or else parties who desired legal protection for their transactions must be compelled to take the precaution of embodying them in documents whose contents and authenticity were easily ascertainable. The first alternative in point of fact hardly existed; it has taken two centuries of hard experience to develop the law of evidence thus far, and a great deal still remains to be done. It was only reasonable, therefore, that the profession, guided by Lord Nottingham,2 should have adopted the second policy; and from what has just been said it will surely be clear that under the circumstances they followed the only practicable path.

As far as these provisions refer to transactions concerning land there has been less serious cause for complaint. It is in matters of trade and commerce where business habits have always been to a large extent informal, that the principal difficulties have arisen. But there is surely some force in the argument that there should be, in common prudence, some impersonal evidence available when serious matters are at stake. “To be fair to its framers, we should, I think, remember three things”, writes Sir William Holdsworth. “Firstly, the law of contract was as yet young; it had been developed wholly by decided cases; and it had very few rules as to the characteristics and incidents of particular contracts. It follows that the framers of the statute were legislating on a branch of the law which was not fully developed, and on a topic which had not before been a subject of legislation.”

If a legal system is to depend upon legislation to any extent at all for its readjustment to newer needs, then the principle of legislation must be frankly admitted in its entirety, and the profession must be prepared to undertake a constant and sustained task of securing legislation again and again in order to enable the law to keep pace with the march of events. It is clearly illogical to impose legislation at long intervals, restricting the courts to the comparatively humble work of interpreting the letter, and Edition: current; Page: [57] then, when confusion results, to blame the legislature of two hundred years ago.1

THE HABEAS CORPUS ACT

The period from 1660 to the Revolution of 1689 is, however, more remarkable for its contributions to public than to private law. The one other great legal reform of the reign of Charles II was the passing of the Habeas Corpus Act2 in 1679. The writ of habeas corpus has played such a large part in the struggle for liberty that a short history of it must be given here.3 Like a good many other common law writs, its history can be traced back to the early age when legal procedure and administrative methods were still not distinguished, and, together with the other prerogative writs of mandamus, certiorari and the rest,4 its ultimate origin is in a simple command from the Crown to one of its officials. In the reign of Edward I there were several varieties of habeas corpus serving different purposes, such as to secure the appearance of a defendant or of jurymen. Gradually the courts acquired the habit of issuing the writ in order to bring before them persons who had been committed by inferior jurisdictions—particularly the courts of cities and local franchises. The motive of this policy seems to have been to enlarge the powers of the Courts of Westminster at the expense of local tribunals, and the result was not infrequently confusion and injustice. Parties were even allowed to use this process when they had been committed by judgment of local courts for debt so as to obtain their release and to defraud their creditors. It is not surprising, therefore, to find a steady stream of legislation restricting the scope of habeas corpus.

At the end of the fifteenth century the common law courts had nothing more to fear from local jurisdictions. A new antagonist appeared in the form of Chancery, followed soon after by the Courts of Requests and Star Chamber. The writ of habeas corpus was now turned against this larger game. The common law courts were indignant when Chancery committed parties for suing at common law after they had been enjoined, and Chief Justice Huse proposed to release such prisoners by means of habeas corpus (1482).5 The Courts of Admiralty and High Commission were similarly attacked, but it was in the seventeenth century that habeas corpus fought its greatest battle. The Crown had established the right of imprisoning without trial upon a warrant signed by the Secretary of State and a few Privy Councillors, alleging “her Majesty’s special commandment”.6 Against so serious a claim Edition: current; Page: [58] of State absolutism habeas corpus became in the words of Selden “the highest remedy in law for any man that is imprisoned”.

Throughout the Stuart period habeas corpus was steadily used and improved by the courts of common law. But procedural difficulties stood in the way. Darnel’s Case1 had shown doubts; the special command of the King was nevertheless there held to be a sufficient return, and this rule was only abolished by the Petition of Right.2 There were also doubts as to which courts were competent to issue it. Many of these defects were remedied in the Habeas Corpus Act3 of 1679, which after much discussion finally passed the House of Lords—and then only owing to a mistake in the counting of the votes, so the story goes. By this act any judge during term or vacation must issue the writ unless the prisoner is obviously committed by lawful means. Prisoners are not to be imprisoned beyond the realm, and the writ is to run in all privileged places. Later legislation at various dates introduced still further improvements. Some striking examples of its use in more modern times are Sommersett’s Case,4 where a writ of habeas corpus released a negro slave from confinement in a ship on the Thames, on the ground that an allegation of slavery was not a sufficient return. In 1798 the writ was used to ensure a trial at common law of a prisoner, Wolfe Tone, who had been condemned by a court-martial.5

THE STOP OF THE EXCHEQUER

There is one other incident in the reign of Charles II which must be mentioned, for it introduces us to a more modern element in law and society. Merchants and tradesmen who had the means frequently made loans as a subsidiary to their normal business. The scriveners (professional writers of “court-hand” who engrossed legal documents) were particularly associated with this business in the reign of Elizabeth, but after the Civil War and under the Restoration it was the goldsmiths who became most prominent. Moreover, these goldsmiths invented a few variations which really turned the old casual money-lending into professional banking. They accepted deposits from customers, at first merely for storage in their vaults, but soon in the more modern sense of deposits against which they issued notes.6 Already in Charles II’s reign, such deposits could be drawn upon by the customer’s cheque. The goldsmiths became financiers, discounted bills, and also purchased tallies (receipts for money lent to the Exchequer). These tallies were Edition: current; Page: [59] sometimes sold direct to the goldsmiths by the Exchequer,1 thus serving as the machinery whereby the government raised short-term loans, and in 1672 the Government found itself unable to meet them when they became due. This crisis was called the “Stop of the Exchequer” and had serious results for the goldsmiths and their depositors. Recent research suggests that the King’s motives may have been less fraudulent than the Whig historians asserted, and that the resulting ruin has been grossly exaggerated.2 Here we are concerned only with the more general significance of the rise of banking and public finance with the need for new legal principles to govern them, and with the great Bankers’ Case3 growing out the stop of the exchequer which settled the constitutional question of the right to bring a petition of right.

RESTORATION OF CHURCH AND PREROGATIVE

The reign of Charles II saw the re-establishment in a harsher form of the Church of England, and the short reign of James II witnessed a rapid crisis. The determination of that monarch to pursue a religious policy which was contrary to that solemnly laid down by Parliament in a long series of statutes was the immediate cause of his fall. It may have been that his project of complete toleration for Roman Catholics as well as Dissenters was intrinsically an advance upon the partisanship of the Church as represented in Parliament. But it is impossible to discuss the merits of the policy when the methods of its promotion were so drastic and so completely contrary to the spirit of contemporary institutions. James II claimed that by his prerogative he could dispense individual cases from the operation of a statute; more than that, he even endeavoured to suspend entirely the operation of certain of the religious laws. Upon this clear issue the conflict was fought out. After an ineffective show of military force James II retired to France, William III of Holland was invited by Parliament to become joint ruler with his wife, Mary II, James’s daughter, and so “the great and glorious revolution” was accomplished. The terms of the settlement were embodied in the last great constitutional documents in English history, the Bill of Rights (1689) and the Act of Settlement (1701).

THE BILL OF RIGHTS

The principal portions of the Bill of Rights4 are as follows:

“That the pretended power of suspending of laws, or the execution of laws, by regall authority, without consent of Parlyament is illegall.

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“That the pretended power of dispensing with laws, or the execution of laws, by regall authoritie, as it hath beene assumed and exercised of late, is illegall.

“That the commission for erecting the late Court of Commissioners for Ecclesiasticall Causes, and all other commissions and courts of like nature, are illegall and pernicious.

“That levying money for or to the use of the Crowne by pretence of prerogative, without grant of Parlyament for longer time or in other manner than the same is or shall be granted, is illegall.

“That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegall.

“That the raising or keeping a standing army within the kingdome in time of peace, unless it be with consent of Parlyament, is against law.

“That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.

“That elections of members of Parlyament ought to be free.

“That the freedome of speech, and debates or proceedings in Parlyament, ought not to be impeached or questioned in any court or place out of Parlyament.

“That excessive baile ought not to be required nor excessive fines imposed; nor cruell and unusuall punishment inflicted.

“That jurors ought to be duely impannelled and returned, and jurors which passe upon men in trialls for high treason ought to be freeholders.

“That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

“And that for redresse of all grievances, and for the amending, strengthening, and preserveing of the lawes, Parlyament ought to be held frequently.

“And they doe claime, demand, and insist upon all and singular the premisses, as their undoubted rights and liberties; and that noe declarations, judgments, doeings or proceedings, to the prejudice of the people in any of the said premisses, ought in anywise to be drawne hereafter into consequence or example.”

THE ACT OF SETTLEMENT

After the death of Queen Mary (1694), William III ruled alone, until he in turn was succeeded by her sister, Anne (1702-1714), who was therefore the last of the reigning Stuarts; in order to secure the succession, the Act of Settlement was passed in 1701 which not only limited the descent of the Crown (in accordance with which the present royal family reigns) but also added a few constitutional provisions supplementary to those of the Bill of Rights. It required the monarch to be in communion with the Church of England, and not to leave the country without parliamentary consent—an irksome provision which was soon repealed. Membership of the Privy Council and of Parliament was limited to British subjects of British parentage. It was likewise provided “that no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons”. This attempt to limit the Crown’s influence in Parliament was subsequently amended1 in order to permit ministers of the Crown to sit in the House of Commons by allowing them to seek re-election after their appointment to a salaried office. Such was the practice until 1926, when the need for Edition: current; Page: [61] re-election was abolished. Another chapter provided that judges should hold office during good behaviour at fixed salaries, and that they should only be removable by His Majesty upon an address of both Houses of Parliament; the complete independence of the bench was therefore permanently established.

REVOLUTIONS AND POLITICAL THEORY

The changes and chances of seventeenth-century politics had produced a great number of varying theories concerning the State and the nature of government. In the beginning of the century divine right was ranged against a parliamentarianism which looked to the middle ages for its justification. The period of the Commonwealth accustomed people to see a succession of different forms of government set up and then deliberately pulled down. The lesson was clear: the people had in their hands the power and the right to set up forms of government according to their fancy. A large number of political thinkers of different schools took up this idea, and were prepared to treat existing governments as if they had been the deliberate product of popular action. It merely remained to ascertain exactly what policy the people had proposed to pursue when they did this. We consequently find many different suggestions as to the form which this original contract, as they regarded it, received. The seventeenth century and much of the eighteenth were occupied in searching for forms of contract which should afford a reasonable justification for political society, either as it existed, or as the philosopher thought it ought to exist.

THOMAS HOBBES

Out of this welter of speculation only a few names can be mentioned here. Undoubtedly the most remarkable of them was Thomas Hobbes, whose greatest work, The Leviathan,1 appeared in 1651. Unlike almost all of his contemporaries, he entirely rejected the study of history as having any bearing on political science; instead, he pinned his faith to “geometry, which is the only science that it hath hitherto pleased God to bestow on mankind”—words which have a strangely familiar sound in these latter days. His outlook was entirely materialistic. All knowledge is derived through the senses; every idea is the result of an effect produced upon an organ of sense by the motion of an external object; felicity means success in getting what one wants. Were it not for civil government, life would consist of the ruthless competition of unmoral men for desirable things, and would be “solitary, poor, nasty, brutish and short”. It is only the tremendous power of the State which protects the natural man against himself and his fellows, and from this power are derived the ideas of justice and property—for in the pre-civil Edition: current; Page: [62] State “that only is a man’s that he can get, and for so long as he can keep it”. Where other thinkers had conceived of society as involving a contract between ruler and subject, Hobbes devised a completely different scheme. According to his view, helpless and miserable mankind made a contract, every man with another, to submit to a ruler whom they all clothed with authority to govern them. This ruler was no party to the contract and is therefore bound by no limitations. Consequently it is impossible to talk about a sovereign having broken his contract with the nation (which was a common argument in the seventeenth century), for no such contract existed. Nor is there any justification for resistance to the sovereign. We seem to see in these theories a deep impatience with the turmoils of the Stuart period. Neither the antiquarianism of Parliament nor the mysticism of divine right had any meaning to the dry, penetrating, but narrow mind of Hobbes. The troubles of the Commonwealth, deeply involved as they were with religion, are reflected in his treatment of the Church. His own position seems to be that of a deist. He recommends that there be but one Church in a State, and that under the absolute control of the sovereign leviathan; he even asserts that the sovereign necessarily has full authority to preach, baptise and administer the sacraments, and that the clergy only perform these functions by delegation from the State, whose will is the source of both temporal and spiritual law. It is only natural that a century which was so animated by sincere religious dissension should either neglect or revile a thinker at once so original and so cynical.1

JOHN LOCKE AND THE REVOLUTION

If Hobbes represents the desperate longing for an omnipotent peaceful State which was natural in the midst of the darkest hours of the seventeenth century, it is in John Locke (1632-1704) that we find, after the storm had passed, a quiet summary of achievement full of the spirit of compromise. In the nineteenth century when it seemed that the leviathan had indeed come to life, Hobbes was to receive due recognition, but in the eighteenth century it was rather John Locke’s influence which was paramount, for it was he who discovered a reasonable philosophical basis for the whole of seventeenth-century history, and more particularly for the Revolution of 1689. John Locke learned from history something that Hobbes refused to consider. He made a great plea for religious toleration and embodied it in the “Fundamental Constitution” of Carolina, which he drafted in 1669 on the invitation of the proprietors of the province, and his example was to be improved by William Penn in his form of government for Pennsylvania. It is to John Locke that we owe a reasonable theory of limited monarchy which Edition: current; Page: [63] was to become the creed of the Whig party. Locke’s view of the contract was much less extreme than that of Hobbes. In his thought every individual conveys to society as a whole his right of executing the law of nature; all other natural rights he retains. Locke, therefore, brings us back to the old idea that the powers of the State are limited to certain purposes. It is his discussion of the mode in which those powers are exercised which has the greatest interest at the present day. His theory of reserved natural rights leaves a large place for religious toleration, while the limitations he places upon the State are more in accordance with history than is the absolute leviathan which Hobbes conceived. Where Hobbes had considered law to be the command of the State, Locke returned to the notion of natural law—a conception which was easily reconciled with the mediaeval view of law as the will of God. Where Hobbes had made law the tool of the State, Locke regarded it as the guardian of liberty.

Locke declared that the legislature is the supreme power in the State, and from this he deduced certain maxims of constitutional practice which, in fact, were the historical settlement reached at the end of the seventeenth century. And so beginning from general philosophical and theoretical considerations, Locke proceeds to give a philosophical defence of such very practical measures as the Bill of Rights, the Act of Settlement, parliamentary control over taxation, and the whole machinery of limited monarchy.

It seems that Locke was the first modern theorist to propound a doctrine of the separation of powers. He observed that legislation is (or in his day was) an intermittent function, while the executive, on the other hand, must never cease its activity. Consequently, the two are better assigned to different bodies, which, he observes, is almost universally the practice—and here we seem to see an example of that comparative study of institutions which had been prominent in England ever since the days of Fortescue, Sir Thomas Smith and others. In his discussion of the relations between the legislature and the executive, Locke very clearly is thinking of current politics although his treatment is confined to scrupulously general terms. How close this theory was to current practical politics can be seen where he urges the separation of legislature from executive; this object would have been achieved through the passage we have just quoted from the Act of Settlement excluding ministers from the House of Commons, which was passed only four years before the death of Locke.1 Locke’s suggestions on the separation of powers were obviously derived from his observation of contemporary English practice; indeed, the easy way in which he seems to take the situation for granted is an indication that he felt it too obvious to need very detailed theoretical treatment. It is only a century later that his work will be used as a basis for a rediscovery by the great philosopher Montesquieu of a general theoretical doctrine Edition: current; Page: [64] of the separation of powers such as Aristotle and Marsiglio had suggested in ancient and mediaeval times.

John Locke, therefore, may be regarded as expressing to a peculiar degree the compromise and settlement which the nation had reached when the expulsion of the Stuarts and the accession of William III had enabled political passions to die down. His summary of the results of the great conflict remained for many years the justification on philosophical grounds of the compromise which practical politics had reached, and with his work the tumultuous drama of the seventeenth century fittingly ends on a quiet and hopeful note.1

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CHAPTER 8: THE EIGHTEENTH CENTURY: INDUSTRIAL REVOLUTION

SUMMARY page
Agriculture 65
Merchants and Finance 66
The Industrial Revolution 67
Legal Consequences 68
Montesquieu 70
Edmund Burke 71

AGRICULTURE

The eighteenth century is the great dividing line in English economic development between mediaeval and modern times. The central point in its history is usually referred to as the industrial revolution, which was rather, in point of fact, a long and slow process which began to accelerate towards the middle of the century. Its results were to change the face of England completely; its mode of life, its source of wealth, even its colonial possessions were all radically changed as an outcome of this movement. So far the structure of the nation had been essentially mediaeval; so, too, had been its law. If we are to seek the fundamental notes of this mediaeval policy we shall find that they were based upon the fact that the normal occupation of the bulk of the inhabitants was agriculture. The great source of wealth was the land, and such capitalism as existed looked mainly to the land for its profits. The social structure of society was built upon this idea. The legal aspect of all this is clearly visible. Land was the principal form of wealth, and therefore the principal source of power, and the law had to take account of this situation. First of all the King’s Court assumed complete control over the land—and thereby over the landowners. The law of land was rapidly developed to an astonishing degree, and every means was adopted of protecting landed property to the fullest extent. It was only natural that the land should therefore be the symbol of economic and social permanence, and that efforts should be made to perpetuate the social system founded upon it.

Even in the middle ages, however, there were the beginnings of other forms of wealth, and as time proceeds commerce takes an increasing place in national life. Nevertheless for a long time it was the policy of the law to separate the two; it is curious to observe that merchants very nearly became an estate of the realm and occasionally we find what Edition: current; Page: [66] looks like a parliament of merchants;1 there was a chance that in England as in some other countries there might have grown up a House of Merchants in Parliament. The separation of commerce from the normal occupation of the nation was further emphasised by the fact that the merchants had their own organisation and their own law.2 It is only as a result of many centuries of history culminating in the industrial revolution that these barriers were broken down; it is familiar knowledge that such bodies of mercantile law as those relating to bankruptcy and negotiable instruments for a long time pertained exclusively to merchants; indeed, a separate organisation was set up to supervise the affairs of insolvent debtors who were not merchants and therefore outside of the law of bankruptcy. It was only as late as 1690 that the law considered the possibility of a non-merchant being a party to a bill of exchange.3

MERCHANTS AND FINANCE

Although the middle ages were so predominantly agricultural, it is still possible and indeed very necessary to trace in them the beginnings of commerce. In English history two commodities are of particular significance, wool and wine. Wool-growing was the great source of England’s position in international politics during the middle ages. The wool which was grown in England was exported to Flanders, and there in the great Flemish fairs it was distributed throughout Europe. England’s monopoly of wool was so effective that the Crown could afford to leavy heavy taxes upon its export, and upon occasion could bring powerful pressure to bear on foreign nations by diverting the wool trade from one port to another, or even by suspending it altogether. Financially, the wool trade was conducted on a capitalistic basis. In its early days, the leaders of the industry were the Cistercian monks whose mode of life was to build their abbeys in remote places among the hills and occupy themselves with sheep farming. As for the smaller growers of wool, it seems that arrangements were made to buy up their crops in advance, the sale being effected through the assistance of foreign capital. It is significant that credit took the form principally of advanced payments to the growers for future delivery.4 Middlemen were a prominent feature of the trade and behind them stood great foreign capitalists. Edition: current; Page: [67] The same was true of the important import trade in wine. It is obvious that we have here complicated relationships involving very important interests, and we may be certain that the result must have been the development of a good deal of commercial law. It is typical of the middle ages, however, that this law should be not the law of the land but the law of a particular class of people, developed through their custom and enforced through their own organisation. As for the capitalists whom we have mentioned, their place becomes increasingly important through the middle ages. In England a large part was played by the Jews until they were expelled by Edward I. Their place was then taken by various groups of bankers from the cities of northern Italy—the financial centre of London is still called Lombard Street. A considerable place too was occupied by certain religious orders whose international organisation was a convenient machinery ready-made for large-scale banking.1 Their considerable wealth also enabled them at one time to undertake capitalistic operations (although by the close of the middle ages many monasteries were in financial difficulties as a result of heavy royal and papal taxation). Indeed, this tendency of large religious organisations being deeply involved in finance persisted into modern times; in more than one country the principal cause for the expulsion of the Jesuits in the eighteenth and nineteenth centuries was a fear of their financial activities.

As for manufacturers, development was at first most rapid in Flanders where English wool was made up on a large scale. It was to Edward III that credit is largely due for the establishment of the textile industry in England. His Queen was Flemish, and it may be her connection with Flanders which led him to invite some Flemish weavers to settle in England.2 Nevertheless, the English textile industry was still purely domestic, that is to say, carried on in the home of the worker, and not in a factory.

THE INDUSTRIAL REVOLUTION

The transition from this state of things to conditions which are familiar to-day was effected principally in the eighteenth century. Wool-growing had increased enormously and was conducted on a very large scale. This became possible through the great enclosure movements of the sixteenth and eighteenth centuries whereby a great deal of common land, together with land which once had been arable, was turned over to sheep farming. Besides this great change from crop-raising to sheep-rearing (which was the cause incidentally of a great deal of unemployment and agrarian unrest), the textile industry also underwent a great change. The already existing tendency for a number of textile workers to become dependent upon one employer was immensely increased by Edition: current; Page: [68] the introduction of machinery, and here we reach the greatest single cause of the industrial revolution. By means of machinery more work could be done at less expense and with less labour. Soon it became clear that the price also was reduced, and the great movement began whereby trade gathered an ever-increasing momentum. The more there was produced the more the demand increased, and in the end the manufacturers were able to some extent to set the pace of industrial development. The introduction of water power, and very soon afterwards of steam power, gave England a tremendous advantage, for ample supplies of coal were easily accessible. Consequently the industrial revolution pursued a much more rapid course in England than in the rest of Europe.

LEGAL CONSEQUENCES

The task which faced the law was to meet these new requirements. Land was no longer to be its principal concern; other forms of wealth were demanding protection. As the growth of machinery proceeded, the cost of equipping a factory became considerable and usually exceeded the resources of a single manufacturer. Various forms of co-operative effort had been inherited from the middle ages which had long been familiar, at least on the continent, where there was a developed law of partnership in several varieties. Such forms of joint enterprise in seventeenth-century England were usually employed in colonial expansion or distant foreign trade. The law had now to consider some means of placing these advantages within the reach of smaller men who did not require the elaborate organisation of such bodies as the East India Company, or the Bank of England. It was also a growing necessity that banking should be developed, and out of the practice of the London goldsmiths who would receive deposits and issue against them interest-bearing notes,1 there arose, first of all, the Bank of England (1691), and soon a large number of private banks in different parts of the country. The law had, therefore, to consider all the complicated relationships which were being created through the machinery of credit and joint enterprise. It is to the eighteenth century, therefore, that we must look for the rise of most of the law which is of a distinctly modern character, that is to say, of personal property in general (and especially of stock, shares and the like), of companies and their stock, partnerships, of negotiable instruments, contract, bankruptcy, and master and servant. In effecting these developments the eighteenth century achieved the transition from mediaeval to modern times.

Politics had its part in the history of this development. The fall of James II had been due, in some measure at least, to the fact that the City of London and the financial interests thoroughly distrusted his policy. Although his opponents were, of course, drawn largely from Edition: current; Page: [69] the nobility, nevertheless City interests played a considerable part. One of the most significant results of the Revolution of 1689 was the foundation of the Bank of England, which was designed primarily to finance the French War, the founders lending a considerable sum of money to the government and using this government debt as part of their capital. In consequence the bank was closely connected with the Revolution settlement; it was generally felt through the country that any restoration of the Stuarts would imperil the bank, and as the bank’s activities grew wider the country was less and less inclined to take this risk. The Whig party had, therefore, a marked commercial character, while the Tories were still apt to be representative of the landed interest.

The legal consequences of the industrial revolution were effected, partly through legislation, but more largely through the development of case law, and a little group of judges who were far-sighted enough to divine the direction in which events were moving were able quietly and without commotion to perform the great work of taking over the existing mercantile law and custom, and incorporating it into the law of the land. Of this we shall speak more in treating of the history of the law merchant.

One other great result of the industrial revolution has been to produce a new internationalism. Internal commerce in many different nations was to develop along parallel lines, and the basis of the new commercial law was in every case to be the old custom of merchants, and one of the features of this custom had been its growing international character. There was, therefore, a tendency for commercial law in different countries to proceed broadly upon parallel lines. Local diversities there were inevitably; they had been even more serious in the middle ages. But in spite of this some general features remained constant. At the same time international trade was taking a much greater place. More and more commodities passed from country to country and an increasing number of merchants were engaged in foreign business. This also emphasised the tendency for commercial problems to be considered from an international standpoint. The movement is one of the most striking features of our own day; international trade and finance are having their effect upon commercial law, and the time seems not far distant when commercial law will regain its mediaeval aspect of internationalism. This progressive feature of our eighteenth-century law is admirably shown in the life of Lord Mansfield,1 who tried to treat some of the ancient portions of the common law in the same liberal spirit as the newer commercial law which he was so instrumental in developing.

His contemporary, Sir William Blackstone,2 although an admirer of Mansfield, and at times a critic of the law as it then existed, was not a reformer by temperament, and his Commentaries (1776) then, as now, leave the impression of almost indiscriminate praise for the great bulk Edition: current; Page: [70] of the old law which the courts had been accustomed to administer. The law of real property, notably, was undergoing immense elaboration with results which were by no means satisfactory. If the landed interests were to retain their dominant place in national affairs, then agriculture would have to compete with the newer forms of commercialism. Great improvements were made during the eighteenth century in scientific farming, and agriculture made rapid strides as a source of wealth. The effective output, both in crops and herds, was increased and improved enormously, until it became clear that agriculture afforded opportunities for commercial enterprise. This development, however, could only be achieved by considerable capital outlay upon improvement, and was seriously hampered by the law of real property. Land could not take its place in a commercial scheme of things as long as it was so difficult to deal with it. The seventeenth- and eighteenth-century lawyers had developed elaborate methods of placing land beyond the control of the tenant in possession, and when they tried to retrace their steps in an endeavour to give the great landlord powers to charge and to sell, their remedies were equally cumbersome, uncertain and expensive. It is not until the close of the eighteenth century that any substantial progress was made towards providing a simpler law of land, and to this day the process is still going on.

At the same time there was a movement, not fully effective until the early years of the nineteenth century, for radically reforming the whole of the procedural side of law.

MONTESQUIEU

The most tremendous event in the eighteenth century was the French Revolution with which it closed, and a few words must be said here of its implications in legal and political science. These can best be illustrated by considering two great thinkers, Montesquieu who just preceded it, and Burke who was contemporary with it. In 1748 Montesquieu published his Esprit des Lois, which, like his earlier essays, was an attempt to give a political interpretation to history. The sources he used were Roman and more particularly English history. He classified the different forms of government and assigned to each its characteristic principle: thus despotism depends upon fear, monarchy upon honour, aristocracy upon moderation, and democracy upon virtue (in the Roman sense of the word). The corruption and fall of a government whereby it changes into another form he attributes to the corruption of its fundamental principle; but as long as the principle remains fairly pure he sees little to choose between the different possible forms. The really vicious situation is when institutions which are fitted for one principle of government are still forced to work although that principle has been replaced by another. Montesquieu tells us little about sovereignty, although he has a good deal to say about liberty. He regards liberty as best assured Edition: current; Page: [71] by the supremacy of law rather than of men, and to achieve this the best way, in his opinion, was the separation of powers. This part of his work is greatly indebted to John Locke. The aspect which he develops at most length is not the mere administrative convenience of specialising the functions of government, but rather the constitutional safeguards which result when each power operates as a check upon the others. It is this system of “checks and balances” which Montesquieu regards as particularly important, and as the secret of constitutional monarchy in England. It was he who had the romantic notion that English constitutionalism was directly derived from the ancient Germans of Tacitus.1Ce beau système a été trouvé dans les bois.” He even went so far as to develop a theory of the influence of geography upon politics. He is essentially modern in the emphasis which he places upon legislation, but it is his theory of the separation of powers and his insistence upon its value as affording constitutional safeguards which are most important for our purposes, for he was read by influential men in America and has had a marked influence upon constitutional development in that country.

EDMUND BURKE

Into the causes and character of the French Revolution we cannot enter; but some of its results upon English political thought may well be mentioned. The greatest political thinker at this time in England was Edmund Burke, and anyone who wishes to have a summary of English political wisdom by an experienced statesman who could adopt a philosophical attitude without losing touch with practical events must read the writings and speeches of Burke. They are likely to remain for a long time an authoritative statement of the results which had been achieved by parliamentary government in the seventeenth and eighteenth centuries. At the present day his words are constantly upon the lips of the best English statesmen. His thought is characterised by its intimate contact with practical politics; rarely does he allow a theory to divert his attention from the practical problems of everyday government. A noteworthy portion of his work is in answer to Rousseau and to the theories of the rights of man. With a natural tendency to admire aristocracy, he felt that an extreme democracy as suggested by some theorists contained great dangers, and insisted that it was hazardous to abandon those sentiments for aristocracy which in his day seemed natural to mankind. He observes that a democracy is not affected by the fear which besets a monarch; when shameless acts are done the moral responsibility vanishes when spread among numerous persons, while the alleged liberty of a democracy is more often a delusion. The horrors with which the Revolution began made an increasing impression upon Burke as upon his countrymen, and had the practical effect of delaying reform for over a generation. Typical measures of this period were the Treasonable Edition: current; Page: [72] Practices Act1 and the Seditious Meetings Act2 of 1795, the suspension of the Habeas Corpus Act on several occasions, and the imposition of heavy stamp duties with the object of checking the circulation of cheap newspapers. Numerous State trials took place.3 Even purely private law fell under the influence of the extreme conservative reaction of which Lord Ellenborough was the personification in the King’s Bench (1802-1818) and Lord Eldon in Chancery (1801-1806, 1807-1827). To this result Burke largely contributed, nor must he be blamed overmuch for his caution at a moment when the wildest theories were being proclaimed in all seriousness. His speeches on America4 are the best expression of his philosophy, for they were made before the French Revolution came to strike terror throughout the rest of Europe. There in particular the political realism of Burke is apparent; he almost alone of British statesmen at the moment was prepared to face the facts, and having done so, to advocate a frank acknowledgment of the situation as it actually existed. He poured ridicule upon the government for their weak attempts to compel recognition of a principle which had no relation to the existing state of affairs; he was the embodiment of the spirit of compromise, and appreciated fully the fact that situations slowly change, and that the change must be recognised frankly. He was prepared to state that the American colonies had entered upon the stage of adult political life, and to counsel the government to treat them accordingly. Perhaps the most interesting passages in his speeches on America are those where he shows that the demands of the colonists were the very same which Englishmen at home had made in a more heroic age, and where he stresses the deep respect for legality which characterised English political development, urging that this very spirit lay at the root of the American case.

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CHAPTER 9: THE NINETEENTH CENTURY: LIBERALISM AND REFORM

SUMMARY page
The Need for Reform 73
Jeremy Bentham 73
Concluding Remarks 75

At length, the end of the Napoleonic war brought some relief from the political tension, and a wave of constitutional and legal reform swept away many ancient institutions which had long survived their usefulness.

THE NEED FOR REFORM

The state of the law at the beginning of the nineteenth century has been thus described by an eminent legal historian:

“Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, expensive, uncertain, and remote. To the rich it was a costly lottery: to the poor a denial of right, or certain ruin. The class who profited most by its dark mysteries were the lawyers themselves. A suitor might be reduced to beggary or madness, but his advisers revelled in the chicane and artifice of a lifelong suit and grew rich. Out of a multiplicity of forms and processes arose numberless fees and well-paid offices. Many subordinate functionaries, holding sinecure or superfluous appointments, enjoyed greater emoluments than the judges of the court; and upon the luckless suitors, again, fell the charge of these egregious establishments. If complaints were made, they were repelled as the promptings of ignorance: if amendments of the law were proposed, they were resisted as innovations. To question the perfection of English jurisprudence was to doubt the wisdom of our ancestors . . . a political heresy which could expect no toleration.”1

The romantic fancy which led Blackstone to tolerate such a system, comparing it to a picturesque old Gothic castle,2 could hardly survive the shocks of war, and a very different point of view ushered in the great reform movement.

JEREMY BENTHAM

The prophet of the new era was Jeremy Bentham3 (1748-1832). At Oxford, Bentham had heard Blackstone lecture, and deemed his matter unsound: as a young law student he had listened with admiration to the judgments of Lord Mansfield. The publication of Blackstone’s Commentaries (1776) stirred him to fierce criticism expressed in his Fragment on Government (1776), and he abandoned the professional study of Edition: current; Page: [74] law in order to devote himself to the basic principles upon which law rests. The Principles of Morals and Legislation (1789) proclaimed that there should be constant, radical legislation as the mainspring of law, and it should be directed to the end of securing the greatest happiness of the greatest number. His faith in acts of Parliament was perhaps a little overstated: the century since his death has revealed some of the limitations in written constitutions and legislative enactments, but nevertheless, the main position still stands—rules and institutions must henceforth submit to the test of utility and be judged by their fruits, and where reform is necessary, it must be effected in most instances by deliberate, planned legislation. Besides providing a theoretical basis for criticising the law and the constitution, he also entered into detailed and vigorous discussion of practical details, as in The Rationale of Judicial Evidence. He was a firm believer in codes and ever ready to offer advice. In 1811 he offered to codify the law of the United States. The offer was not accepted, and even Pennsylvania, which for a moment seemed tempted by it, finally yielded to the professional interests of the lawyers. Nevertheless Bentham’s influence has been enormous, and has become much more diffused than his writings. Many people act on his principles who have never read a word that he wrote—and a great deal of what he wrote is barely readable, so tortuous did his style become. It has well been said that

“his doctrines have become so far part of the common thought of the time that there is hardly an educated man who does not accept as too clear for argument truths which were invisible till Bentham pointed them out.”1

Even some of the strange new words he invented have become familiar, e.g. “international”, “utilitarian” and “codification”.

From Bentham’s day to our own a long line of measures has approached nearer and nearer to his idea of “utility”, reducing law from the position of semi-religious mysticism to that of a practical branch of the business of government with expediency as its guiding principle. At the head of this movement comes the great Reform Act of 1832, which brought Parliament into direct contact with public opinion—and thereby subjected law, too, to the pressure of the same force. Three years later the Municipal Corporations Act, 1835, abolished those curious and venerable monuments of the middle ages and substituted a uniform pattern of town government. It would be hard to imagine a more spectacular break with the past than these two statutes. They were accompanied by scores of others which abolished the accumulated survivals of centuries. On the procedural side came the Uniformity of Process Act, 1832, and the Civil Procedure Act of 1833 which buried a great deal of subtle learning and abolished some hoary antiquities, such as wager of law. A group of statutes from 1827 to 1837 made numerous changes in the criminal law and greatly reduced the number of capital Edition: current; Page: [75] offences. This in fact was the one subject on which the eighteenth century had legislated incessantly and vigorously. Statutory interference with the penal law was therefore no novelty; the real change was in the spirit. Sir Rober Peel and Lord Brougham were the promoters of these reforms for which Sir Samuel Romilly and Sir James Mackintosh had long struggled in the face of bitter opposition, and Peel in particular made the capital contribution of setting up a professional police force,1 thus rendering the criminal law less savage but more certain in its operation. In the law of property no less far-reaching reforms were made; one single year (1833) saw the Fines and Recoveries Act, the Administration of Estates Act and the Inheritance Act.2

CONCLUDING REMARKS

The end of this chapter therefore brings us from the old world to the new, from the ruins of the Roman Empire to a crisis in another empire thirteen centuries later. We have seen the gradual formation of the English State under the Anglo-Saxon kings, which later was transformed by the Norman genius and furnished with the first necessity of government—a financial administration. Developing within that administration we have seen the germs in the reign of Henry II of the common law, while under his sons we begin to find the claim that law and administration had now come to the parting of the ways, and the text of the Great Charter lays down the principle of the supremacy of law. Besides this internal limitation upon a powerful monarchy, we also see the Church using considerable influence in politics, and its rôle expressed in the terms of a general formula that although the State, like the Church, may enjoy divine sanction (or at least divine tolerance), nevertheless religion is superior to politics. It is clearly asserted that there are things which kings cannot do, and in the middle ages there was a papacy powerful enough in many cases to punish monarchs who transgressed. We have seen, too, the growing weakness of law in the fifteenth century and the rise in the sixteenth of administrative bodies using semi-legal forms, which alone were adequate to meet the crisis under the Yorkists and early Tudors. When this movement had gone too far, the Stuart dynasty was to suffer for its failure to adapt itself to new conditions—although it is typical of English development that the really innovating party found its main support in history, and even in Edition: current; Page: [76] antiquarianism. With the Commonwealth there came a period unique in English history and its failure was as conspicuous. The Revolution completed the work of the Rebellion and expressed its results in a form more nearly legitimate. The strange, but fascinating, theories of Hobbes gave way to the reasonableness of Locke, and when a century later the French Revolution issued a challenge to all established governments, it was Burke who found an answer which served England and America equally well. That answer was an appeal to history, to experience, and to the traditional English habit of compromise and cautious reform—to what Montesquieu might have called the spirit of the common law.

The French Revolution, the long and weary war, and the fearful distress that followed the peace, came near to bringing disaster. Contemporaries felt themselves on the brink of revolution and civil war, and if this last catastrophe was averted it may perhaps have been because the party of privilege and conservatism was so clearly founded on sentiment rather than on political theory. There was no clash of philosophies as there had been in the seventeenth century. Even Benthamism, in spite of the formidable array of logic, ethics and jurisprudence which decorated it, was at bottom as sound common sense as it was dubious philosophy. Benthamism triumphed in spite of its technical apparatus and became merged in the practical good sense of the commercial middle class, avoiding the mysticism of the State as well as the mysticism of the rights of man, just as at the present moment it seems that the political thought which is derived from the common law will again stand aside from the corresponding mysticisms of our own day.

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PART 2: THE COURTS AND THE PROFESSION

Edition: current; Page: [78]

SUMMARY

  • The Courts and the Profession - - - page 79
  • chapter 1. The Communal Courts - - - - - 83
  • chapter 2. Seignorial Jurisdiction - - - - - 95
  • chapter 3. The Crown and Local Courts - - - - 101
  • chapter 4. The Jury - - - - - - - - 106
  • chapter 5. The Origins of the Central Courts - - 139
  • chapter 6. The Elaboration of the Judicial System: 1307-1509 - - - - - - - 157
  • chapter 7. The Tudors and the Common Law Courts - - 170
  • chapter 8. The Rise of the Prerogative Courts - - - 176
  • chapter 9. Prerogative, Equity and Law under the Stuarts 191
  • chapter 10. Parliament and the Privy Council - - - 199
  • chapter 11. The Courts in the Nineteenth Century - - 207
  • chapter 12. The Legal Profession - - - - - 215
  • chapter 13. The Growth of the Judiciary - - - 231
  • chapter 14. Professional Literature - - - - - 252
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THE COURTS AND THE PROFESSION

SUMMARY page
The Different Sorts of Court 79
Royal Jurisdictions 80
The Crown and the Jury 81

We now come to the history of the law courts and the legal profession. Few matters are more obscure than the early history of our courts, especially of the inferior or local jurisdictions.

THE DIFFERENT SORTS OF COURT

Compared with the courts of Westminster the local tribunals of the county and the hundred are centuries more ancient, and have a past stretching back to pre-Conquest days. Into the great questions of the ultimate origin of the county and the hundred courts, which in the opinion of some writers extends back into Teutonic pre-history, it would be impossible to enter without examining a great deal of technical controversy. Questions equally grave and controversial also obscure the history of those jurisdictions which are commonly called feudal—jurisdictions which competed with, and in one or two cases supplanted, the older institutions. Last of all there came the royal power and the erection of a hierarchy of courts acting in the King’s name, and applying the common law, which in the end superseded all the other jurisdictions. We therefore have, roughly speaking, three main types of courts: the oldest is the communal system represented principally by the county and the hundred; next we have the feudal or seignorial tribunals, of which the court leet is the best-known example; while finally we have the royal courts at Westminster gradually overshadowing all the rest. Within each of these classes there exists the utmost variety, and the further back we trace the history of these courts the more difficult it becomes to make a general statement which shall be approximately true about any of them. The Anglo-Saxon age in particular shows us countless examples of local variance, although it is significant that soon after the Norman Conquest faint signs of order begin to appear.

The remarks that follow, therefore, are only very general observations which will have to be taken subject to a good deal of modification if they are to be fitted into any particular case. Very broadly speaking the threefold division which we have indicated comprises three different classes of courts, each with its own separate type of history; but it is an essential part of that history that each type existed side by side with the others, and therefore was constantly influenced by them. The communal courts are characterised by a territorial jurisdiction coinciding Edition: current; Page: [80] with some administrative district within whose limits their authority extends. The seignorial courts are less definitely territorial in their character; there are occasions when their jurisdiction seems rather to depend upon a personal relationship between lord and tenant. This statement, however, is subject to some reservations since a purely personal jurisdiction of a lord over particular men is very apt, during the middle ages, to become gradually transformed into a jurisdiction over the land of those men. A jurisdiction which was originally personal will therefore become in time territorial, and it is characteristic of this process that such a territory often is of extremely irregular outline; indeed, it is quite common to find that there will be small islands of one jurisdiction scattered at some distance away from the main body. The most plausible explanation of this seems to be that these outlying portions were originally the property of a tenant under a personal jurisdiction, and that in the course of time this personal jurisdiction became territorial.1 Still further confusion between the two types is caused by the constant tendency for old communal jurisdictions (especially the smaller ones) to fall under the domination of some great man and to become in the end his private “franchise”.

ROYAL JURISDICTIONS

Both of these classes of courts, however, differ fundamentally from the third class, the royal jurisdiction. Both of the former were in flourishing condition and apparently equal to the requirements of the nation before the Crown began to intervene. One thing at least is very clear, namely, that the royal courts were intruders upon ground which had been occupied for centuries by older jurisdictions, and that the authority of these older jurisdictions was original and in no way derived from the Crown. This undoubted historical fact begins to be obscured by legal theory in the twelfth, and still more in the thirteenth centuries. By that date the royal courts at Westminster were in a period of active expansion and were prepared to make wide claims on their own behalf and on that of the King. Already, between 1109 and 1111, Henry I had spoken of “my counties and hundreds”,2 and a century and a half later Bracton lays down a general principle that strictly speaking the King is the proper judge for all temporal causes, and that it is only the great mass of business that has compelled him to delegate judicial power to a number of judges, sheriffs, bailiffs and ministers.3 About the year 1256, therefore, a royal justice like Bracton is already considering the Crown as the sole fountain of justice. A generation later another royal official, whom we only know under the disguise of “Fleta”, presses this doctrine to its extreme limit.4 In an extraordinary chapter Fleta Edition: current; Page: [81] discusses all the courts of the land, and introduces each one of them with the significant formula that “the King has his court. . . .” Although Fleta may have known the historical falseness of this, nevertheless he insists that the King now has his court not only in Parliament, the King’s Bench, the Common Pleas and the Exchequer, but also in the county, in boroughs, in hundreds, and in manors, even although he has no judge there, the decisions being made by suitors. With Fleta, therefore (about the year 1290), we come to the complete dogma that all judicial power is derived from the Crown.

Clearly it is only the fact of the Norman Conquest, seconded by the organisation of the Norman kings, that enabled England to be so centralised as this. In the course of two hundred years not only had the central courts at Westminster been erected and furnished with royal law and procedure where previously there had been little or none, but in addition the idea of royal supremacy and of the centralisation of justice had so firmly taken root that it was possible to assert that all judicial power, whether it be in royal courts, seignorial courts or the ancient communal courts, was exercised by delegation from the Crown. From this point onwards the character of the local courts was gradually being transformed in order to make them fit in with this theory. In the end, they were either to be abolished or virtually superseded by new institutions which would be in fact as well as in theory created by the Crown.

THE CROWN AND THE JURY

The ultimate supremacy of the central courts of the Crown was only achieved slowly. There was little direct attack, save perhaps a few words in the Statute of Gloucester (1278), c. 8, and the important rule in the Statute of Marlborough (1267), c. 20;1 for the most part, the change was effected by peaceful penetration and skilful competition in offering better remedies, notably, trial by jury. The points of contact between central and local courts thus become particularly significant. On the one hand, there is the Crown’s determined endeavour to tame the sheriff; on the other, there is the Crown’s use of the jury. It had long been the practice for royal emissaries to summon juries when the central government wished to make contact with the men of the county, hundred or vill. When, in later times, the jury was given the new function of trying issues of fact reached in litigation, the Crown claimed to have the monopoly of what had now become a desirable procedure, and thereby achieved an overwhelming superiority over those jurisdictions whose powers did not extend that far.

Such, then, is the general trend of institutional history in the course of a thousand years. It now remains to consider in a little more detail Edition: current; Page: [82] the rise and fall of local institutions, and their gradual subjection to the central authority. First of all we shall treat of the communal courts; secondly, of seignorial jurisdiction and its relations with them; then of the Crown’s contact with the local courts, and of the jury which grew up at that point of contact; and finally, of the royal courts at Westminster which were destined to overshadow and destroy both the seignorial and communal courts.

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CHAPTER 1: THE COMMUNAL COURTS

SUMMARY page
The Vill or Township 83
The Vill in Agriculture 84
The Vill and Local Government 85
The Vill and Criminal Law 86
The Early Hundred 87
The Later Hundred 89
The Sheriff’s Tourn: Courts Leet 89
The County Court 90
The Suitors in the County Court 91
The Sheriff as Judge: Viscontial Writs 92
The Decline of the County 93

THE VILL OR TOWNSHIP

Beginning at the very bottom of the scale, the lowest institution we find is the vill or township.1 It is moreover the most complicated and obscure. Its history was possibly different in different parts of the country and is extremely difficult to disentangle from that of certain other institutions—the ecclesiastical unit of the parish, the social unit of the village, and the economic unit of the manor, which are all the subject of learned controversy. It would seem as if the typical vill (if one can use the term of an institution which varied so greatly) would have looked something like this. There will be a little group of houses, sometimes in a cluster, and sometimes ranged along an ancient road. Nearby there will be the parish church, and in many cases there will be the hall or mansion of the lord of the manor, if it so happens that the vill coincides with a manor, which may or may not be the case; sometimes a manor consists of several vills; on the other hand, a vill may contain several manors. Surrounding it there will be two, or more usually three, large fields. Each of these fields will be divided into a large number of long, narrow strips of about half an acre each, and every household in the village will own a greater or less number of these strips scattered irregularly through the fields. This system of scattered strips is very ancient and lasted long after the middle ages. It has been suggested that the method was imported by the Anglo-Saxons and was not native to England. The prehistoric field seems to have been a small Edition: current; Page: [84] irregular plot; the Celtic field which replaced it in England was apt to be oblong owing to the necessities of ploughing. It seems also to have been a peculiarity of Celtic agriculture to prefer hills or elevated ground, while the Saxons introduced valley settlements. The Saxons, moreover, were accustomed to use the large team of eight1 oxen to draw their ploughs; this, of course, gave more power, but made turning more cumbersome. Consequently it became necessary to plough a much longer furrow in order to secure the advantage of the larger team, and hence the long narrow strips—but why they were scattered, has long been debated. It was never easy to believe that an egalitarian dogma was applied regardless of efficiency and convenience; more probably, those who co-operated in each day’s ploughing took a share each, as the work proceeded from day to day.2 It is not uncommon for fields in England at the present day still to bear traces of these arrangements; on the hillside Celtic divisions may still be found represented by the banks caused by constantly ploughing the same plot, while lower in the valleys the long, narrow strips of the mediaeval field may be discerned. Photographs from an aeroplane are particularly useful in revealing these features.3

THE VILL IN AGRICULTURE

The one bond which holds the vill together is a system of communal agriculture. The machinery necessary was expensive, for the plough of eight oxen was often beyond the means of any individual villager, and so we find that the vill co-operated in the performance of a good many of the more difficult operations of farming. Besides this, after harvest the fields were thrown open and all the villagers turned their cattle into them, as well as on to the field which for that year was remaining fallow (for the general system was to have two or three fields one of which was left fallow each year).

From what has just been said it will be obvious that there were many features of the agricultural life of the vill which would need regulation, and in spite of Maitland’s doubts it seems now fairly clear that there was a moot in the vill which ordered its economic life, made bylaws and enforced their observance. It is tempting to regard the numerous “halimotes” of which we have evidence as being survivals of the earlier vill moot. To the eyes of some historians the co-operative element in the village community appears so strong that they describe it as an agrarian communism; but at this point we again touch upon a difficult and controversial subject upon which we can here say no more Edition: current; Page: [85] than that it is almost as difficult to prove a true agrarian communism as it is to find the modern notion of individual private property in land. There has been a great deal of conjecture as to the probable character of the primitive village community, and much of it has removed the question from the realm of history into that of speculative pre-history.1

Whatever its origin, the mediaeval village community was dissolved in the sixteenth and eighteenth centuries as a result of the great enclosure movements promoted by landowners with two distinct objects—first, to abandon the old system of strips,2 re-survey the land and allot to each holder a compact area instead of his scattered strips, and also to enclose portions of the common land and restrict them to private use, generally of the lord of the manor.

THE VILL AND LOCAL GOVERNMENT

Besides this powerful economic bond which produced a unity from within, as time went on there came constant pressure from without which tended to the same result. Especially after the Conquest and down to the middle of the thirteenth century, the vill was being constantly used by the central authorities as the lowest unit of local government. As the Crown interfered more and more with local questions, so we find more and more reference in public documents to the vill, first one and then another duty being thrust upon it. The middle ages were fond of the very rough-and-ready, but effective, method of imposing a duty upon a group of people and holding them jointly and severally bound to perform it; any arrangement for apportioning the burden among the individual members of the group was their private concern, the Crown refusing to take any notice or to give any assistance to the process. At the close of the twelfth century the Crusades caused a good deal of taxation. The method by which it was assessed was simple; each county was assigned a quota proportionate to its estimated wealth (this estimate is the technical meaning of the word taxatio); the county then divided this quota in a similar manner among the hundreds and the vills, and so a vill would be responsible for raising a particular sum of money—no doubt by negotiation among its members, although often under the eye of royal taxers.

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THE VILL AND CRIMINAL LAW

The vill is most remarkable, however, for its place in the system of police and criminal procedure.

“It ought to attend the court held by the Justices in Eyre. It ought to attend the sheriff’s turn. It ought to attend the hundred and county courts whenever it has any crime to present. It must come at the coroner’s call to make inquest when a dead man’s body is found. It is bound to see that all its members who ought to be in frankpledge are in frankpledge. In some parts of the country the township is itself a frankpledge, a tithing . . . and in this case it is responsible for the production of any of its members who is accused of crime. Apart from this, it was bound to arrest malefactors; at all events if a person was slain within its boundaries during the daytime and the slayer was not arrested, it was liable to an amercement. . . . Again, from of old it was the duty of the township to raise the hue and cry and follow the trail of stolen cattle. . . . Moreover, it was the common practice to commit prisoners to the charge of the villata, and then if the prisoners escaped the villata was amerced. So if a malefactor took sanctuary, the neighbouring townships had to watch the church and prevent his escape. Most of these liabilities can be traced back into the reign of Henry II.”1

The thirteenth-century statutes systematised the police powers of the vill; watchmen were to be kept throughout the night and the assize of arms enforced; in 1252 constables were to be appointed, and in 1253 vills were ordered to provide at their own cost the necessary weapons, while, as we have already said, the Statute of Winchester in 1285 consolidated these previous enactments for the rest of the middle ages. The vill was further under heavy obligations in the maintenance of roads and bridges and the cleansing and repairing of river-banks. From all this it will be clear that the vill could hardly escape being many times amerced, and it seems that the inhabitants were jointly and severally liable to find the money.

Finally, the vill had very important duties in the system of presentments. When a crime occurred within the vill it was the duty of the reeve and the four best men to report it to the hundred court and if possible to produce the guilty party, while on numerous occasions the King’s Justices would summon the vill where a crime was committed (together with four or more neighbouring vills, all appearing by their reeve and four best men) to pass upon the guilt or innocence of a prisoner accused of crime.

In the later middle ages the vill ceased to be of general legal importance. From the administrative point of view it was gradually replaced by the parish with which in fact it frequently coincided, and ever since Elizabeth’s poor law the parish has tended to become a unit of civil taxation.2 Rules of pleading, however, continued to insist upon places being assigned to a particular vill, and so the vill for centuries Edition: current; Page: [87] survived as a troublesome anachronism. To make matters worse, the boundaries of vills were uncertain, and a good many places were definitely not in any vill at all.1 At length it was enacted that the specification of the county should be enough.2

THE EARLY HUNDRED

The term “hundred” occurs in various parts of Europe as an administrative unit, and great controversy has arisen as to its ultimate origin. Tacitus tells us of Germans organised by groups of hundreds; five centuries later the Frankish kings legislated on the “hundred” as a criminal jurisdiction (595); and the English hundred appears nearly four centuries later still (between 946 and 961). Tempting as it is to see some connection between these phenomena, the hazardous nature of such a speculation is emphasised by modern historians. One recent theory3 would stress the efforts made in the tenth century to enforce order by means of voluntary associations, such as London had set up.4 The members undertook police duties, and the Crown gave them a share in the property of convicted criminals, and powers to find out informally whether suspects were guilty. From this gild it was a short step to the ordinance ascribed to Edgar on the holding of the hundred.5 The principal change was to substitute regular judicial procedure and trial by ordeal for the gild’s informal inquiry. While that theory takes note of the documents, as they have come down to us, it is difficult to resist the suggestion that the hundred must be a good deal older than the texts mentioned. Sometimes a connection can be traced between a hundred and the tax assessment of 100 hides, and it may be that our texts show not the origin, but the re-modelling of an already ancient institution.

King Edgar commanded that the hundred should meet every four weeks; thieves are to be pursued and judgment executed upon them; contempt of the hundred’s decisions is punished by a fine and on the fourth offence by outlawry; in following the trail of stolen cattle one hundred may call upon another to assist; the hundred is ordered to establish fixed terms at which parties are to appear; fines were payable to it by those who disobeyed its commands, and half the property of convicted thieves also went to the hundred. The laws of Cnut (made between 1027 and 1034)6 show even more clearly how important the Edition: current; Page: [88] hundred was in Anglo-Saxon England. No distress was to be levied until the remedies available in the hundred had been exhausted: every freeman over twelve years of age was to be in a hundred; no one was to appeal to the King unless he was unable to get justice in the hundred; and until the famous ordinance1 of William the Conqueror, the bishop used the hundred to transact ecclesiastical business.

When we get to the Conquest the hundred is treated by the Norman administrators as the most convenient of the smaller units of government. The Dialogue of the Exchequer tells us2 of the rule long observed in that court as a result of the numerous assassinations of Normans, presumably by Englishmen. In order to check this it was ordained that every hundred wherein a Norman was found slain by an unknown hand should be liable to a very heavy murder fine. As time went on the hundred was allowed to relieve itself of the fine by proving that the dead man was not a Norman but an Englishman, but in the end the races had become so mingled that it was impossible to maintain this procedure of “presentment of Englishry” and the murder fine was abolished by Edward III. The principle of making the hundred liable in respect of undetected crimes was not abandoned, however, and the Statute of Winchester (1285) lays down a general rule that the whole of the hundred where a robbery was done shall be answerable for it unless they can produce the offender.3 For the next five hundred years Parliament constantly increased the civil liability of the hundred for crimes committed within its borders, especially by rioters, until in 1827 a long list of such statutes was repealed,4 and the hundred’s liability was restricted to damage done by rioters;5 later still the burden was placed on the county or borough rate-payers by the Riot (Damages) Act, 1886.

All this will serve to illustrate the varied aspects of mediaeval institutions, for besides this police and administrative side of the hundred, its judicial powers continued, although their decline came rather earlier. By the Assize of Clarendon (1166)6 it had been ordained that in every county and in every hundred the twelve most lawful men of each hundred and the four most lawful men of each vill should be sworn to present any man who was suspected of serious crime either to the King’s Justice or to the sheriff. If the hundred or the vill had been successful in Edition: current; Page: [89] capturing a suspect, they were to deliver him over, accompanied by two lawful men “to bear the record of the county or the hundred”—in other words to state verbally the circumstances under which the prisoner was captured. In 1234 a royal ordinance1 declared that hundred courts had been held too frequently and that rich and poor had been equally oppressed thereby; it was therefore ordained that they should meet every three weeks instead of once a fortnight as heretofore—it may be observed in passing that this is not the only complaint we hear during the middle ages of too many courts and too much justice; earlier still Henry II admitted that the country had suffered grievously “by reason of the multitude of justices, for they were eighteen in number”, reducing their number to five (1178).2

THE LATER HUNDRED

The hundred court (or, as it was more usually called, “the hundred” simply) was under the presidency of an official called the hundred man or the reeve, but his importance rapidly declined, for the hundred lost the independence which it seems to have had originally. On the one hand, many hundreds fell into the power of the sheriffs, and when the sheriffs in turn have been subjected to the Crown, those hundreds will become the king’s hundreds. In the Norman period sheriffs frequently purchased their counties, and sublet the hundreds—a sure way of encouraging extortion. On the other hand, many hundreds fell into the hands of neighbouring landowners either by royal grants of varying extent, by purchase from the sheriffs, or by usurpation. By the reign of Edward I more than half were in private hands.3 As in all the communal courts, the judgment proceeded from the whole body of people who constituted the court, and in the case of the hundred these people (“suitors” as they were called) seem to have been usually quite small landowners, and it soon became the practice for the obligation of attending the court to be restricted to the owners of particular pieces of land—another peculiarity which is common in the middle ages.

THE SHERIFF’S TOURN: COURTS LEET

We have already mentioned the success of the sheriff in securing control over the hundred by appointing one of his underlings as bailiff of it; his influence was further increased by means of the “sheriff’s tourn”. Twice a year every hundred held an especially full meeting which was attended by the sheriff or his deputy, at which there came to meet him the reeve and the four best men of each vill in the hundred to undergo a searching examination at his hands. They had to lay Edition: current; Page: [90] before him their suspicions upon the members of their community; those suspected of grave matters were arrested by the sheriff and held for the King’s Justice, while less serious offenders were amerced by the sheriff. For the purposes of these specially important meetings twelve freeholders were appointed to revise the presentments by the vills.1 Upon the occasion of the sheriff’s tourn a thorough investigation was always made of the condition of the frankpledges, of which we shall speak later. By the close of the middle ages the hundred was reduced to insignificance, and the tourn lost its powers to the Justices of the Peace.2 Those hundreds which fell into private hands lasted longer, for their profits were sufficient to interest their owners, especially those who had the valued privilege of holding “courts leet” to replace the sheriff’s tourn. We shall return to the leet in the following chapter when dealing with seignorial jurisdictions.

THE COUNTY COURT

We now come to the county court, or “county” as it was more simply called, for it must be remembered that in the early Norman period administration and adjudication were still not separated, and there was hardly need for the word “court”—even when the word does occur it does not necessarily bear the modern meaning of an organ of justice. The shire is the most ancient of English institutions. Many of the individual counties are directly descended from the ancient Anglo-Saxon kingdoms of the age when the land was divided into numerous petty realms. In such cases as this the shire moot was the direct representative of the national assembly of a once independent kingdom, and for a time was presided over by an alderman, who was sometimes a member of the ancient royal family. It seems that some other counties, however, are of later origin and were deliberately erected as units of provincial government in imitation of the place which the ancient county now occupied in a united England. The history of the county falls into two periods; in the first the Crown is endeavouring to secure complete control over the county organisation; in the second, that control having been acquired, we see the steady decline of the county in practical importance.3 The original jurisdiction of the county was once limitless both in kind and in degree. The county was the greater and more solemn body, but it was not “superior” to the hundred in the modern sense of the word: decisions of the hundred, for example, were not subject to review in the county, and the county, like the hundred, was a court of first instance. In Anglo-Saxon times the shire-moot was an impressive assembly of all the greatest people of the shire who met in order to transact all the functions of government. There are surviving charters which testify to the fact that some of that business was judicial, Edition: current; Page: [91] but both before and after the conquest all sorts of administrative duties were performed in the shire or county, as well as those more distinctly judicial functions which entitle it to be described as a court.1

The county came to exercise two jurisdictions, and the method appropriate to each is well worth study, for it illustrates the difference between ancient courts and modern ones.

THE SUITORS IN THE COUNTY COURT

Taking first the more ancient aspect of the county, we find that its constitution and procedure resembled those of the hundred and other ancient courts both in England and on the continent. According to the classical theory, it was composed not of judges but suitors who sometimes bear the significant name of “Doomsmen”.2 They were not lawyers, nor even officials, but merely lay persons who by custom were bound to attend. In theory the court ought to consist of all the great men of the county, and representatives of the lesser folk from the vills and towns, in a great assembly which almost looks like a county parliament. But attendance at courts (like attendance at parliaments) was a costly and troublesome burden rather than a political or social privilege, and so those who could succeeded in avoiding it. Sometimes they asserted the principle that if they sent a steward or a few villagers their duty was done; stewards certainly became conspicuous in the county court—“they swayed the judgements, and the rest followed like sheep”.3 Sometimes lords enfeoffed a tenant whose service was to consist in doing the suit;4 in 1236 they procured a statute5 allowing all freemen to do suit by attorney. In the end, suit of court was frequently a burden attached to particular pieces of land. The common result of all these devices was to substitute for the great men of the county a body of lesser suitors whose dignity and numbers were alike bound to decline with the passage of the centuries.6 We may associate this withdrawal of the magnates from the county court with the demands which the Crown began to make upon them for attendance at the king’s own Edition: current; Page: [92] court, and it must be remembered that many landowners had property in different counties and that personal suit to all the county courts would be practically impossible.

Over the body of suitors presided the sheriff, but he, too, was not a judge. He spoke for the court and acted as the chairman of the meeting, but decisions were reached by the suitors, the sheriff’s part being merely to announce them. So Hengham explained that if a false judgment was given in the county it is the county and not the sheriff who will be punished, for the suitors gave the judgment,1 which was normally upon matters of procedure, summons default, etc. As we shall see later on, there was as yet no need for a judge or a jury to decide which party had proved his case, for this was ascertained by the purely mechanical means of ordeal, battle or compurgation. It was, however, necessary to decide which of the parties was to have the privilege of undertaking proof by these means, and here the suitors must often have exercised a truly judicial function.

THE SHERIFF AS JUDGE: VISCONTIAL WRITS

To this jurisdiction whereby the county court administered justice, was added another jurisdiction exercised by the sheriff in the county court in virtue of a royal writ addressed to him, beginning with the word iusticies, “do justice upon” the defendant “so that rightly and without delay he render” to the plaintiff, e.g. a debt which he owes. The old view that these writs of justicies were an attempt to revive the county so as to relieve congestion at Westminster is no longer tenable, for it is now known that our earliest registers of writs contain many such writs, and that the more familiar forms returnable at Westminster are a later development. Certain other writs were also “viscontial”, giving the sheriff jurisdiction, although not drawn in the form justicies. The implication seems clearly that down to the middle of the thirteenth century a large part of the nation’s litigation was in the county court.2 In this type of proceeding the sheriff was a judge in the modern sense, and the county court was merely the occasion upon which he exercised his jurisdiction. So complicated a situation could only result in confusion, and in fact it is very difficult to disentangle the two branches; Fleta3 was able to assert the existence of the difference, but after his day the boundaries became obscured (partly as the result of legislation), until the classical doctrine as described by Coke4 makes the suitors judges of the court in almost all cases. Thus was fulfilled the ancient policy of the Edition: current; Page: [93] crown in reducing the judicial importance of the sheriff at every possible opportunity.

THE DECLINE OF THE COUNTY

In early times there seems to have been no limit to the jurisdiction of the county court; civil and criminal cases, pleas common and royal, were alike within its power. The Crown (and apparently the public also) so thoroughly distrusted the sheriffs, however, that constant reductions of their jurisdiction were made. Henry II’s criminal reforms were briefly confirmed by Magna Carta1 which removed pleas of the Crown from the sheriff (and the county). When later on it was found that criminal justice would have to be decentralised, it is significant that the old powers of the sheriff were not restored to him, but a new jurisdiction was set up in the justices of the peace. On the civil side another principle at least as old as Henry II made it unnecessary for a man to answer an action for land unless it was brought by the king’s writ.2 The statute of Marlborough reserved all writs of false judgment for the king’s court3 and so the county was prevented from becoming a court of review over the lesser local jurisdictions. No trespass alleging contra pacem regis could be tried in the county, for it was technically a plea of the Crown;4 and no trespass, debt or detinue could be brought where more than forty shillings were involved—a rule which is stated in the reign of Edward I, although its origin is uncertain.5 It came to be held (as we have seen) that the suitors were still the judges, even in actions brought under a writ with the justicies clause, a collection of archaic rules and procedure had to be observed, with the result that justicies could not compete with another reform more in accordance with the trend of legal development—that is to say, the system of trials at nisi prius.6

The county was never a “court of record” in the eyes of the superior courts at Westminster,7 and its rolls (when rolls were kept) were not Edition: current; Page: [94] admissible in evidence on the same basis as “solemn” records; instead, when a plea was removed from the county to the Court of Common Pleas, four knights came up to Westminster and recounted what had happened—and on some occasions we even find them ready to wage battle by a champion in support of the truth of their unwritten “record”.1

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CHAPTER 2: SEIGNORIAL JURISDICTION

SUMMARY page
The Manor 95
Frankpledge 97
A Manorial Court at Work 98
Counties, Palatinates, Honours 99

Besides all this there is the second aspect of the courts we have just described, namely, the effect upon them of the local territorial magnate. Here we come to an extremely obscure and difficult subject. The sources of the authority of a great lord or baron can usually be traced with some confidence, but the rise of numerous petty lordships all over the country and their effect upon the existing communal organisation are matters of greater complexity.1 It is even difficult to classify the different sorts of power which a local lord could exercise at various times. In some cases the lord’s jurisdiction was personal; in others it was territorial; and in many cases it is impossible to draw the line. On the one hand we have the development of the manor, and, closely connected with it, of the view of frankpledge; on the other it is clear that in many cases the whole organisation of the hundred court fell into private hands, and it is even fairly common to find that besides owning the hundred court the lord will even exclude the sheriff entirely, and instead of the sheriff’s turn the lord’s steward will hold a “court leet”.

THE MANOR

The manor as it existed in its typical form in the England of the thirteenth century is the product of a large number of different lines of development, some of them of very ancient date, which gradually converged to form one institution. One of its most striking features is the fact that all the tenants hold dependently of the lord of the manor. The origins of this may perhaps be sought in the tendency of small landowners to commend themselves and their land to some local magnate who seemed more likely to give them protection during such troubled times as the Danish invasions and the fairly constant wars between petty kingdoms. The weakness of the central power, too, undoubtedly promoted the growth of small local jurisdictions which were ready to undertake the task of repressing crime and organising military defence. This process was very probably hastened by the heavy burden of taxation. Edition: current; Page: [96] In many parts of the world, even to-day, it has been found necessary to curb the activities of the capitalist who takes advantage of a small landowner who is unable to meet his taxes. In pre-Conquest days no such limits were ever thought of, and it is extremely probable that a great deal of free land was converted into land dependently held under the pressure of taxation. This did not mean that the poor owner was dispossessed; the change was principally to burden him with services in money, labour or products payable regularly, in return for which the lord took upon himself the public burdens of the property. In this connection it is essential to remember that taxation in the middle ages did not usually recur at regular intervals; the small man who had little economic reserve might therefore have to meet sudden liabilities quite beyond his means, although if those liabilities had been evenly spread over a length of years they would have been much less burdensome.

These dependent tenants were, it seems, originally freemen; there is no evidence of any extensive number of slaves or bondmen in early Anglo-Saxon England. In the course of time, however, the burdens upon these tenants steadily increased; more and more labour becomes due, and the increasing arbitrariness of its exaction will emphasise the baseness of the tenure. By the time we get to Domesday Book the development of serfdom has rapidly proceeded. On many manors it seems to be completed; on others a few faint traces of freedom still remain, and this is particularly so on the vast but scattered estates of the Crown. Throughout the middle ages these “sokemen of the ancient demesne” will be accounted as slightly higher than the villeins, and centuries later we shall find ambitious bondmen having lawyers search Domesday Book for them in the hope that it may turn out that their manor once formed part of the ancient demesne of the Crown.

In the majority of cases, however, these once free tenants became servile. Besides this lordship over land there was a good deal of personal jurisdiction. There are various origins for this also. Doubts have recently been cast upon Maitland’s view that the Anglo-Saxon “sac and soc” included the right to hold a petty court, to compel tenants to attend it, and to take profits from it.1 In those cases where a manor contained freemen as well, there may have operated the universal feudal principle that every lord can hold a court for his free tenants. Where the whole area of an ancient village community had fallen into the power of a lord it was natural that he should supervise the whole business of arranging the agricultural economy of the inhabitants, for, in spite of all the feudal superstructure which the common law has erected, the foundation of the later manor is often an ancient village community.

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FRANKPLEDGE

To all this must be added the system of frankpledge which later became typical of a good many manors. Its history can be clearly traced back to the Anglo-Saxon period where we find the institution of friborh. “Borh” is the root which we have in the modern word “borrow”, and seems to have the significance of security or surety. Its general feature is the provision for every person of some other persons who shall be borh or security that whatever moneys have to be paid will be forthcoming, and that if necessary the party can be produced in court. A master was always borh for his servants; members of a family might be borh for one another; or gilds might be formed whose members undertook to be borh for their brethren. To all this must be added the obscure institution of the tithing whose root significance is a group of ten men, naturally suggesting some intimate relationship with the hundred. Eventually the tithing became a territorial division with a tendency to coincide with the vill or township, and the tithing-man, its head, became the village constable. Cnut required his subjects to be in tithing and in borh as well,1 and regular means were established for ascertaining that every person (who was not of some substance) was duly enrolled in tithing and in borh. This machinery was operated by the sheriff through the hundred court. At the time of the Conquest it seems that lords were able to shift their responsibility of being borh for their tenants on to the tenants themselves;2 this change was not very difficult, especially where the lord either owned or controlled the hundred court which had the duty of working the tithing system. The result was known to the Norman lawyers as frankpledge, and lords who owned hundred courts might also have the additional right (which normally belonged to the sheriff), of verifying the proper enrolment of every tenant in a frankpledge. This was called “view of frankpledge”.3

Under seignorial influences, then, we have seen the vill gradually falling under the control of the lord of the manor, save only for a few important police duties which the Crown imposed upon the vill direct, and even here it may be that the lord found ways of taking a profit. The institution next above the vill, the hundred, likewise fell into private hands in numerous cases, and in many instances the lord of a hundred could exclude the sheriff from his tourn in that particular hundred and hold it himself as a “court leet”. In later times, legal theory attributed to many manors three different courts—court leet, court baron, court customary. Even when the theory was current law, there were practical Edition: current; Page: [98] difficulties in separating the three jurisdictions1 and during the middle ages there was little attempt to draw fine distinctions. The leet was the most distinctive, with its view of frankpledge: for the rest, a general and wide jurisdiction was exercised without regard for speculative difficulties.

A MANORIAL COURT AT WORK

An interesting example of a manorial court (with a court leet held, as usual, twice a year) is to be found at Littleport near Ely, and a few extracts from its rolls2 will give a good idea of the vigour and usefulness of such courts, and explain, incidentally, why some boroughs found it useful to acquire from the Crown a grant of leet jurisdiction. As an example of its most solemn form of procedure we may take what looks very much like an original writ3 addressed by the lord of the court (the bishop of Ely) to his steward in 1316: but more typical of its usual activities are the numerous cases of petty offences, principally larcenies, which are punished by banishment4 and offences against the by-laws relating to the agricultural arrangements of the village—and like most mediaeval communities there was a strong protectionist policy which even went so far as to fine persons who “exported” eggs “to the great destruction” of the people.5 Two men incurred a fine for having “falsely, maliciously and in contempt of the lord, defamed his court by saying that no one can obtain justice there”.6 Civil cases illustrate the wide variety of remedy obtainable in the court. A seller who warranted two ewes as sound has to pay fine and damages when they turned out to be diseased,7 and the owner of a dog has to pay for the damage it does:8 Rose called Ralph a thief, and Ralph called her a whore, and so both are fined, and since the trespass done to Ralph exceeds the trespass done to Rose she must pay him damages of twelve pence for the difference.9 Slandering a man’s goods so that he lost a sale is visited with fine and damages.10 Beatrice, who should have made a shirt for Agnes, has to pay one penny damages for failing to do so, and in at least two cases of contracts to do work, the court ordered the defaulter to be distrained until he did it—remarkable examples of specific performance.11 These and many other entries show how vigorous and flexible was this Edition: current; Page: [99] manorial law in the period around the year 1300, when it is certain that the common law administered by the king’s courts at Westminster gave no remedy for the breach of simple contracts, nor for such torts as slander.

In these cases it will be seen that prosecutions are on the presentment of a jury. In manors which had not received (or had not assumed) this royal right, it was the bailiff who prosecuted.1

The efficiency of the manorial form of government is attested to a remarkable degree in the history of Manchester. This rich and flourishing community was a manor belonging to the Mosley family, who purchased the manorial rights in 1596 and continued to enjoy them until 1845, when the municipality (created in 1838) bought them for £200,000.

“The lord of the manor had the right to tax and toll all articles brought for sale into the market of the town. But, though the inhabitants were thus to a large extent taxed for the benefit of one individual, they had a far greater amount of local self-government than might have been supposed, and the court leet, which was then the governing body of the town, had, though in a rudimentary form, nearly all the powers now possessed by municipal corporations.”2

COUNTIES, PALATINATES, HONOURS

When we come to the county, however, we find that seignorial influence was less easy to assert. In one or two cases the office of sheriff became hereditary in a great family, but this advantage was soon destroyed by the strictness with which hereditary sheriffs, like all other sheriffs, had to account to the Exchequer. Even the appointment of an earl did not have the effect of putting the county into private hands; the county was still administered by a royal sheriff accountable to the Crown, the earl only receiving the third penny. A few counties became palatine, that is to say, exempt, or almost so, from royal jurisdiction (Chester, Lancaster and Durham); for this there were definite military reasons, as these border counties had to be kept almost continuously on a war footing as a defence against the Welsh and Scotch. The processes which we have seen at work in the township and the hundred, the Crown refused to tolerate in the county; and so the county became the basis of royal power in local government.

Generally speaking, therefore, private persons did not enjoy any jurisdiction higher than that of a hundred court with court leet. The result was inevitably to simplify the task of the Crown in effecting and maintaining the unity of the country, and, in the end, to facilitate the rise of the common law into its present position of complete and unrivalled primacy. At one moment, however, it seemed that things might have been otherwise. Even before the Conquest there were some very extensive private jurisdictions, and after the Conquest they continued to exist in a more feudalised form, very frequently being styled Edition: current; Page: [100] “Honours”. The honour was governed by a court which consisted of the barons who held land of it, and the procedure and jurisdiction of the court resembled closely that of the King’s own court. A few good examples1 of cases in honorial courts in the middle of the twelfth century show how important questions of property could be litigated, and sometimes settled by means of final concords, in the court of an honour without the necessity of invoking royal justice or its machinery.2

The decline of such jurisdictions is an important factor in our legal history. Some survived late because they were held by churches, but many vanished through escheat or forfeiture, or were broken up through descent to heiresses. There seems to have been little direct attack upon them at any date, though they must all have felt in time the competition of the royal courts with which they had concurrent jurisdiction principally in matters of real property.

We have therefore traced, very briefly, the characteristics of the old communal jurisdictions, together with their partial subjection to the growing forces of seignorial jurisdiction. The only place where these forces were checked was in the county, and their antagonist there was the Norman monarchy. We now come, therefore, to the consideration of the power of the Crown over the more ancient local jurisdictions.

Edition: current; Page: [101]

CHAPTER 3: THE CROWN AND LOCAL COURTS

SUMMARY page
The Rise of the Sheriff 101
Itinerant Justices 102
The Removal of Pleas 104
The Results of Centralisation 105

The unification of England by the Anglo-Saxon kings raised the problem of local institutions. It can hardly be said that they solved it, for throughout the Anglo-Saxon period government was local rather than royal—indeed, the idea of national institutions centring in the Crown is Norman rather than Anglo-Saxon.1

THE RISE OF THE SHERIFF

For all that, the Anglo-Saxon Crown did begin a policy of establishing connections with local institutions, and, as far as circumstances permitted, of exercising some sort of control over them. The shire or county, as we have said, frequently represented an ancient petty kingdom, and its titular head, the alderman, represented the ancient royal family. It is clear, therefore, that the alderman might be expected to uphold local institutions against any attempt at centralisation. This, in fact, seems to have been the case, and the situation was soon met by placing beside him a new official, the King’s reeve, who was answerable to the national King and not to the alderman. The duties of the king’s reeve seem to have been very miscellaneous, including both administration and judicial business.2 It was inevitable that as time went on the King’s reeve should grow in importance at the expense of the alderman, and that finally he should take the alderman’s place and become the principal officer of the shire under the name of “sheriff” or “shire reeve”. The complaints of his extortion and oppression are constant in the later Anglo-Saxon age, and it is clear that the Crown had some difficulty in maintaining control over its own sheriffs. After the Conquest there was a tendency to regard the English sheriff as the equivalent of the Norman vicomte and to develop the office upon those lines. The Norman kings steadily resisted this; they were strong enough to control even the very powerful sheriffs of the late eleventh century, and to use their local influence in the interest of the Crown. They therefore did not hesitate to appoint as sheriffs men of considerable importance. Edition: current; Page: [102] After a long period of political struggle, the Crown finally adopted the policy of limiting the sheriff’s tenure to one year, and of choosing him from the upper middle class of landowners.

The principal factor in controlling the sheriff was the annual accounting at the Exchequer. The severity of the exchequer’s dealings with sheriffs is a remarkable testimony to the power of the Crown, and observers noted with grim satisfaction that their local tyrant entered the exchequer, shaking in his shoes.1 Nor did a sheriff’s troubles cease with his term of office—or even at his death, for the exchequer process remorselessly pursued his heirs for arrears of his account.2 Such ruthlessness left the sheriff no alternative to amassing as big a surplus as possible in order to meet these contingencies. Unusual situations were met, however, by extraordinary means, and more than once large numbers of sheriffs were summarily deposed, while Henry II’s reign has left us some illuminating documents concerning his Inquest of Sheriffs—a general inquiry into the misdeeds of those officers.3 It is not an infrequent occurrence to find a wholesale removal from office of other ministers too, even judges—a famous example was when Edward I removed all the judges—for in the middle ages, as now, the enforcement of political morality was apt to be spasmodic rather than continuous. Into the political history of the sheriff’s office we cannot now enter.4 For our purpose the important aspects are the effect of these devices upon judicial institutions.

At the time of the Norman Conquest the sheriff, as the King’s representative, enjoyed a good deal of judicial power, which caused the Crown considerable anxiety, for there was no effective means of controlling him, except the somewhat desperate remedy of discharging him when popular unrest grew too strong. In the Norman age a number of attempts were made to find some check upon his powers as a royal judge. Sometimes the Crown appointed a permanent justiciar to sit in the county; the office of coroner was developed in order to serve as a check upon the sheriff; by the Great Charter it was finally declared that no sheriff should for the future hold pleas of the Crown. This definitive solution robbed the sheriff of a great deal of his ancient power, but it only became workable because the Crown had been steadily developing other means for disposing of Crown pleas.

ITINERANT JUSTICES

In the first place, recourse was had to an ancient device whereby the Crown sent out travelling officials who should inquire into the Edition: current; Page: [103] conduct of local officers and hold the royal court in the localities they visited. Sometimes their commission was general; at others they were specially delegated for the trial of some particular action or class of actions. We thus have numerous references to royal commissioners sitting in the county court for the transaction of some particularly important business. Henry II systematised some early experiments of his grandfather Henry I, and sent travelling justices on several occasions through the realm.

In the thirteenth and fourteenth centuries these justices sometimes received the very ample civil, criminal and administrative jurisdiction which modern historians call the General Eyre,1 and their session in the county court was an impressive demonstration of the royal power over all sorts and conditions of men, from the baronial owners of great franchises and the sheriffs down to the meanest villein. A thorough investigation took place of all the judicial and administrative business which had arisen in the county since the last eyre. The sheriff’s records (and those of his predecessors) were checked from those of the coroners; oral presentments of long-past occurrences were checked from the rolls, and the slightest discrepancy entailed a fine. Presenting juries were empanelled and provided with a list of “chapters of the eyre” reminding them of over a hundred matters of which they were to inquire. Besides its administrative powers and criminal jurisdiction, the justices in eyre also had the jurisdiction of the court of common pleas and so all civil business affecting the county was also theirs, for the entry of the eyre into a county automatically transferred to it all pleas then in progress concerning the county before the court of common pleas. Indeed, this was inevitable on those occasions when all the justices of the common pleas were commissioned to travel in eyre, for then the court of common pleas at Westminster ceased to sit.2 By the opening of the fourteenth century the general eyre had become something of an anachronism, albeit a source of great financial profit to the Crown and correspondingly oppressive to the subject. A rule was established that an eyre should not visit a county within seven years of a previous eyre,3 and several times the commons petitioned against them. It is believed that eyres ceased to be commissioned after the middle of the fourteenth century.4

The eyre was too ponderous and too intermittent a machine to deal Edition: current; Page: [104] with the ever-present problem of bringing royal justice to the shires. For practical purposes the Crown relied on a variety of travelling justices (some of whom were not professional lawyers) with limited commissions. Thus Magna Carta provided for frequent justices to take the assizes of novel disseisin and mort d’ancestor;1 frequent commissions were issued to “deliver the gaols”, i.e. to try the prisoners; a single case, or a group of cases, might be tried before special justices of oyer and terminer; and in the middle of the fourteenth century it looked as if the King’s bench might become a sort of eyre court, for it was frequently sent on hasty tour through several counties.2

The process was carried even further. Just as the King’s justices in eyre went around the country sitting in each county court, as it were, for the transaction of all sorts of business and a general inquiry into abuses, so the sheriff himself travelled around his county sitting in each hundred court twice a year. Here he acted strictly as a royal deputy, serving merely as a liaison between the central authority and local institutions, for since the Great Charter he could no longer “hold” pleas of the Crown, but only “keep” them, that is to say, guard the prisoners and make memoranda of the circumstances, which were to be laid before the king’s commissioners at their next visitation; and by the time of Bracton and Fleta it came to be the accepted theory that not only the sheriff’s turn, but also its equivalent, the “court leet”, are royal courts held in virtue of a presumed delegation of power from the Crown. In short, the Crown, for most practical purposes, is the fountain of justice.

THE REMOVAL OF PLEAS

The royal supremacy was asserted in yet other ways. Early in the twelfth century it was already a principle that “false judgment” (i.e. proceedings to review a judgment in an inferior court) was a royal plea, and over a century later it was embodied in a statute.3 Hence a judgment of a county court could be examined in the court of common pleas by means of a writ of recordari facias loquelam, and a judgment in a seignorial court by the very similar accedas ad curiam.4 Nor was it necessary to await judgment before invoking the royal jurisdiction, for a plea pending in a seignorial court could be removed into the county court by a procedure called tolt, and from the county into the common pleas by a writ of pone.

Edition: current; Page: [105]

THE RESULTS OF CENTRALISATION

The removal of pleas of the Crown from the sheriff, accompanied by the transfer of that jurisdiction to the Justices in Eyre and to other commissioners or travelling justices as the Eyre became obsolete, and the centralisation of pleas concerning land in the hands of royal justices sitting by royal writ, mark the permanent subjection of the county and all its officers to the Crown. A unitary state was no doubt an advantage in the middle ages when so many nations were divided into feudal subdivisions; but the cost was heavy. The very fact of several bodies of law and custom existing in one nation sometimes had fruitful results for legal science. In France the multiplicity of jurisdictions led to a comparative study of legal rules which was a valuable incentive to criticism and improvement, just as in America to-day the numerous state systems invite and indeed compel a critical appraisal of their respective merits. In England, on the other hand, our too early unification left the common law without an effective competitor, and bred up a profession which was only just sufficiently aware of the existence of other systems to glory in its isolation. That state of mind is not altogether past, and its results are indelible.

A more specific consequence of the dominance of Westminster is the fact that England had to wait until 1846 for a co-ordinated system of local courts. The Crown’s incurable fear of the sheriff is largely responsible for this. How great an opportunity was missed can be seen by looking at the vigorous and useful institution of the sheriff in Scotland, where the office was allowed to develop along natural lines.1

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CHAPTER 4: THE JURY

SUMMARY page
1. Early prototypes of the jury
Supposed Anglo-Saxon Origins 107
English and Scandinavian Juries 108
2. The jury for royal administrative inquiry
Frankish Juries 109
3. The jury for the trial of property cases
Norman Juries and Assizes 110
Inquisitions in England 111
Assizes in England 111
4. The jury for royal criminal inquiry
Criminal Law: The Grand Jury 112
5. Ancient modes of trial
The Ordeals 113
Wager of Law 115
Trial by Battle 116
Abolition of the Ordeal 118
6. The jury as a new mode of trial
Evolution of the Petty Jury 120
An Example of the New Criminal Procedure 121
Trials on Indictment 124
The Inscrutable Jury 125
Jury Trial becomes Compulsory 125
Rationalisation of Jury Trial 126
The Jury as Representatives 127
Early Opinion about the Jury 129
The Early History Summarised 130
7. Post-mediaeval problems
The Review of Verdicts 131
The Punishment of Obstinate Jurors 133
Bushel’s Case 134
New Trials 135
Constitutional Position of the Jury 136

It is in this complicated interplay of royal and local institutions that the origins of the jury are to be sought; so we can now appropriately turn from the study of the vill and the hundred to the growth of the Edition: current; Page: [107] system of presentment which was so prominent a part of their constitution, and to the later transformation of that system into a method of trial as well as accusation. At the same time, the county’s loss of effective jurisdiction over pleas of land was intimately connected with the rise of the royal writ, and this will be almost synonymous with the use of an assize or a jury of twelve. The criminal jury, therefore, can be treated here because it grew out of the natural expression of the vill and the hundred; but the civil jury in the old real actions was based (as we shall see) upon a somewhat different, though related, idea, which only came to an end with the abolition of real actions. The modern civil jury, it must be remembered, is descended from the old criminal jury through the action of trespass, which was at first partly criminal and later entirely civil in its character.

The discussion may well open with Maitland’s definition of the jury: a jury is a body of neighbours summoned by a public officer to answer questions upon oath.1 It will be seen that there is nothing in this definition which restricts the jury to judicial proceedings; on the contrary, the definition deliberately makes room for the fact that the jury, like so many institutions, was an administrative device which only later became confined to courts of law.

The story is complicated because several different lines of development were being pursued simultaneously, and so it is particularly necessary to have the outlines clearly in mind while the details of this chapter are being studied. The subject will be dealt with in the following order:

  • 1. Early prototypes of the jury;
  • 2. The jury for royal administrative inquiry;
  • 3. The jury for the trial of property cases;
  • 4. The jury for royal criminal inquiry;
  • 5. Ancient modes of trial;
  • 6. The jury as a new mode of trial;
  • 7. Post-mediaeval problems.

1.: Early prototypes of the jury

SUPPOSED ANGLO-SAXON ORIGINS

Ever since the seventeenth century when juries began to express sentiments against the government, there has been a tendency for the jury to become, at least in popular thought, a safeguard of political liberty. It is only natural, therefore, that its history should have been idealised and traced back for patriotic reasons to the supposed golden age of Anglo-Saxon institutions. Various theories have been proposed. Edition: current; Page: [108] According to one the jury is descended from the doomsmen who find the judgment and declare the law and custom in the ancient communal courts. This explanation, however, is by no means satisfactory, for the doomsmen did not find facts (for which there was other machinery available) but declared the law which applied to a state of facts which had already been established. A second suggestion would seek the origin of the jury in the compurgators, of whom we shall speak later; this is open to the objection that the compurgators were summoned by a party and not by a public officer, and could not be compelled to act unless they cared to.

ENGLISH AND SCANDINAVIAN JURIES

A third and more plausible suggestion would see an origin of the jury in a remarkable passage in the laws of King Ethelred promulgated at Wantage, which probably dates from about the year 997.1 It is this:

“And that a gemot be held in every wapontake; and the xii senior thegns go out, and the reeve with them, and swear on the relic that is given them in hand, that they will accuse no innocent man, nor conceal any guilty one. . . .”

It cannot be denied that we have here a remarkable anticipation of the Assize of Clarendon which later was to establish as a regular procedure the presentment of suspected criminals by the hundred. There are one or two other traces in various parts of Scandinavia which may point in the same direction, and by the fourteenth century Sweden certainly had a developed system of presenting juries, and indeed had also created a trial jury (called the Nämnd) both in civil and criminal proceedings.2 The origin and the growth of the nämnd seem to be quite independent of the corresponding institutions in England, and in fact it is not unprecedented to find that two different systems independently come to substantially the same conclusion; but when the historian sees the similarity of the conclusions he must beware of assuming that they are the result of direct contact, unless that contact can be proved by independent evidence. It may well be that this passage in the laws of Ethelred, enacted with a view to the Scandinavian institutions prevailing in that portion of England which had been occupied by the Danes, represents an independent tendency of Scandinavian law. Moreover, before we are entitled to see here an origin of the jury, it will be necessary to establish continuity between the Law of Wantage and the jury as it existed after the Norman Conquest. This it is impossible to do, and here is the second lesson for those who would undertake historical Edition: current; Page: [109] investigation. The appearance of a principle or institution in one age, followed by the appearance of the same or a similar institution at a considerably later age, must not lead one to suppose that the later is derived from the earlier. Before this conclusion would be justified further evidence of continuity must be adduced; in the case now before us there is a gap of nearly two hundred years between the Wantage enactment and the next appearance of the presenting jury. Until that gap has been filled by showing continuity between the Anglo-Danish institution and the jury which is continuous from Anglo-Norman times, it would be unsafe to look to Ethelred’s law for the origin of the grand jury.1

2.: The jury for royal administrative inquiry

FRANKISH JURIES

The history of the jury has now been settled by the famous researches of Brunner,2 supplemented by those of Haskins,3 who from newly discovered evidence partly filled the gap which Brunner had to admit. This history certainly goes back to the early ninth century, when we find the Emperor Louis the Pious, son and successor of Charlemagne, ordering in 829 that for the future the royal rights shall not be ascertained through the production of witnesses, but by the sworn statement of the best and most credible people of the district.4 It seems that the government had little faith in the production of witnesses by parties who were disputing its claims; such testimony, it was felt, was sure to be interested. Instead, the Emperor undertook to compel the most considerable people of the county to declare upon oath what the customary royal rights were, and it may very well be that this method was more likely to produce the truth than the voluntary testimony of witnesses supporting their friends against the government. If we put ourselves for a moment in the place of a contemporary, we might imagine that there would be some grumbling at superseding an ancient institution of witness proof by the high-handed proceeding of compelling people selected by the government to speak on oath, whether they wished to or not. It might have seemed, perhaps, that the administration had usurped dangerous powers and was settling disputes in its own favour by unorthodox methods. To such an objection, if ever it were raised, history has given an answer: in the Edition: current; Page: [110] course of a thousand years this drastic administrative machine has been transplanted to an unknown continent, where by a strange twist of history it has become the constitutional bulwark of the public against the executive.

It has been suggested that Louis the Pious did not invent this, and that there was some precedent for the device as early as a law of Valentinian I (369), but the argument here is not quite so convincing—at least to Romanists, who are rather loath to admit the paternity of the jury. But from Louis the Pious onwards the evidence is clear enough, until the failure of the line of Charlemagne, when we come to a very obscure period—the darkest moment of the dark ages—and it was here that Brunner had to admit that there was a gap in his evidence.

3.: The jury for the trial of property cases

NORMAN JURIES AND ASSIZES

This gap has been filled to some extent (though not entirely) by the discoveries of Professor Haskins, who has accepted Brunner’s theory that the institution was carried over from the crumbling empire of the Carolingians to the new duchy of Normandy, and that the dukes used it there in much the same way as the emperors had before them.1

At first the jury had been used by the government only as a particularly drastic means of establishing its own rights. This indicates some dissatisfaction with existing methods of proof, and it is clear that this dissatisfaction was shared by litigants as well, for the next stage in the history shows us private persons seeking as a favour from the duke or the King the privilege of having their rights ascertained by means of an “inquisition”, as the institution was then called. In other words, the jury of administrative inquiry was on the point of becoming a jury of trial in civil procedure. Some lords, both lay and ecclesiastical, even went so far as to introduce the jury into their private courts without royal or ducal permission (as far as we can see). The crown therefore was in peril of losing its monopoly of jury trial, although it retained and developed the natural advantage of finding it easier to compel the attendance of jurors than did most other lords.

Henry I while he was duke of Normandy occasionally bestowed the privilege of trial by inquisition (or jury) upon a favoured church, such as Bayeux;2 Duke Geoffrey3 carried the process a step further and Edition: current; Page: [111] by means of an enactment, called an assize, made trial by inquisition the general method for all important litigation of a civil character.

INQUISITIONS IN ENGLAND

Very soon after the Norman Conquest the inquisition appears in England as an administrative device for obtaining all sorts of information useful to the government from an unwilling populace. The officers of William the Conqueror were told to—

“enquire by the oath of the sheriff and of all the barons and of their Frenchmen, and of all the hundred, of the priest, of the reeve, and of six villeins of every vill, what is the name of the manor, who held it in the time of King Edward, who now, how many hides, how many ploughs,—how many men, how many villeins . . . how much it was worth and how much now; and all this at three times, the time of King Edward, the time when King William gave it, and now”—1

and the answers were collected in Domesday Book. The Constitutions of Clarendon, which settled the controversy of Church and State in 1164, recount that—2

“This record or recognition was made in the year 1164 in the presence of the King concerning a part of the customs and liberties of his ancestors which ought to be held and observed in the realm. And by reason of the dissensions and discords which have arisen between the clergy and the King’s justices and barons concerning his dignities and customs, this recognition was made before the archbishop and bishops and clergy, and the earls, barons and nobles of the realm.”

Here we have the principle of the inquisition used to ascertain even such vague matters as the customary political relations between Church and State.

ASSIZES IN ENGLAND

Henry II, when he became King of England, adopted the same policy as his father Geoffrey, and by a series of enactments, likewise called assizes, threw open trial by inquisition to the whole public, who could choose between half a dozen different procedures, according to the nature of their cases. Thus, the Constitutions of Clarendon, c. 9, in 1164 allowed a recognition or inquest to determine whether particular land was held by ecclesiastical or lay tenure.3 Two years later another assembly at Clarendon seems to have established the assize of novel disseisin.4 In 1176 mort d’ancestor was created,5 and probably in 1179 came the most striking extension of inquest trial6 when it was allowed Edition: current; Page: [112] as a matter of course (at the option of the defendant) to replace battle in the most solemn of all actions, the writ of right.

From this time onwards the word “assize” takes several new meanings; it began by signifying a solemn session of a council or a court, and soon came to mean an enactment made at such a meeting; among the most important of these assizes were those establishing trial by inquisition, and so it soon became customary to describe the inquisition of twelve men as an assize, while the various procedures leading up to this form of trial (which we should now call forms of action) were likewise called assizes. Finally, travelling justices were established in the thirteenth century in order to try these assizes more speedily, and these justices were naturally called justices of assize, and their sessions in the provinces were called the assizes.

All of this history (with the exception of the Law of Wantage) has therefore been concerned with the use of the inquisition as a means of trying royal rights, and later, by royal favour, the rights of litigants who have been fortunate enough to acquire the privilege, and finally its extension to everybody who makes use of certain procedures called assizes—whose nature we shall discuss more fully in treating of the forms of action. Nothing, so far, has been said of the jury in criminal trials, and to this aspect of the question we must now turn.

4.: The jury for royal criminal inquiry

CRIMINAL LAW: THE GRAND JURY

A great deal of information of value to the King could be obtained by compelling the inhabitants of a small community to answer questions, to inform against evil-doers, to disclose mysterious crimes, and to tell of their suspicions. Here we come to royal rights which are not matters of property or custom, but rather possible sources of jurisdiction, and therefore of profit. An inquisition, vill by vill, had established the enormous tax-return called Domesday Book, but the inquiry into crime and criminals was also a matter of deep concern to the Crown, not merely as a matter of public policy but also as a source of revenue, for criminal jurisdiction with its fines and forfeitures was always lucrative.

By this means the transition was effected, and in the Assize of Clarendon (1166) we find the establishment of a definite system of inquisitions as part of the machinery of criminal justice which have come down to our own day1 as “grand juries”.

Chapter I

“First the aforesaid King Henry established by the counsel of all his barons for the maintenance of peace and justice, that inquiry shall be made in every county and in every hundred by the twelve most lawful men of the hundred and by the Edition: current; Page: [113] four most lawful men of every vill, upon oath that they shall speak the truth, whether in their hundred or vill there be any man who is accused or believed to be a robber, murderer, thief, or a receiver of robbers, murderers or thieves since the King’s accession. And this the justices and sheriffs shall enquire before themselves.

Chapter II

“And he who shall be found, by the oath of the aforesaid, accused or believed to be a robber, murderer, thief, or a receiver of such since the King’s accession shall be taken and put to the ordeal of water and made to swear that he was no robber, murderer, thief, or receiver of such up to the value of five shillings, as far as he knows, since the King’s accession. . . .

Chapter IV

“And when a robber, murderer, thief or receiver of such is captured as a result of the oath, the sheriff shall send to the nearest justice (if there are no justices shortly visiting the county wherein he was captured) by an intelligent man saying that he has captured so many men. And the justices shall reply telling the sheriff where the prisoners are to be brought before them. And the sheriff shall bring them before the justices together with two lawful men from the hundred and the vill where they were captured to bring the record of the county and the hundred as to why they were captured; and there they shall make their law before the justices.

Chapter XII

“And if anyone is captured in possession of stolen or robbed goods and is of bad repute and can produce no testimony of public purchase nor a warrantor of title he shall not make his law. And if the goods were not publicly acquired he shall go to the water because they were found in his possession.

Chapter XIV

“The lord King also wishes that those who make their law and clear themselves shall, nevertheless, forswear the King’s land if they are of bad renown and publicly and evilly reputed by the testimony of many lawful men, and cross the sea within eight days unless detained by the weather, and with the first favourable wind they shall cross the sea and never come back to England save by the King’s permission, and shall be outlawed, and if they come back shall be captured as outlaws.”1

5.: Ancient modes of trial

THE ORDEALS

An attentive study of this document will show the difficulties which confronted the government in the administration of criminal justice. The presenting jury from every hundred would very soon provide the royal officers with a goodly number of suspicious characters. But suspicion is not proof, and the presentment by the hundred, like its modern descendant, indictment by grand jury, is merely an accusation and not a conviction. Having found the suspects, how is the question of their guilt or innocence to be determined? The document we have just quoted mentions two methods, “making one’s law” and “going to the water”. We must now for a moment describe these and one or Edition: current; Page: [114] two other methods of trial then in use, for it was the limitations and uncertainties of the ancient methods which led to the development of the modern petty jury.

The most ancient of these was the ordeal, which took a variety of different forms. Its origin must date from before the introduction of Christianity, but the practice was so deep-rooted that the Church, in this as in other cases, felt bound to adopt it. In consequence we find the ordeal surrounded by Christian ceremonies which must, no doubt, have added considerably to its moral effectiveness—and perhaps even to its practical value as a psychological test of truth-telling. Of the several forms of ordeal in use the ordeal of hot iron was that most common for freemen. It was administered at the most solemn moment of the Mass; a special ritual was prescribed in the old service books telling us how the heated iron was to be carried by the accused over a distance of nine feet; then—

“the hand was sealed and kept under seal for three nights and afterwards the bandages removed. If it is clean, God be praised; but if unhealthy matter is found where the iron was held he shall be deemed guilty and unclean.”1

Another variant was the ordeal of boiling water, where the accused had to plunge his hand into a bowl of boiling water and take out a stone; his guilt or innocence was ascertained by inspecting his hand after three days. The ordeal of cold water was more often applied to the unfree. The accused was solemnly exhorted by the priest during Mass to confess his guilt if he were guilty; if he persisted in maintaining his innocence then—

“let the hands of the accused be bound together under the bent knees after the manner of a man who is playing the game of Champ-estroit. Then he shall be bound around the loins with a rope strong enough to hold him; and in the rope will be made a knot at the distance of the length of his hair; and so he shall be let down gently into the water so as not to make a splash. If he sinks down to the knot he shall be drawn up saved; otherwise let him be adjudged a guilty man by the spectators.”2

Still another variety of ordeal was that of the cursed morsel, which was used only for the trial of clergy. This consisted in making the accused swallow a piece of food in which was concealed a feather or such like; if he was successful, he was innocent, but if he choked he was guilty. Although the Church adopted the ordeals which it found in use among the populace, some of the more critical clergy had misgivings. Then also there was obviously the possibility of the priest manipulating the ordeal, and Peter the Chanter, a celebrated theologian of the university of Paris (ob. 1197), suggests that he had some sort of moral responsibility Edition: current; Page: [115] for the rightness of the result.1 Its abolition was rendered all the more difficult by the system of fees which grew up around it—always a powerful obstruction in the way of reform. A particular church, like St. Peter’s, Northampton, might have a monopoly of the proceedings;2 elsewhere, the archdeacon might be entitled to dues—as at Coventry where he received thirty pence for each ordeal.3

In the great majority of cases the ordeal was the accused’s mode of defence; yet on rare occasions we may find a prosecutor offering to undergo an ordeal himself in proof of his accusation,4 and in two cases of 1202 the accused was given the choice of bearing the iron himself or of letting the accuser do it—and naturally elected the latter procedure.5 Countless varieties of ordeal are still in use in different parts of the world among primitive tribes.6

WAGER OF LAW

The “wager of law” which we have just mentioned, although still essentially an ordeal, contained features which give the impression that its principle was rather more rational. The party who was called upon to make his law had to find a number of people, twelve or some other number fixed by the court according to circumstances, and then take a solemn oath that he was innocent. His companions, or “compurgators” as they were called, then swore that the oath which he had taken was clean.7 In other words, the court calls upon the accused to produce a specified number of people (occasionally from a particular class or even from the names on a given list) who are prepared to swear that in their opinion his oath is trustworthy. They do not swear to the facts of the case, but merely to their judgment that the accused is a credible person. Wager of law, therefore, reduces itself to a character test; in the earlier period when there were strong religious sanctions surrounding the oath it is clear that a disreputable person would have difficulty in finding compurgators. Cases of failure to make one’s law do occur from time to time in the records.8 The Church used it considerably under the title of “Canonical Purgation” in circumstances Edition: current; Page: [116] where other modes of proof were impossible, and long after the Reformation it survived in ecclesiastical courts. Opinion as to its value seems always to have been divided. The passage we have quoted from the Assize of Clarendon1 makes it clear that the Crown had little respect for it, at least as a defence to criminal charges. On the other hand, certain towns, and notably the city of London, stubbornly retained compurgation as a defence to charges even of felony. They seem to have regarded it as a valuable privilege, which is surely not without significance, for business interests, then as now, must have had the firm enforcement of criminal law often in mind. It should perhaps be noted that the privilege was restricted to actual members of the city and was not extended indiscriminately to all the inhabitants. The “great law” of London must have been a severe test. City officials chose the compurgators, eighteen east of Walbrook and eighteen west of Walbrook, subject to challenges by the accused; if the charge was homicide, the failure of any one of the thirty-six compurgators would be enough to send the accused to the gallows.2

In civil matters, however, there are signs that it had a place; contemporaries seem to have regarded it as superior in some cases to witness proof.3 The citizens of London as late as 1364 obtained a statute preserving their right to wage law as a defence to debts which were claimed on the evidence of a merchant’s books—it is significant that a mercantile community should consider compurgation successfully performed as more weighty evidence than a merchant’s accounts.4 In the actions of debt and detinue wager of law as a defence lasted until the nineteenth century. The courts in such cases endeavoured to substitute jury trial as far as possible, both by developing alternative actions and by strictly defining those few cases in which it lay. It was not finally abolished until 1833.5

TRIAL BY BATTLE

The Normans introduced trial by battle—unless, indeed, “trial by battle may well have been known in the Danelaw throughout the tenth century”.6 In civil cases it was not fought between the parties themselves, but between their respective champions. The ancient formula Edition: current; Page: [117] suggests that the champion was originally a witness who was also a tenant bound by homage to defend his lord’s title, and that a judicial duel between contradictory witnesses was allowed to decide the rights of the parties. The champion’s regular oath (which soon became a matter of mere form)1 stated that his father on his deathbed had informed him that the plaintiff had the right which was then in dispute, and charged him to maintain that right with all his power. We have already mentioned that when the county court recorded its proceedings for the purpose of review by the Court of Common Pleas, a party might dispute the accuracy of the record and compel the county to defend it by battle. We very soon find from the rolls that there was a professional band of champions who undertook business all over the country; courts would arrange the dates of battle so that the champions could fit in their engagements conveniently. Some very great landowners, such as the larger monasteries, were so constantly involved in litigation that they maintained their own full-time champions. The names of these champions constantly appear on the rolls, and we sometimes hear of a champion’s “master” or manager,2 and of a champion who abandoned his client because the other side offered him a premium.3 It is therefore not surprising that a bishop should have regarded a champion as unsuitable for holding a rectory.4 But in criminal cases battle was a much more serious affair. It lay when a private person brought a criminal charge against another, and was fought by the accuser and accused in person. It was deadly; if the defeated defendant was not already slain in the battle he was immediately hanged on the gallows which stood ready. As it only lay in these private proceedings (called “appeals of felony”) there was no question of trial by battle where the accused had been indicted or where the Crown was a party.5

A curious incident in 1774 throws light upon the perverse uses to which history can be put, especially by those who have given but little thought to it. Events in Boston decided the English Government to improve the administration of justice in Massachusetts by means of a bill which inter alia abolished battle on appeals of murder. This proposal roused opposition in England from those who affected to regard trial by battle as a great pillar of the constitution, and in the end it was withdrawn on the more liberal grounds that parliament ought not to restrain Edition: current; Page: [118] the liberties of the colonies.1 A last attempt to bring an appeal of murder in 1819 was frustrated by a hasty act abolishing appeals and also trial by battle in real actions.2

These, then, were the methods of proof available to the justices when confronted by the crowd of suspects brought before them through the presentment of the juries of the hundreds and vills.3 As for those whose guilt was beyond question, no difficulty arose. They had already been dealt with by very summary methods (which can hardly be called a trial) immediately upon their capture.4

It will be seen that there was very little choice. A criminal could be tried by battle only at the suit of a private prosecutor, and not at suit of the Crown; as for compurgation, the Assize of Clarendon tells us that a successful defence by this means was not very convincing, and even imposes punishment upon those who thereby clear themselves, if they are of bad character generally. Only the ordeal remained, and this was no doubt the general method of trial at the end of the twelfth century—tempered perhaps by the discretion of the justices, who may have allowed their private judgment upon the guilt or innocence of the accused to overrule the result of the ordeal if it turned out obviously unsatisfactory.

ABOLITION OF THE ORDEAL

The opposition within the Church to trial by ordeal5 which dates from the days of Agobard, bishop of Lyons (d. 840), was particularly constant at Rome. Remoter provinces, however, were faced by a more primitive populace. Regino of Prüm (c. 906) admitted the ordeal into his work on canon law, and so did Burchard of Worms later still (1008-12), who was so dismayed at the prevalence of perjury, that the ordeal seemed to him preferable to the oath as a mode of trial.6 A century later still, in 1116, Ypres received a charter abolishing both ordeals and trial by battle.7 It was yet another century before reform reached England when Innocent III in the Fourth Lateran Council (1215) forbade clergy from performing any religious ceremonies in connection with ordeals. This, of course, robbed the ordeal of all religious sanction, Edition: current; Page: [119] and to all intents and purposes abolished it as a regular means of trial (although it seems that in some localities it still persisted with the connivance of disobedient clergy). Henry III’s government immediately recognised the decree, and appreciated the extremely difficult position which it created, for the only remaining method of trying suspected criminals had been forbidden by the Church. A writ to the Justices in Eyre was therefore issued in 1219 giving temporary instructions how to proceed until further order was taken. It reads as follows:

“The King to his beloved and faithful . . . Justices Itinerant . . . greeting: Because it was in doubt and not definitely settled before the beginning of your eyre, with what trial those are to be judged who are accused of robbery, murder, arson, and similar crimes, since the trial by fire and water (the ordeal) has been prohibited by the Roman Church, it has been provided by our Council that, at present, in this eyre of yours, it shall be done thus with those accused of excesses of this kind; to wit, that those who are accused of the aforesaid greater crimes, and of whom suspicion is held that they are guilty of that whereof they are accused, of whom also, in case they were permitted to abjure the realm, there would still be suspicion that afterwards they would do evil, they shall be kept in our prison and safeguarded, yet so that they do not incur danger of life or limb on our account. But those who are accused of medium crimes, and to whom would be assigned the ordeal by fire or water if it had not been prohibited, and of whom, if they should abjure the realm there would be no suspicion of their doing evil afterwards, they may abjure our realm. But those who are accused of lesser crimes, and of whom there would be no suspicion of evil, let them find safe and sure pledges of fidelity and of keeping our peace, and then they may be released in our land. . . . We have left to your discretion the observance of this aforesaid order . . . according to your own discretion and conscience.”1

From this writ it will be seen that the justices were to be guided entirely by suspicion, and were to reach their conclusions as to the reasonableness of that suspicion solely from their own discretion. A rough scale was recommended whereby those suspected of greater crimes were to be imprisoned instead of suffering judgment of life or limb (as would have been the case if they could have been regularly convicted); those suspected of medium crimes were to be banished; lesser crimes were leniently treated, the suspect being simply bound over. This was only meant to be temporary, and obviously could be nothing more, for the whole compromise was based upon the fallacy that a half-proof of guilt was equivalent to a proof of half-guilt. The Crown, however, seems never to have given any further guidance to its justices, at least as far as the available sources show. The Church had abolished the one lawful means of trial, and the only suggestion which the Crown had made was a false and unworkable compromise.

The problem was therefore left to be solved in a way typical of English law—the justices were to make such experiments as they saw fit and gradually feel their way towards a solution.

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6.: The jury as a new mode of trial

EVOLUTION OF THE PETTY JURY

Various devices which they tried have been traced with some success through the rolls. Even before the crisis of 1219 occasional cases are to be found of the presentment juries giving what has been called a “medial judgment”, that is to say, declaring what ordeal ought to be assigned. Again, a jury might be summoned to declare whether an appeal was brought “maliciously out of hate and spite” (de odio et atia). This issue was very frequently introduced by appellees who had purchased this concession from the Crown, and in fact came to be really conclusive as to the main question. It was, moreover, a first step in the direction of a criminal trial by jury, for after some years of hesitation it was realised that if a jury could by its verdict declare that an appeal was brought maliciously, there was no valid reason why it should not answer the straight question whether the prisoner was guilty or innocent.1 We soon find that this last step was taken. It must be remembered that all these proceedings took place in the course of eyres in the early years of the thirteenth century, when that institution was in its most vigorous period. On such an occasion the King’s justices had before them a very considerable number of jurors making presentments from vills and hundreds, from boroughs and the county itself. A presentment would be made by the representatives of one of these vills or hundreds,2 and in order to get a final verdict on the guilt or innocence of the prisoner the justices hit upon the device of associating with the presenting jury the juries of the four neighbouring vills; “afforced” in this way, the larger body then proceeded to answer the question whether the prisoner was guilty of the crime for which he had been indicted.

At first the judges exercised a good deal of discretion in making up the trial jury;3 at times they did not even trouble to add any further jurors at all, but merely inquired of the presenting jury whether the prisoner was guilty. At other times we find a very large body of jurors associated together as a trial jury—in one case we even find a jury of eighty-four persons. It seems, however, that in the early stages such a large body of jurors did not sit together, but was examined unit by unit, the verdict of the representatives from each of the different communities being taken separately. From the numerous verdicts so obtained (sometimes contradictory4 and sometimes expressed in terms of hesitation) Edition: current; Page: [121] the court formed its own conclusion and proceeded to judgment accordingly. Nor can we always say that these composite juries are giving verdicts in the modern sense of the word, for at times they merely provide the court with material upon which the court itself bases its finding of guilty or not guilty.

AN EXAMPLE OF THE NEW CRIMINAL PROCEDURE

In order to illustrate the old and the new procedures the following case is translated in full, since it contains numerous points of interest. It occured in 1220 immediately after the writ mentioned above. Since Henry III was under age there was no court of king’s bench in regular session; hence, although it was a criminal case, it seems to have been heard in the court of common pleas upon a writ of false judgment which enabled royal courts to review the judgments of seignorial courts, although at a later stage of the proceedings the king’s council (representing the king’s bench during the minority) took part in forming the decision. The text from the plea roll is printed in Maitland’s Select Pleas of the Crown (Selden Society), no. 192.1

“Philip the son of Hervy, Robert the son of Humphrey, Henry the son of Andrew, and William the son of Richard, being four free men of the court of the Earl of Brittany in Cheshunt, and summoned to make record of a battle waged2 in his court between Hamo of More, appellant, and Elias Piggun, appellee, concerning a stolen horse for which Hamo appeals, come and record that:

“Hamo de la Mare complained in the Earl’s court that Philip le King stole his mare in his common pasture wickedly, feloniously and in larceny in the peace of God and in the peace of his lord the Earl; and this he offered to prove by his body as the court shall award for one hour of the day.

“And Philip came and defended the wickedness, the felony and the larceny, and said that he had a warrantor thereof, that is to say, one Edward, and that he would produce him at the hour; and a day was given him to produce Edward. After making three essoins,3 Philip himself came and produced Edward his warrantor, and Edward entered into the warranty of the mare.

“And when Hamo saw Edward seised of the mare, he spoke the same words against him as before, adding that he knew no other thief than this Edward whom he saw seised and who warranted the mare; and he offered to prove against him by his body.

“And Edward denied everything, word by word, and vouched Elias Piggun to warranty, whom he produced with him. And Elias took the mare and entered into warranty, and said that he sold the mare as his own chattel to Edward.

“When Hamo saw this Elias seised of the mare, he spoke against him saying he knew no other thief than this Elias whom he saw seised and who warranted against him, and that wickedly and in larceny and in the peace of God and the Earl he stole that mare (as before), and this he offered to prove against him, as the court should award, by his body.

“And Elias defended everything word by word, and offered to act against Hamo concerning that mare as his own chattel, as the court shall award.

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“It was awarded that Elias should give gage for defending himself, and Hamo gage to deraign.

“And Hamo says that in part they record well, and in another part too little, for when Elias was vouched to warranty and warranted the mare to Edward, he challenged him, Elias, as being a hired champion whom Edward brought in to become warrantor in return for money, whereof he produced sufficient suit; and that this is true, he offers to prove by one who heard and another who saw; and if this is not enough, he offers our lord the king one mark to have an inquest, for he says that he could not get this allowed him although he asked it.

“And the said four men on behalf of the Earl’s court say that the record is as they have recorded, and not as Hamo says; and they offer to deraign that it is as they say by the body of a certain free man of the court, or otherwise as the King’s court shall consider; or to defend that it is not as Hamo says, as the King’s court shall consider.

“And Elias being asked where he got that mare, says that she was given to him before the war [i.e. before 1215] together with some pigs at Cardiff in Wales by a man to whom he gave fencing lessons, that he had her for six weeks and brought her from Wales to this part of the country, and that he sold her to Edward for three shillings and a penny outside Waltham Cross. But he produces no suit of that sale, and admits that he and Edward were alone. So says Edward, and Edward also says that he had the mare for five years.

“Hamo says that the mare was foaled to him and that he still has her mother, and that she was stolen at Easter in [1219] the third year of king Henry, and of this he has sufficient suit.

“Elias being asked how he identifies the mare after so long a time, says by a mark, that is, by a slit in the ear.

“Eight men of the vill of Cheshunt and as many from the vill of Waltham, of Wormley and of Enfield are summoned to certify the justices. Thomas of Muleton, Peter of Nereford and the four knights with the record are pledges for having Elias Piggun on [7 March, 1220] Monday before mid-Lent. A day is given them to hear their judgement on Monday before mid-Lent when they are to come unarmed. On which day they came, and Elias is committed to the Fleet gaol by the king’s council. Hamo’s pledges to prosecute are William the Tanner of London, and John del Hale.

“The eight men of Waltham being sworn say upon their oath that according to their belief (for all the countryside say so) the mare was foaled to Hamo, was taken in the common of Cheshunt, and was found by Hamo in the plough of Philip le King, and that Edward gave her in marriage with his daughter to this Philip; and that after this plea was begun in the court of Cheshunt, Philip handed over the mare to Elias Picon the warrantor so that he could safely swear; and they say that in no other way was the mare Elias’ nor did he bring her into this part of the country. They further say that the mare worked in Philip’s plough for two years, so they think; and they rather think that Edward took her from the pasture by mistake and ignorance and not otherwise.

“The eight men of Cheshunt being sworn, say that they do not know whether she was foaled to Hamo, and rather think that she was not; they are sure that Edward gave her in marriage to Philip as aforesaid, but they do not think that Elias ever sold her to Edward; but they are sure that Elias said before all the parish of Cheshunt that he did this for God’s sake, and asked all men to pray for him as truly as true it was that he did this for God’s sake and not for money; and so they rather think that he did this for God’s sake and not for any other reason. They have not heard anything about the marriage portion of Edward’s daughter.

“The eight men of Wormley being sworn say that they do not know whether she was foaled to Hamo or not; but they are sure that Edward gave her with his daughter in marriage to Philip, and they believe that Edward bought her, but they Edition: current; Page: [123] do not know from whom; they do not believe that Elias ever sold her to Edward.

“The eight men of Enfield say upon their oath that they believe that the mare was Hamo’s and foaled to him, for everybody says so, and that Edward gave her as a marriage portion as said above; they are sure that Elias never sold her to Edward, but that he did this for money—for ten marks as they believe, of which he had five and five are owing to him; and some of them say that they think he did this so as to have Edward’s daughter in marriage as well as the money.

“By the king’s council: the Earl of Brittany shall regain his court as regards Hamo and Edward, who have licence to compromise; and let Elias have his judgement in the king’s court. It is awarded that he lose his foot; and be it known that the king’s council is dealing with him leniently for by law he deserved a greater punishment.”

It would be difficult to find one case which illustrated more points of mediaeval law than this one. Note the words of felony, and the vouching to warranty in the court below, and the way in which the appellee and his warrantors successively take seisin of the mare while the appellant recites his accusation; the method of recording pleas in courts which do not themselves bear record, and the possibility of verifying the record by battle;1 note also that Hamo offers the King one mark (13s. 4d.) to have an inquest, as alternative to the ancient production of one witness who heard and another who saw. The king’s court did not stand on technicalities. The issue of the truth or otherwise of the record brought from the court below is not even considered, and Pateshull (for it was Bracton’s hero who was on the bench2) went straight to the points at issue—the ownership of the mare and the fraud of Elias.

Hamo had purchased the privilege of having his charges investigated by a jury, and the roll shows us four juries of eight summoned from the four neighbouring vills. The proceedings, however, were singularly unlike a modern jury trial. It is true that the parties themselves were examined, but it was before the juries were summoned. The juries did not sit together, but returned four separate (and conflicting) reports—we can hardly call them verdicts. They say that they are sure of some things; others they “rather think” are true; some other statements they believe because “everybody says so”. They were not asked, and did not say, whether anyone was guilty or innocent. Nor were they witnesses, for none of them claimed to have direct knowledge of the happenings which they relate.

Such a proceeding can only be described as an inquisition. The court examined the parties, and examined thirty-two jurors, and upon the evidence so obtained, itself decided upon the guilt of Elias. If this system had become permanently established, we should have had a regular inquisitorial procedure, such as that described on the continent by Beaumanoir,3 with a judge deciding questions of fact as well as law, Edition: current; Page: [124] and examining parties and groups of local representatives whose function was not to state facts, nor to decide the question of guilt or innocence, but merely to retail the gossip of the countryside. Before the writ of 1219 the accused would have gone to his ordeal: but now the court finds him guilty on the unsworn statements of the parties, and on the juries’ sworn returns.1

TRIALS ON INDICTMENT

This was a logical development in cases of appeal, where the substitution of an inquest for battle or ordeal was frequently obtained. The case of indictment, however, presents a somewhat different situation, for the countryside has already spoken once. At times we find justices in eyre acting in a high-handed manner. Thus in 1221, in Warwickshire, they had before them Thomas de la Hethe, who was presented by the grand jury as an associate of a notorious felon named Howe Golightly; but Thomas refused to put himself on the country. Notwithstanding his refusal, the court declined to permit him any sort of ordeal, but realising the gravity of the situation they empanelled an impressive jury of twenty-four knights. The knights said he was guilty, and he was therefore hanged.2 Even a villein who refused jury trial might have this panel of twenty-four knights.3

So large and distinguished a trial jury clearly shows the court’s apprehension at compulsorily depriving a man of his right to trial by ordeal; but sometimes the situation was not so difficult. In this same year, 1221, an indictment found that the carcase of a stolen cow had been discovered in William’s shed. William did not claim any particular sort of trial, but said that the thing was put there by his lord who hoped that William would be convicted and so the lord get his land as an escheat for felony. The serjeant who arrested William stated that the lord’s wife had arranged for his arrest. In such a case the court simply asked the indictors for more information, and they related the whole story and so William was acquitted by the court, and the lord committed to gaol.4

In the case the court quickly detected the plot and merely needed confirmation. But what of cases of real doubt? It was these which caused the gravest difficulty after the abolition of the ordeals. Courts were naturally afraid to compel jury trial, and yet there seemed little else to do. If the case arose in a general eyre where a thousand or more jurymen and officials were present, it would be fairly easy to assemble a large collection of jurors (as was done by Pateshull in trying Elias), Edition: current; Page: [125] question them, and pronounce the prisoner guilty or not as a result. But if the proceedings were upon gaol delivery, for example, before non-professional judges with limited jurisdiction, that plan was less feasible. In most cases prisoners were persuaded to put themselves (more or less voluntarily) upon a jury. If they did not, there seemed no alternative but to keep them in prison, for if they were not convicted, they were still not acquitted.

THE INSCRUTABLE JURY

Under such circumstances, a jury was just a newer sort of ordeal. The judges, after the brief period of hesitation already mentioned, cease to play the part of inquisitors and no longer undertake to examine it or weigh its report; the jury states a simple verdict of guilty or not guilty and the court accepts it, as unquestioningly as it used to accept the pronouncements of the hot iron or the cold water. Since it is taken by consent there is no need to look too closely at the method by which the verdict was reached. At first, the jury was no more regarded as “rational” than the ordeals which it replaced, and just as one did not question the judgments of God as shown by the ordeal, so the verdict of a jury was equally inscrutable. It is but slowly that the jury was rationalised and regarded as a judicial body.

JURY TRIAL BECOMES COMPULSORY

The Crown did not feel too confident, however; the petty jury in criminal trials was a makeshift expedient and an innovation. Under the old law a prisoner could undoubtedly have been compelled to submit to the ordeal and to abide by any construction which the justices might place upon the outcome of it; but was it reasonable to compel a man to submit to trial by jury? Even the Crown felt that this was unreasonable, and it soon became customary to put the astonishing question to the prisoner whether he consented to trial by jury. If he refused to say the necessary words and “put himself upon the country” it seemed as though nothing further could be done. If such a prisoner could have spoken the language of modern constitutional law he would very likely have raised a doubt whether trial by jury in criminal cases was “due process of law”, for the time-honoured methods of trial were the ordeals, and the petty jury was a new-found device of very recent origin. Put in a quandary by a prisoner’s refusal to plead, a court could only exercise its discretion by adopting one or another of several high-handed courses. Sometimes, as we have already noted, it would cast the responsibility on a larger jury of twenty-four knights; alternatively, it might allow the prisoner to abjure the realm, even for homicide,1 while for lesser charges a prisoner could purchase (for 20s.) the privilege of merely finding sureties.2

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Towards the close of the century the Crown felt strong enough to impose jury trial by sheer force, and the Statute of Westminster I, c. 12 (1275), provided—

“that notorious felons who are openly of evil fame and who refuse to put themselves upon inquests of felony at the suit of the King1 before his justices, shall be remanded to a hard and strong prison as befits those who refuse to abide by the common law of the land; but this is not to be understood of persons who are taken upon light suspicion.”

This statute begins with a threat and concludes with an argument; could there be any better indication of the government’s difficulty in imposing trial by jury? It is surely noteworthy that in 1275 it was found expedient to declare by statute that the petty jury was now “the common law of the land” even if the rigours of that common law were to be confined to “notorious felons”. Conservatives perhaps found comfort in the proviso that jury trial or its painful alternative was not to extend to those whose reputation was not too bad. As is well known, the words “prison forte et dure” by some unaccountable means became transformed into “peine forte et dure”, and finally into a form of torture which, by the sixteenth century, took the barbarous form of placing the accused between two boards and piling weights upon him until he accepted trial by jury or expired. Felons whose guilt was obvious sometimes heroically chose to die in this manner rather than plead, be convicted and hanged, for a prisoner who died under peine forte et dure had never been tried and never convicted, and consequently his goods and chattels could not be forfeited to the Crown. It was abolished in 1772.2

RATIONALISATION OF JURY TRIAL

By the middle of the thirteenth century, moreover, the justices had finally chosen the simpler procedure. Instead of taking separate verdicts from numerous vills and hundreds, they selected a petty jury of twelve from among the numerous jurors present in court, and took the verdict of these twelve. It regularly happened that at least some of these twelve had also been members of the presenting jury, for it must be remembered that the whole principle of jury trial was to get information useful to the Crown from those people most likely to have it—the principle of the ancient inquisition. It is at this point that we first find signs of a rational approach to jury trial. The indictors were under some pressure to Edition: current; Page: [127] maintain their accusation and a subsequent acquittal occasionally landed the indictors themselves in prison.1 It is therefore clear that a prisoner could not expect a disinterested verdict from a petty jury consisting wholly or partly of indictors. Those with sufficient court influence could obtain certain procedural favours. Thus, Prince Edward (afterwards Edward II) sent a letter in 1305 to Brabazon, J., on behalf of one of his friends who was indicted for murder, asking that he be tried by a fresh jury on which none of the indicting jurors were present.2 We sometimes find prisoners challenging petty jurors on the ground that they had sat on the grand jury—a challenge which shows that the petty jury is now regarded (by prisoners at least) as no longer representative of the countryside, but as a truly judicial body which should be free from fear and interest. Such challenges were unsuccessful. As late as 1341 the court refused to allow a petty juryman to be challenged on the ground that he had been a member of the presenting jury: “if the indictors be not there it is not good for the King”, it was said.3 The commons in parliament protested against the practice in 1341 and again in 1345,4 but not until 1352 did a statute allow challenge to be made on this ground.5

THE JURY AS REPRESENTATIVES

From this it will be seen that in its origin the jury is of a representative character; the basis of its composition in the early days, when its structure was determined by the vill or the hundred, was clearly the intention to make it representative of the community. Its object was either to present the suspicions of the countryside, or, in the case of a petty jury, to express its final opinion. Consequently, the jury as a whole must come from the county concerned, and some at least of them from the hundred where the fact lay.6 In civil cases these requirements were much modified by legislation,7 and finally abolished in 1705.8 They applied also to criminal cases, but by Lord Hale’s time it was no longer Edition: current; Page: [128] the practice to challenge a jury for lack of hundredors,1 as long as it came from the proper county.

The county requirement was less tractable, for procedure could only be conducted through a sheriff. Problems abounded, moreover. By some ancient oversight there were roads, bays, creeks and harbours in England, as late as 1816,2 which were not in any county; felonies committed there (like those on the high seas) could not be tried by jury until 1536 when a statute gave the crown power to appoint a county by commission.3 Further, in 1549 a statute explained that if A wounded B in one county, and B died in another, then A could not be tried, because a jury of the first county will know nothing of the death, and the jury of the second county will know nothing of the wounding.4 Likewise, a felon in one county may be hanged, but his accessory who received him in another cannot be tried because a jury there will not know of the conviction.5

The representative idea of the jury was wearing very thin now that some of its consequences were being abrogated by the acts of 1536, 1549 and others.6 Survivals lasted into the nineteenth century: pickpockets in stage-coaches could be tried in any county along the route only after 1826,7 and the completely rational view of jury trial finally triumphed in 1856 when a trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial.8 Its character was certainly not that of witnesses;9 it was indeed expected to speak of its own knowledge, but that does not necessarily mean that its knowledge must be as strictly first-hand as that of a modern witness. There is no trace of a requirement that jurymen should themselves have witnessed the events in question. Indeed, that would often be impossible, especially in property cases—such as occurred in 1222 when a jury had to find the terms of a verbal lease made in 1170.10 Bracton has introduced some confusion at this point. He was writing a very big book and had a tendency to fill in the gaps of native English law from other sources, and so there is always difficulty in distinguishing between Bracton as the expositor of contemporary practice and Bracton the Edition: current; Page: [129] idealiser and scholar of foreign learning. In one passage1 he gives us a list of challenges which can be used against jurymen, and seems to have imported the exceptions against witnesses which were available in canon law, and used them as challenges against jurors.2 However this may be, he is surely describing contemporary practice faithfully when he shows us how the justices will help the jury to express an uncertain verdict in more satisfactory form, adding:

“If the jurors are altogether ignorant about the fact and know nothing concerning the truth, let there be associated with them others who do know the truth. But if even thus the truth cannot be known, then it will be requisite to speak from belief and conscience at least.”

Clearly, therefore, the jury spoke as representative of the countryside rather than as a body of witnesses.

EARLY OPINION ABOUT THE JURY

Bracton seems to be fairly satisfied with the jury as an institution, but other writers of almost the same date confirm the impression conveyed by the statute which we have just quoted. The Mirror of Justices, which was a vigorous criticism of the administration of the law written about 1290, contains a violent attack on the jury.3 In those parts of France also, where the jury for a time took root, there were protests against it as oppressive.4

From the reign of Edward I onwards the function of the jury was slowly being judicially defined; questions of law began to be separated from questions of fact,5 and gradually unanimity was required—although for some time there were doubts whether a verdict by eleven jurors was not sufficient, in which case the twelfth might be committed to prison.6

In 1468 Fortescue gives us a picture of jury trial which is to all intents and purposes in modern form. By this date he is able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence Edition: current; Page: [130] to the jury, and witnesses are examined upon oath.1 A century later, Sir Thomas Smith gives a vivid account of a jury trial and shows not only the examination but also the cross-examination of witnesses in the presence of the judge, the parties, their counsel and the jury.2 Although this was becoming the practice, relics of the older order survived, and we have the perennial spectacle of trouble caused by casual reform which did not make a clean sweep of the past. Just as Fortescue harked back to an obsolete conception of the jury in saying that a man who volunteered to give evidence would be punished for maintenance (for he ought to have waited until the jury went to his house in the country to ask him what he knew3), so too, while Sir Thomas Smith was describing the jury as a purely judicial body, and statute was compelling the attendance of witnesses,4 jurors were still allowed to use their own knowledge in reaching a verdict,5 and might reach a verdict although no witnesses and no evidence had been produced.6

THE EARLY HISTORY SUMMARISED

From one common origin, therefore, we have derived several varieties of jury. On the criminal side the royal inquisition became the grand jury for presenting criminals, and when the older forms of trial ceased to function then a trial jury for indicted prisoners was assembled from the indictors and the neighbouring vills: simultaneously, many appellees avoided trial by battle by purchasing from the crown the privilege of a jury, and so we get the trial jury for felonies. On the civil side the royal inquisition became available to private litigants for the trial of right to real property, and the petty assizes, with the “grand assize”, were clearly the model for jury trial in writs of entry and other real actions. Somewhere between these two lines of development there lies the action of trespass. According to one view it derives from the appeals of felony; others trace it to the petty assizes. However that may be, jury trial almost immediately became normal in trespass, both for the trial of misdemeanours and of torts. In the end, trespass and its derivatives supplanted the old real actions (and also the old personal actions of debt, detinue, etc.) with the result that all the civil trial juries now in use Edition: current; Page: [131] descend directly from the jury in trespass, as likewise the juries for the trial of misdemeanours.

7.: Post-mediaeval problems

THE REVIEW OF VERDICTS

Even as Fortescue wrote, however, jury trial, both civil and criminal, had already entered upon its decline, and there were numerous complaints of the corruption and partiality of jurors. The heavy expense falling on jurors was evidently a problem. Jurors attending the eyre at Bedford in 1330 seem to have been paid out of a county rate levied for the purpose.1 Whether this was done elsewhere, and for other occasions, is not known. Wealthy litigants certainly seem to have felt it proper (perhaps even prudent) to contribute fairly handsomely to the expenses of jurors—and jurors had themselves to pay fees in an eyre.2 Surviving household accounts show that litigants incurred considerable expense in the matter of jurors,3 and it is obvious that the line between legitimate contributions to the expenses of a costly journey, and corrupt practices, was difficult to draw. It therefore became more and more necessary to devise means for reversing verdicts.

The only ancient method available was by attaint.4 This consisted in summoning a jury of twenty-four, and the proceedings were not merely a reconsideration of the facts in dispute, but also a criminal trial of the first jury for perjury. This was only logical at a time when every jury spoke out of its own knowledge of the facts involved in the case. Their function was to tell upon oath the facts which they knew; it was not their duty to act as impartial judges of evidence produced before them. If such jurymen returned a verdict which was demonstrably false, and in spite of their own better knowledge of the facts, then it was obvious that they had committed perjury and deserved the punishment provided for attainted juries:

“All of the first jury shall be committed to the King’s prison, their goods shall be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled, their meadows shall be plowed up and they themselves forever thenceforward be esteemed in the eye of the law infamous.”5

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Attaint first appears as a remedy against the false verdicts given by members of the “assizes” in actions of novel disseisin, mort d’ancestor and the like. In these actions the defendant had always been compelled to accept trial by assize, and so it was but reasonable that he should have a means of punishing untruthful jurors. In writs of right, on the other hand, it was the demandant who might be compelled (at the tenant’s choice) to submit to the “grand assize”. Here, too, the writ of attaint could be brought.1 In other cases, however, both civil and criminal, it was possible to argue that the parties had voluntarily (in form at least) put themselves upon a jury, and that since they had chosen this form of trial they were not entitled to any relief if it turned out unsatisfactorily. Attaint was extended by statute first to one action and then to another, and finally in 1361 to every action tried by jury;2 but never to criminal trials. In London, local legislation wisely reduced the penalty upon attaint.3 But as for the common law, Queen Elizabeth’s Secretary of State, Sir Thomas Smith, wrote in 1565:4

“Attaints be verie seldome put in use, partly because the gentlemen will not meete to slaunder and deface the honest yeomen their neighbours, so that of a long time they had rather paie a mean fine than to appeare and make the enquest. And in the meane time they will intreat so much as in them lyeth the parties to come to some composition and agreement among themselves, as lightly they do, except either the corruption of the enquest be too evident, or the one partie is too obstinate and headstrong. And if the gentlemen do appeare, gladlyer they will confirme the first sentence, for the causes which I have saide, than go against it. But if the corruption be too much evident, they will not sticke to attaint the first enquest: yet after the gentlemen have attainted the yeomen, if before the sentence be given by the Judge (which ordinarily for a time is differred) the parties be agreed, or one of them be dead, the attaint ceaseth.”

As the character of the jury slowly changed, the logic of the action of attaint became less apparent. As the middle ages proceed the custom grows of assisting the jury by producing evidence in court in their presence. From quite an early date the witnesses named in a deed, if still living, were summoned to sit with the jury (and it became a rule that if they did so, then the jury was immune from attaint);5 but gradually, first in one case and then in another, it became customary to examine other witnesses in the presence of the jury. As a result the jury speaks less and less out of its own knowledge and becomes instead a judge of Edition: current; Page: [133] the evidence placed before it. The situation in respect to attaint thus becomes very different. A jury may return an erroneous verdict as a result of inadequate or inaccurate evidence, or a misunderstanding of the true import of the evidence adduced; but such an error of judgment in making a wrong deduction from evidence which may have been conflicting, insufficient or improperly presented is surely not sufficient reason for the severe penalty provided in the old action of attaint. It is no longer a question (at least in many cases) of deliberate perjury, but only of a more or less excusable error of judgment. It is only natural to find, therefore, that the action of attaint falls into disuse, as the quotation from Sir Thomas Smith has shown. This, however, did not help the situation. The more the jury becomes a judge of facts which parties attempt to prove before them, the more room there is for honest mistake, more especially as there is practically no trace of a law of evidence at this period. In short, there was an increasing need of some machinery for revising the verdicts of petty juries—more especially in civil actions, which always received in the middle ages more careful attention than criminal matters. Occasionally we find an appeal to Parliament where even an attainting jury was alleged to be prejudiced.1

THE PUNISHMENT OF OBSTINATE JURORS

In the sixteenth century examples are to be found of various prerogative courts undertaking to punish jurymen who found verdicts manifestly against the evidence.2 In an age when political trials were becoming more frequent, it became a serious matter that verdicts could be set aside and jurors punished in courts which were really a disguised form of the Council. In Crompton’s treatise on the jurisdiction of courts (1594) we read:

“Note that the London jury which acquitted Sir Nicholas Throckmorton, Knight, about the first year of Queen Mary, of high treason, was called into the Star Chamber in October, 1544 (sic), forasmuch as the matter was held to have been sufficiently proved against him; and eight of them were there fined in great sums, at least five hundred pounds each, and remanded back to prison to dwell there until further order were taken for their punishment. The other four were released, because they submitted and confessed that they had offended in not considering the truth of the matter.

“See also eleven jurymen who acquitted one Hodie of felony before Sir Roger Manwood, Chief Baron, on circuit in Somersetshire, against obvious evidence, were fined in the Star Chamber and made to wear papers in Westminster Hall about 1580; and I saw them.

“Note that one G. wrote a letter to a juryman who was about to sit on a case Edition: current; Page: [134] between Lane and O. D., requesting him to follow his conscience according to the evidence; he was fined here twenty pounds because it was not his business, about 1585. Note this, that one ought not to meddle with any matter pending in suit which is not one’s own business.”1

Throckmorton’s prominent share in Wyatt’s rebellion put his guilt beyond the slightest question, but he was a protestant hero to the Londoners, and the jury’s verdict was purely political. From now onwards the jury enters on a new phase of its history, and for the next three centuries it will exercise its power of veto on the use of the criminal law against political offenders who have succeeded in obtaining popular sympathy.

BUSHEL’S CASE

A very famous case on this matter was Bushel’s Case2 in 1670, where Chief Justice Vaughan in his judgment defined the position and duties of the jury. Although he retained the ancient view that a jury may depend upon its own knowledge, yet he gave a larger place to their independence. He insisted upon the ancient law; in his opinion the jury was not bound to follow the direction of the court, for the very good reason that if they returned a wrong verdict it was the jurors who were punished by attaint, and not the judge who directed it. Every jury sat with the shadow of attaint overhanging it, and this was ample sanction. Acting, therefore, under so great a peril, the jury must be left completely free from directions by the bench and from any subsequent punishment in Star Chamber or elsewhere, with the sole exception of the ancient proceeding of attaint. In other words, there was just enough of the doctrine of attaint left to enable the court to say that there was adequate means of dealing with a dishonest jury, and therefore of declaring in general terms the jury’s right to independence. The judgment of Vaughan was very ingenious in its combination of anti-quarianism and logic. Under the circumstances these were no doubt proper weapons in the defence of juries against political interference. But Vaughan knew, as well as everybody else, that for practical purposes attaint was obsolete, and that his judgment therefore amounted to a declaration of the irresponsibility of the jury. However useful this might have been in certain types of political trial, it was obvious that it worked hardship in private litigation. The courts were well aware of this, and were already at work even before Bushel’s Case in search of some means of setting aside obviously unsatisfactory verdicts.

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NEW TRIALS

They began to devise rules under which a new trial could be ordered.1 The mediaeval law on the subject of new trials was not very promising. The only early grounds which they admitted were misconduct of the jurymen, such as eating and drinking before returning their verdict, and even then the verdict was not necessarily set aside.2 Where damages or costs awarded by a jury were manifestly too high or too low, the court would sometimes fix its own figure, in the fifteenth and sixteenth centuries, without ordering a new trial or a new inquiry of damages.3

The amount of discretion which jurors might exercise varied with the form of action. Thus in an action on the case in 1615 to recover damages which by covenant had been fixed at a certain rate, a jury saw fit to award only about half the sum due. Coke declared that “there may be divers reasons why in equity they ought not to give so much damage as this amount, for it seems here that the jurors are chancellors” in the matter of assessing damages, and entitled to use an uncontrolled discretion. He agreed, however, that if it had been an action of debt the plaintiff would have recovered in full.4 During the Commonwealth, there was the striking case of Wood v. Gunston in 1655, when the Upper Bench allowed a motion for a new trial when a jury had awarded unreasonably high damages in an action for slander (once again, an action on the case), against the direction of the court.5 There was certainly no authority for this; a Commonwealth precedent of course carried little weight after the Restoration, and it was a long time before juries lost their arbitrary power over damages.6

For a time the courts took refuge in the distinction between trials at nisi prius and trials at bar; the former being regarded as less solemn, the verdicts were liable to be set aside; but Lord Holt in Argent v. Darrell (1700)7 while admitting that new trials were often granted after verdicts at nisi prius, declared that “there never was a new trial after a trial at bar in ejectment”. By 1757 Lord Mansfield was able to say in Bright v. Eynon8 that new trials were frequently granted, although there Edition: current; Page: [136] is no trace of it in the books, because the old reports do not give any account of decisions upon motions. This fortunate omission no doubt assisted matters greatly, and it soon became easy to believe that the practice of granting new trials was established.1 Thus was a revolutionary reform quietly effected without leaving many traces in the books; as we have seen, the work was half done by 1700, and declared to be complete in 1757. It need hardly be said that all through mediaeval times down to our own day, a jury was always at liberty to find a special verdict by stating the facts (often at great length and drafted by counsel as an agreed statement of facts) as it found them, and leaving it to the court to determine whether this verdict was in law a determination for the plaintiff or the defendant.

From all this it is clear (in spite of Vaughan’s judgment in Bushel’s Case) that for practical purposes the jury depended very largely, if not entirely, upon the evidence placed before it in court. This was certainly true of the seventeenth century and probably true of a large part of the sixteenth century. The further question when jurors were excluded from using their own sources of information, is more difficult to answer. An indirect solution has been attempted, but the result is not conclusive.2 Even within the last hundred years expressions are to be found suggesting that, at least in criminal cases, a jury was entitled to make use of its (by now, very exiguous) “general knowledge”.3 However, the survival of a theory is not always reconcilable with contemporary facts, and the principle of Bushel’s Case was no doubt felt to be politically desirable without necessarily endorsing all of Vaughan’s reasoning—which even for his own day may have seemed (like some of his other views) somewhat artificial.

Juries, in fact, came to rely on evidence offered by parties, and it was this circumstance which made necessary the development of a law of evidence; this will be discussed at a later stage.4

CONSTITUTIONAL POSITION OF THE JURY

We have now traced in brief the history of local institutions in their judicial aspect, together with the points of contact between them and the central government. It is at these points of contact that we first find signs of the development of the jury. For quite a long time the machinery of the jury was the regular means of communication between royal officials and the local public. Nor was this merely in judicial affairs; administration, police and fiscal matters, were all likely to be conducted through some form or other of the jury. From these beginnings as an Edition: current; Page: [137] administrative machine for extorting truth on any matter of royal concern from a reluctant countryside, the jury soon acquired a representative character. This idea of the jury representing the public of a particular locality had enormous consequences in an age when representative institutions were rapidly developing.1 From the presenting jury of the hundred and the county it was a short step to the House of Commons in its most primitive aspect, which at first consisted of representatives from such local communities as the county and the borough, all sitting together at the King’s summons to hear and to do what he should command. An early meeting of Parliament must have resembled to some extent an enormous eyre; all the lords and notables of the land together with representatives from the local communities met together in the presence of the King or his justices for the transaction of all sorts of business, judicial, administrative and fiscal. The seventeenth-century pamphleteers had some grounds for regarding the Commons as the “Grand Inquest of the Nation”.2

As for the jury, this representative aspect served as the foundation for its later irresponsibility, which in turn created a situation of exceptional difficulty. On the one hand, ancient history and current convenience both insisted upon the necessity of the jury’s independence; a representative institution, be it a jury, a parliament or a congress, must necessarily have certain immunities if it is to do its duty, and within the broad limits set by the writ of attaint, juries were independent. On the other hand, slowly changing practice was altering the character of the jury by transforming it into a judge of facts; in this aspect of its work irresponsibility was out of place. The decisions of the judges themselves on matters of law were subject to proceedings in error; why, then, should the decisions of a jury on matters of fact be completely irreversible? Both functions were essentially the same, that is to say, an exercise of judgment, as Vaughan was keen enough to see in Bushel’s Case. It was inevitable therefore that the practice should arise of setting aside verdicts for erroneous conclusions as to facts, in the same way as decisions upon law could be reversed if they were erroneous. As far as purely private litigation is concerned, this was inevitable and entirely desirable.

The division between law and fact upset some of those ancient forms of the common law which had survived from an earlier age. The ordeals of fire or water or battle resulted in a decision of the general issue whether the accused was guilty or not guilty; no separation of law from fact could be imposed upon the judgment of God. The verdict of the jury necessarily occupied the same position. In time it became clear that the general issue in criminal pleadings could only be Edition: current; Page: [138] retained if some preliminary device were employed to separate the law from the facts. This became all the more necessary as the law—for example, of larceny—hardened into a logical, but technical dogma.1 The device adopted was for the judge to direct the jury, explaining to them what facts would constitute the crime laid in the indictment. In the light of this exposition the jury continued to give its general verdict. Some difficulty arose, however, in trials of a political character, for here the jury retained its old representative character to a marked degree, and there has been a natural feeling that here if anywhere the jury’s independence ought to be most jealously guarded. A remarkable illustration of the feeling that a jury is likely to be more independent (or at least more representative of national feeling) than a judge is to be seen in Fox’s Libel Act2 of 1792, which reduced the position of the bench in libel cases (which were frequently apt to have a political character) to a minimum by allowing the jury not only to find the facts but also to declare whether those facts in law amounted to a libel.3

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CHAPTER 5: THE ORIGINS OF THE CENTRAL COURTS

SUMMARY page
The Royal Household 139
The National Assembly 140
The Result of the Conquest 141
The Meaning of the wordCourt 142
The Anglo-Norman Curia Regis 143
The Travelling Court: Justices in Eyre 144
The Lines of Separation 146
The Oldest Off-shoot: the Exchequer 146
The Next Off-shoot: the Court of Common Pleas 147
The Court of King’s Bench 149
The Connection between King’s Bench and the Council 150
Council and Parliament 151
The Addition of the Commons 153
The Judicial System under Edward I 155
Factors in the Growth of the Common Law 156

So far we have discussed the local courts, both communal and seignorial, and the contacts which took place between them and the royal authority, and particularly the most important of these contacts, the jury. It now remains to sketch the rise of the central courts at Westminster.

THE ROYAL HOUSEHOLD

During the Anglo-Saxon age there was nothing which could be described as a central royal court of law, although there were certainly central royal institutions. Their formation is the product of two elements, the one being the royal household and the other the national assembly. It is to the royal household that we must look for the origins of the administrative machinery of the Anglo-Saxon monarchy. The principal household officers inevitably acquired political influence and took a part in public affairs. Similarly the group of clergy attached to the King’s chapel naturally formed the nucleus of a secretariat which in time will be called the Chancery. It was only natural that the King should surround himself with men whose advice he valued, frequently placing them in high positions in the household. The household therefore consisted not merely of the King’s domestic servants but also of men of an official class whose assistance was useful in the daily task of government.1 When there was added to them the body of King’s Edition: current; Page: [140] clerks there was all that was required for the day-to-day business of government. This system of household government survived long after the Anglo-Saxon times. The Norman kings systematised it; in the thirteenth century portions of it became separated from the household, and in the fourteenth century developed into independent offices of State closely resembling the modern civil service. But this machinery was still controlled by the household, and bitter constitutional struggles were constantly occurring as the nobility at large endeavoured to curb the activities of the household officials. The Exchequer, for example, at a very early date, had achieved a completely independent existence, and yet to the end of the fifteenth century the effective control of finance was in the hands of the household, working through the offices of the Wardrobe and the Chamber. So, too, the Chancery very soon became an independent office for the management of the Great Seal, and yet its policies were controlled either by the Council working through the Privy Seal office, or else by an inner group of household officials (especially the chamberlain of the household) working through the office of the Signet.1 The effective power wielded by the holders of the signet can be seen by the rapid rise to importance of the Secretary who was its official custodian. In the sixteenth century he becomes a “Secretary of State”, and at the present day English secretaries of state are created by the delivery of the signets, which are handed to them by the King himself as symbols of their office. The household, therefore, is not merely the original germ of our central institutions, but has continued all through the middle ages to occupy a central position of effective political control, even over those departments of state which in former times had separated from it.

THE NATIONAL ASSEMBLY

The second element in the growth of these institutions may be described as that of the national assembly. The household was adequate enough for the ordinary daily business, but from time to time questions arose which required the advice of a larger number of people representing more varied interests. The effective political public for a long time coincided with the small class of great nobles and great ecclesiastics. Matters of grave importance would naturally be discussed at a somewhat large meeting of the most notable men of the nation. There is no need to apply precise terms and definitions to such assemblies, or to seek for exact rules as to their competence. Still less is it appropriate to ask questions as to what matters must be done with the concurrence of such an assembly and what matters could be done without it. There was nothing in the Anglo-Saxon age, or for a long time afterwards, which could be described as a body of public law. Conferring with the magnates Edition: current; Page: [141] of the realm was not a legal necessity, but a dictate of political prudence. It was only natural that the Crown should take counsel upon grave matters with those magnates whose co-operation was necessary if a policy was to be carried out. When we speak, therefore, of the national assembly under the Anglo-Saxon kings—“Witan” as they called it—we must not expect to describe its composition and powers as if it were a modern congress or parliament. There were some persons who certainly expected to be summoned when important matters were on the table; the position of others was less definite and varied with circumstances; but in any case it would be misleading to speak of anyone having a right to attend. On the contrary, for many centuries attendance at assemblies and Parliaments was a burden rather than a privilege, and people considered themselves lucky if they could obtain the royal privilege of not being summoned to Parliaments. The national assembly, therefore, was not a body of fixed composition or definite powers. Sometimes it seems hardly larger than the household itself, while at others we find a very imposing array of nobles and prelates.

THE RESULT OF THE CONQUEST

It is after the Norman Conquest that these institutions take a more definite form. The household continues to be the real political centre, and beside it, or perhaps within it, there develops a small council consisting of clerks and minor officials who are continually at hand for the transaction of daily business. The national assembly, on the other hand, begins to take a different complexion. It was one of the main features of feudalism that a lord could demand counsel from his tenants, and that those tenants were legally bound to attend their lord upon demand and to sit as a court in order to give him advice, to pass legal judgment upon fellow tenants, and to grant financial and moral support to the lord. The old national assembly therefore became a court with comparatively definite powers, and a well-defined obligation of attendance. For the time being it is true that its business was principally what we may describe as feudal. But in the eleventh and twelfth centuries feudal matters were of first-rate importance. Feudal custom regulated the position of the Crown with respect to the great nobles, and therefore supplied the place of a body of public law. The King’s Court, therefore, is not merely the Anglo-Saxon consultative assembly, but also a body entrusted with the power of applying such constitutional law as then existed.

It was also a peculiarity of feudalism that these matters of public law—the prerogative of the Crown, the rights and duties of the baronage, the means of extraordinary taxation and so on—were intimately connected with land. From this it resulted, first, that the King’s Court had to pay special attention to the law of land upon which these public rights and duties were based, and secondly, that these matters of essentially public Edition: current; Page: [142] law came to be regarded from the point of view of private property law. Political rights and privileges, the powers of particular officers and the like were treated as if they were land—or at least incorporeal hereditaments, which mediaeval law hardly distinguished from land. In this way there grew up the habit of regarding political and constitutional rights as sharing the specially sacred character of private property. As long as the common law controlled political thought, this attitude of mind persisted. No doubt there were grave disadvantages in the feudal view which treated governmental powers as private property—for one thing, they were apt to be regarded as private resources to be exploited to the limit; yet, on the other hand, the English constitution and the common law itself owed a good deal of their stability and continuity to the fact that all the sanctity which attached to private property could be invoked to protect the liberty of the subject. It is only when the modern theory of the State appears after the Reformation and the Renaissance that this point of view is theoretically attacked. This does not mean to say, of course, that the Crown never violated the rights of private liberty and property; as we shall see, more than once encroachments were made upon privileges which were the property rights of local magnates. Nevertheless, the theory was universally admitted, and in times of stress played an important rôle. As late as the fifteenth century many important questions of public law, such as the relations of Crown and Parliament, the theory of taxation, and so on, were discussed entirely from the point of view of a real property lawyer.1 All this, therefore, was the direct result of the feudal character of the King’s Court as it appears after the Conquest.

THE MEANING OF THE WORD “COURT”

Before we discuss further the character and development of the King’s Court (which historians usually refer to by its old Latin style of the Curia Regis) it may be well to examine the various meanings of the word “court” or “curia”. The original sense of the word is the rectangular open space around which the mediaeval house was built; the usual plan was that of a hollow square of buildings, the inside space of which was called the court. The colleges at Oxford and Cambridge are all built upon this plan, which was originally that of the ordinary dwelling-house, and in Cambridge their interior spaces are still called courts. The next development is to extend the word “court” to the house itself, and many famous houses in England are still called courts—Hampton Court, for example. Then the word “court” can also be used of the household and personal attendants of a king or great noble. Upon certain festivals during the year kings and nobles were accustomed to gather around them a particularly large company, and this event, too, becomes known as a court; the word will serve furthermore to designate the persons who Edition: current; Page: [143] were present on such an occasion. At Christmas and Easter the Anglo-Norman kings held courts of this character. The word was also applied to those assemblies at which attendance was compulsory as a feudal duty, and thence by a natural transition to any assembly for the purpose of transacting important public business; the Bank of England is governed by a court, and the Commonwealth of Massachusetts by a General Court. Finally, the word “court” is particularly used of such assemblies when they are engaged in judicial business. In mediaeval usage the word “court” may bear any of these different meanings singly or in combination, and if mediaeval institutions are to be understood properly it must be remembered that a court might be at the same time legislative, judicial, deliberative, and even festive.

It was all the more easy to combine these different functions in one body because early courts were very different from modern ones. The central figure of a court to-day is the judge, but, as we shall see later,1 it required some time before English law developed this office. Feudal courts seem generally to have consisted not of judges but of a number of “suitors” with whom rested the decision. The lord of the court indeed presided in person or more usually by his steward, but the president was in no sense a judge as the word is understood to-day. Under the Norman kings, we have descriptions of trials where it plainly appears that the king himself demanded of his barons in the court to pronounce a judgment.2 His lords, as we have seen, had courts of their own. Like the royal courts, these seignorial courts could sometimes take a political appearance, and from time to time we find lords holding assemblies of tenants like little parliaments in order to obtain grants of money.3 The House of Lords when sitting as a criminal court preserved, at least in theory, this old conception of a court of many suitors who are judges, irrespective of their being professional lawyers, and exactly reproduced an old feudal court of barons who are judges, while the presiding officer (the steward of the lord—in this case the King’s Lord High Steward) is merely chairman.4

THE ANGLO-NORMAN CURIA REGIS

The court of the Anglo-Norman kings consisted, therefore, of the Anglo-Saxon Witan, which was essentially deliberative in character, radically transformed by the infusion of Norman ideas. There is a long and somewhat fruitless discussion as to whether the Norman Curia Regis is or is not the same institution as the Anglo-Saxon Witan; in this form the question can hardly be answered. It seems rather to have been the fact that the formless and indefinite Witan was so Edition: current; Page: [144] thoroughly transformed by the Norman kings that it is purely a matter of fancy whether one describes the product as a new institution or as a modification of the old one.

There are cases to be found where the Witan, under the Anglo-Saxon kings, exercised quasi-judicial functions; it is perfectly clear, however, that the Witan did not entertain the ambition of becoming a national court. The whole spirit of Anglo-Saxon law made for the maintenance of local institutions, and more than once we find laws prohibiting parties to appeal to the King unless there has been a grave default of justice in the regular courts. When judicial matters do appear before the King and the Witan they are apt to be treated as political disputes requiring a political solution by negotiation, compromise, and royal mediation rather than a strictly judicial treatment. With the Norman Conquest we begin to find the transformation of the deliberative Witan into the judicial court. The transformation was, of course, slow, and even after the conquest there are proceedings in the King’s Court of the more ancient type. Still, the feudal idea of a court of tenants-in-chief was sufficient to supply the model of a supreme royal court, and it was from that model that the judicial system of the common law later developed.

THE TRAVELLING COURT: JUSTICES IN EYRE

It was a feature of mediaeval life that the King and his court were constantly travelling through the length and breadth of the kingdom, and that in the course of these journeys a general supervision would be effected over the conduct of royal officers, the working of local institutions, the collection of revenue and the redress of grievances. It was only natural that the idea should be extended, and that kings should send out some trusted officer to conduct similar progresses through the country for the same general purposes. Charlemagne in the early ninth century had developed a regular system of such missi dominici,1 and very soon after the Conquest, as we have already seen,2 a similar device is found in England. At the head of this travelling group of officials were the Justiciars—and it must be remembered that their title does not imply that their duties were primarily judicial, but merely that they were the direct personal representatives of the King.3 The King’s Court was thus enabled to be in several places at once; besides the principal body, which was always in the presence of the King himself, there might be several groups of officials touring the country as Justices in Eyre, as they soon came to be called. In this way the custom and practice of the King’s Court was made more familiar by being spread Edition: current; Page: [145] over the country, and by being brought into contact with local institutions. During the reign of Henry II these Eyres are very frequent, and Bracton and his successors treat them as a separate judicial jurisdiction.1 The experiment was so successful that Philip Augustus soon set up a similar system in France.2 There can be no doubt that there was much important legislation effected (which is now largely lost) by means of instructions to the justices as they set out upon their Eyre.

Their jurisdiction varied; in the early years of Henry III they might be commissioned “ad omnia placita”, and then their impressive “general eyre” (as Maitland called it3) became in effect the court of common pleas on circuit, instead of at Westminster. These justices with their “roll of secrets” and their “book of death”4 undoubtedly struck terror into the country,5 but as their organisation became more refined they became more and more an engine of oppression. Technical errors in legal and administrative procedure, slight inaccuracies in matters of detail were made the excuse for fines upon the whole vill or county. In the thirteenth century Eyres were frequent6 and the financial yield considerable: in 1227 a judge reckoned a profit of 40 marks a day for the king, and in 1301 Edward I “caused justice to be done on malefactors” in order to recoup the expenses of twenty years of war, and thereby “amassed great treasure”.7 In the early fourteenth century we have a full report of an Eyre which visited Kent in 1313 from which every detail of its work can be traced.8 Already protests against general Eyres appear in Parliament and after the middle of the century Eyres ceased to be commissioned. For a time it seemed as if the new device of constant tours by the King’s Bench from the middle of the fourteenth century onwards might serve the same purposes as an eyre,9 but in the end it was seen that they were in fact no longer necessary, for (as we shall see in Edition: current; Page: [146] the next chapter) newer means were being developed which put local institutions under an even more effective control, while the rise of parliamentary taxation provided a more satisfactory source of revenue.

THE LINES OF SEPARATION

The King’s Court, however, still remained constantly at work in his presence, and the development of the jurisdiction of the Eyre did not seriously diminish the powers exercisable in the King’s Court proper. It soon became evident, however, that convenience required a certain amount of specialisation within the Curia Regis.1 It is curious to remark, however, that the divisions were not made along strictly functional lines; in the end a rough allocation of duties was made whereby finance went to the Exchequer, legislation to Parliament, judicature to the courts and executive duties to the Council, but this classification of powers was never very strictly carried out. Parliament and Exchequer both had considerable judicial business. The courts did a certain amount of administrative work, and the Council had a large share in judicature as well as in legislation. The development of these different bodies, therefore, was not dictated primarily by any idea of the classification, and still less of the separation, of powers. It seems rather that the growth of these new institutions was determined along lines of administrative procedure. Types of business of frequent occurrence would necessarily encourage the development of a routine, which would enable subordinate officials (if properly instructed in a well-planned procedure) to do the work in a regular, though somewhat mechanical way. The bulk of their duties consisted in following a preordained mode of practice, and it is only in exceptional cases that they would find it necessary to invoke the discretion of the whole of the King’s Court. We therefore find very soon the development of certain courses of administrative practice, and around these practices there naturally gathered a group of officials who were skilled in the conduct of them. It is such a group of officials, adept in a particular body of procedural rules, which forms the first beginnings of new departments or institutions. The reason for their existence and the key to their activities is therefore a body of administrative procedure rather than a theoretical analysis of the powers of government. In the course of time a number of such procedures appear, gather around them a little group of officials, and finally give rise to new institutions.

THE OLDEST OFF-SHOOT: THE EXCHEQUER

The first of these was the Exchequer, which represents the oldest routine of government. Its beginnings had been primitive.

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“Edward the Confessor kept his treasure in his bedroom so that the thief, who aspired to rob the national treasury, had to wait until the king took an after dinner nap before he could venture into the royal chamber, and extract from the king’s treasure chest some portion of its precious contents.”1

Within a century there was a well-organised department, and in the reign of Henry II the Exchequer, with its formal departmental seal, had become the first separate government department in Europe.2 About the year 1179 it was possible to write a very substantial treatise upon Exchequer procedure.3 That procedure was primarily designed to do the King’s book-keeping and to watch his financial interests, but it was inevitable that many other matters should also arise. In the Exchequer twice a year all the great officials of the realm sat together to supervise the whole of the financial machinery. At its head sat the Justiciar, and when that office became extinct he was replaced by the Treasurer; the Chancellor also attended and brought with him some of his clerks who issued process “from the Chancery in the Exchequer”. At the close of the twelfth century the Chancellor’s office had become so important in other directions that for the future he is only represented in the Exchequer by a deputy, the Chancellor of the Exchequer. With such a great array of high officials at the solemn meeting of the Exchequer, it was natural that any great difficulty could be immediately settled, for the highest authorities in the land were sitting around the table. In this way, a good deal of important government business of a general character was apt to take place on the occasion of a great Exchequer meeting, especially at Michaelmas term, when besides all the high officials there were also in attendance all the sheriffs who were present for the examination of their accounts.

In the first of these administrative routines, therefore, we see that a variety of functions were performed whose single bond of union was the fact that they arose in the course of one procedure, that of the Exchequer.

THE NEXT OFF-SHOOT: THE COURT OF COMMON PLEAS

We have already mentioned the very numerous Eyres which took place during Henry II’s reign. Indeed the popular complaint was that there were too many of them, and in 1178 we find a remarkable passage in a chronicler4 which tells us that—

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“While he was staying in England, the King enquired whether the justices whom he had set up in England had treated the people fairly; and when he learned that the country and the people were much aggrieved by the number of justices (for there were eighteen of them), by the advice of the wise men of his realm he chose five only, two clergy and three laymen, all of his personal household, and decreed that these five should hear all the complaints of the realm, and do right, and not depart from the King’s court but remain there to hear the people’s complaints. And if any question should arise among them which they could not solve, they were to bring it up in the royal hearing for determination according to the pleasure of the King and the wiser men of the realm.”

The current interpretation of this passage, first suggested by Maitland and later modified by Pike and Adams, is that in 1178 Henry II by a deliberate act established a new court, which in later times became known as the Court of Common Pleas. Adams1 insists that the powers of this court, like those of its descendant, the later Court of Common Pleas, were strictly limited, and that it was expressly debarred from exercising that wide discretion which was the privilege of the Curia Regis. The “limitations”, however, were not of the sort we would associate to-day with the expression “limited jurisdiction”. As Holdsworth points out, in criticising Adams’ view, the new court in fact entertained every sort of business (including occasional pleas of the crown).2 The situation seems best described as the effective, but informal, subordination of the new justices to the king and his court of “wiser” men, rather than limitation to a precise list of powers. Its foundation was suggested by the experience of the Justices in Eyre, and was designed to render available all the time the judicial advantages of the intermittent or occasional Eyre, while, on the other hand, the high-handed action of certain of those justices was to be prevented by subjecting the new court to the supervision of the king’s council and by confining it within the limits of a procedure which was soon to become comparatively strict. The result was to give the public access to royal justice which was no longer mingled with the financial functions of the Eyre. The fact that this body of judges was erected as a separate court3 was not allowed to stand in the way of practical convenience, however, and if for any reason it became desirable to move a case backwards and forwards between the newly erected court and the body which met around the king himself, then there was nothing to prevent such a course. This event of 1178 must not be regarded as a sudden creation of a new court by an act of legislation, but rather as the culmination of a number of earlier experiments,4 which all had the general characteristic of subjecting the Edition: current; Page: [149] itinerant justices to the limitations set out in their commissions or instructions.1

Maitland discerned signs in the middle of the twelfth century of an old oral and traditional formalism,2 which by the end of the century has developed into a written and authoritative formalism—the writ-system of the common law which Glanvill described in some detail; and, as Professor Baldwin remarks, such limitations are appropriate to the new body of 1178, and not to the Curia Regis itself.

“It must be understood that the so-called formulaic and restrictive procedure began, and could begin, only in the courts held by the royal commissioners—that is, first by the itinerant justices and then the central court established on similar lines.”3

It was a notable feature of the new arrangement of 1178 that the justices were to remain with the King; that necessarily meant perpetual perambulation. On the other hand, the “chief court”, capitalis curia, whose practice is the subject of Glanvill’s treatise (written soon after 1187), seems fairly fixed at Westminster. Professor Sayles expresses a doubt whether the five justices of 1178 are indeed the same institution as that which Glanvill described, and suggests that the latter may be “a different creation”. It may be; there were indeed many “creations”. The difficulty largely disappears when one remembers that these “creations” were casual, temporary expedients, with no similarity to a “creation” of a court by a modern act of parliament. The repetition of these expedients slowly resulted in an institution, and its settlement at Westminster naturally resulted from Henry II’s absence abroad, which made it impossible to stay with the king and at the same time to hear the complaints of the realm. A generation later Magna Carta was to fix the Court of Common Pleas permanently at Westminster.4 The second administrative routine to become an institution is therefore largely a judicial one, and, after a period of experiment in the Eyres, it finally developed into the Court of Common Pleas, or “The Bench” as the older books call it.

THE COURT OF KING’S BENCH

The five justices who at first constituted the new court were expressly subordinated to the magnates and wiser men to whom difficult cases Edition: current; Page: [150] were to be referred. For some years the highest law court consisted, therefore, of these greater and wiser men who were in constant attendance upon the King. It is a frequent recurrence in all this judicial and constitutional history that the group of advisers in the immediate presence of the King should exercise in his name a wide discretion, and that these powers should in no way be diminished by the successive developments of the Exchequer and the Court of Common Pleas. Just as the Exchequer had formed round the financial routine, and the Court of Common Pleas was to grow up with the common law forms of action, so the constant occupation of the King’s immediate advisers with matters referred to them from the Common Pleas, and also with matters particularly touching the King, gave rise to a new body of procedure, and soon to a new court—the Court of King’s Bench, or, in its full mediaeval title, “The Justices assigned for the holding of Pleas before the King himself”.1 Normally, such pleas would have been heard literally “before the King himself”, but that was impossible with an absentee King such as Richard I. The court coram rege appears under John, but vanishes when he goes to the continent. The minority of Henry III again made it impossible to speak of pleas coram rege, but by this time the need for such a jurisdiction was so great that it was determined by way of compromise to hold some pleas coram consilio, the rest being deferred until the King should come of age. Hence in its early days it is often impossible to distinguish these judicial proceedings before the King (Coram Rege) from proceedings before the Council, and the early rolls of the court sometimes contain miscellaneous acts of the Council. The procedures around which it finally developed were the correction of error in the Common Pleas, and the trial of those pleas of the Crown which were of exceptional concern to the King.2

There are rolls still in existence, bearing the proceedings of both branches of the Curia Regis, beginning in the year 1194; a separate series of common plea rolls (technically called de banco rolls) begins in the year 1234, and in 1237 a defendant in a plea coram rege is found objecting that the case ought to have been brought in the common pleas.3

THE CONNECTION BETWEEN KING’S BENCH AND THE COUNCIL

For a long time it was a striking feature of the court before the King himself (Coram Rege) that it was closely associated with the Council. Many magnates might attend its solemn sessions; for less important business a small group of officials was sufficient. Although the two procedures Edition: current; Page: [151] which we have mentioned very soon appear (jurisdiction in error from the Common Pleas, and the trial of the more important pleas in which the Crown was concerned), they are for a long time mingled with the political and administrative duties of the Council. In the end, these two procedures were both entrusted to a small group of professional justices who were specially commissioned “to hold pleas before the King himself”. In other words, the King’s Bench becomes a separate institution, early in the reign of Edward I. For long after that date, however, there still remained a close connection between the King’s Bench and the parent body. Just as in earlier times a piece of private litigation in the King’s Bench, which raised a difficult point as to whether trial by battle lay or not, was adjourned “because there were not enough members of the King’s Council present”,1 so “the recurrence of pleas before the King and his council, Coram Rege et consilio suo, in this manner, can hardly be said to be discontinued until the reign of Edward III”.2 In the reign of Edward I, therefore, although the King’s Bench had its own establishment, working its own procedure, and may therefore be regarded as a separate institution, there nevertheless existed a good deal of intimate contact both then and later between it and the Council.

COUNCIL AND PARLIAMENT

In the thirteenth century this central group of officials and advisers who remained constantly in the King’s presence was described by a variety of names; a chronicler will usually call it “the Council”; a law-writer such as Bracton, who is mainly interested in its judicial duties, will call it the King’s Court or Curia Regis. As for those occasional meetings when this body is enlarged by the addition of numerous magnates, the chroniclers will usually call them a “colloquy”, and such is at first the usual official term. In common speech, however, such meetings were often referred to as “parliaments”. For a time this word was popular rather than official; it could be used of any sort of conference or meeting; even a disorderly assembly could be called a parliament, and in 1267 Henry III forbade the assembly of parliaments or other meetings in breach of the peace. In early days, therefore, the word “parliament” does not mean an institution but an event.3 Any unusually large meeting of the King’s Council will be popularly described as a parliament. A variety of influences began to work in the direction of giving more definite shape to these occasional parliaments. As time goes on, the King’s Bench will become as closely confined within the Edition: current; Page: [152] common law forms of procedure as the Court of Common Pleas itself, and it will be necessary to provide some other means for the exercise of equity and discretion and for the handling of cases which fall outside of those limits. This task naturally fell to the Council, whose mission during a great part of the middle ages was to act as an extraordinary court of unlimited jurisdiction, both original and appellate.

These discretionary powers of the Council covered a wide variety of subjects. Some could be settled at the discretion of skilled official councillors, while others demanded the attention of a larger body of magnates; and so their work naturally falls into two groups—matters which could be handled by the Council continually attending the King, and matters upon which they preferred to take the advice of the magnates at large. An important discussion, whether of judicial matters or political might equally be called a parliament, whether it actually took place in the smaller Council or in the larger assembly surrounding it.

With the reign of Edward I we find a new series of rolls appear for the first time, and these are the Parliament Rolls.1 Much of the business on the early Parliament Rolls is of a judicial character, although not all of it is in the forms of the common law. By this time the King’s Bench had lost much of its early discretionary power and contented itself with working the common law system of writs and its own particular procedure; it was therefore Parliament which now undertook to wield some of the discretionary powers which the King’s Bench had resigned—and herein we see the origin of the appellate jurisdiction of the House of Lords. Indeed, in the fourteenth century a case might move backwards and forwards between the King’s Bench, the Council and a Parliament of the Council with the greatest ease.2 The judges of the King’s Bench were in frequent attendance, both at the continual Council and at Parliaments. But besides this common law business, the Council was continually receiving a large number of petitions from individuals, churches, cities, counties and others, which were of the utmost variety. Some simply prayed for relief which was already to be had in the regular law courts; others, if the Council approved them, were transferred to the law courts, and the Council’s endorsement served to supply any lack of jurisdiction which might otherwise have prevented them from giving a remedy; others merely demanded favours which the administration might grant or withhold, while others might raise very difficult questions upon which the Council would wish to take the advice of the magnates of the realm. Those petitions which the Council did not deal with Edition: current; Page: [153] alone were held over until one of the Parliaments, which were frequently held.

THE ADDITION OF THE COMMONS

At the same time a remarkable development was taking place which was to modify profoundly the political aspect of Parliament. The strong, centralised monarchy of the thirteenth century was never tired of devising means for keeping in closer contact with local institutions. The annual visits of the sheriffs to the Exchequer and the frequent visits of Justices in Eyre to the various counties were still not enough; what the Crown particularly desired was an independent check upon the activities of its local officers, and a means of treating directly with the people. Various experiments were therefore made in the course of the thirteenth century with this end in view. They were in fact simply an extension of machinery which had existed for many years. It was a familiar occurrence for every hundred, vill and borough to send representatives to the county court, where a general investigation would be made into local government and apparently even a vote of taxes might occasionally be made.1 Nothing was more simple than to extend this time-honoured system to the whole nation. Just as hundreds and vills appeared by representatives in the county court (more especially when the King’s Justices in Eyre were present) so it was possible to call upon the county courts (together with the more important boroughs) to send representatives to meet the King himself when he and his Council were holding a Parliament.2 Such representatives later on brought with them numerous grievances, which they laid before the Council in the form of petitions, and this accounts for a large number of petitions which appear upon the Parliament Rolls—to say nothing of many more which were never enrolled at all. By Edward I’s reign, therefore, a Parliament of the Council may consist of a number of elements. There may be a greater or less number of magnates and prelates; there may or may not be a collection of representatives of the various communities of the land (who will afterwards be called the Commons, or in French Communes); at the same time it was customary for the lower clergy also to be represented by proctors, and these (together with the prelates, who are also summoned to the parliament) will form the later convocation. But in the centre of all this, controlling and directing all the proceedings, is the King’s Council. It is the King’s Council which is the motive force in the Parliament; the lords, the commons and the clergy merely attend to answer the Council’s questions, to advise it upon points referred to them, and to present humble petitions for the redress of their grievances. It Edition: current; Page: [154] required a powerful monarchy to organise such an institution. It is a constant observation in the middle ages that it is only the strongest kings who can compel their subjects, be they lords or commons, to give them advice, to attend their courts, and to take part in the work of government. Centuries later Parliament will become an instrument, first in the hands of the lords and later of the commons, which can be turned against the King himself and his Council. But this is far in the future; Parliament was not intended to play that rôle when it first took rise. In its earliest days it was a sign of royal strength and not of royal weakness, and this can be seen from the fact that the weaker kings had great difficulty in collecting a Parliament at all.

The future of Parliament may be political, but its origin was legal and administrative. In its origin and throughout the middle ages it deserved its later title of the “High Court of Parliament”—and in this expression it must be remembered that the word “court” must be taken in the broadest mediaeval sense.

We have insisted that the real centre of Parliament in the middle ages was the King’s Council. Fleta expresses this idea when he says that “the king has his court in his council in his parliaments”,1 and even as late as the fifteenth century it is abundantly clear that the Council was still the moving force in Parliament; even at so late a date a chronicler will speak of a “Parliament of the Council”, and we constantly find official documents which say that “the King by the advice of his Council in Parliament” has taken certain action. Even at the present day the brilliant ceremonial with which the King opens Parliament bears witness to this fact. The proceedings take place in the House of Lords. The King on his throne is surrounded by the councillors standing on the steps of the throne; immediately in front are the judges (and in former times the law officers of the Crown); this little group of the King and his councillors and judges (who anciently were active members of his Council) is the core of the Parliament. At a greater distance are assembled the peers of the realm and the prelates, and so we see Fleta’s phrase visually expressed, “the King is in his Council in his Parliament”. Right at the bottom of the room is a bar, and outside of the bar are the latest additions to the constitution of Parliament, the Commons. They are always standing—the older pictures show them kneeling—and at their head is the Speaker. He derives his title from the fact that of all the Commons present the Speaker alone has the right of raising his voice in the Parliament. To safeguard both himself and the Commons in case he should speak erroneously on their behalf, he made a sort of protestation or petition at the opening of parliament. At first it is only Edition: current; Page: [155] a prayer that he may have permission to correct his mistakes if he should make any; later, in the reign of Henry VIII, he became more bold, and prayed for the allowance of the Commons’ privileges.1 This ceremonial faithfully reproduces the appearance of a Parliament of the early fourteenth century. Whatever deliberations the Commons or Lords may make among themselves are merely their private concern; the proceedings in Parliament take place when the Council is present, attended by the lords, and in those proceedings the Council plays a dominant part.

With the close of the middle ages the position of the judges in Parliament becomes less important. They attend upon ceremonial occasions, and give advice when called upon by the Crown or by the lords, but no longer take a regular part in its general business except for the purpose of handling certain types of petition, and soon this too becomes obsolete.

THE JUDICIAL SYSTEM UNDER EDWARD I

And so by the reign of Edward I we have all the elements, save one,2 of the present judicial system of England. There was the Bench, or Court of Common Pleas, where the common law forms of action were developed and where the bulk of the important litigation of the country took place (with the exception of the smaller matters which went before the local courts). Then there was the King’s Bench which had a jurisdiction in error from the Common Pleas, and an original jurisdiction over the pleas of the Crown of unusual importance; it was the proper place for state trials and for matters which closely concern the King. Above the King’s Bench, and working in close harmony with it, was the King’s Council, ready to supply from the reserves of royal discretion at its command any defects of jurisdiction which might occur in the lower courts, and to take the advice of a Parliament, if necessary, to resolve their doubts and remove their difficulties. In the Council, in Parliament, and to some extent in the King’s Bench, there was, therefore, an ample source of equity, discretion and extraordinary power to meet any emergency. At the same time the King’s financial interests were controlled by the Court of Exchequer, and difficult legal questions could be informally discussed in the Exchequer or in Council by a full meeting of all the available legal talent. As for the ordinary criminal jurisdiction, there were many local authorities with summary powers, which were supplemented by numerous visits of commissioners of gaol delivery (who delivered the gaols of prisoners committed for trial), and commissioners of oyer and terminer, who had wide powers of holding pleas of the Crown. Both these classes of commission were in constant use and their activities were recorded upon hundreds of rolls. At the same time certain types of common plea concerning land, called “assizes” Edition: current; Page: [156] which were of very frequent occurrence were also heard locally by travelling commissioners of assize, who only reserved points of special difficulty for discussion at Westminster in the Court of Common Pleas. All these were in existence in Edward I’s reign.

FACTORS IN THE GROWTH OF THE COMMON LAW

At this point, moreover, it is well to remember the striking passage in Maitland’s Constitutional History where he indicates six principles which combined to increase the jurisdiction of the royal courts. They are briefly these:1

(1) Under the Norman kings the Crown by its writ of right supplied the real or imaginary defects of justice in the feudal courts.

(2) Under Henry II it was established that no man need answer for his freehold without a royal writ unless he cared to.2

(3) Henry II also ordained that a defendant in certain pleas of land in the King’s Court could have jury trial (grand assize) instead of battle if he chose.

(4) The possessory assizes established by Henry II deliberately ignored the feudal courts and by their swiftness immediately became very popular.

(5) The idea of contempt was used very effectively. The King would issue a writ ordering a subject to do right and justice, and if he refused, he was guilty of contempt of the King’s writ. The defendant in a writ of debt, for example, not only denies his liability, but also denies tort and force in resisting the King’s command.

(6) The idea of the King’s peace was not only the basis of criminal jurisdiction, but could also be used to enlarge the civil jurisdiction of the King’s Court. This was effected through the action of trespass, which although criminal in form was constantly becoming more and more a civil action.

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CHAPTER 6: THE ELABORATION OF THE JUDICIAL SYSTEM: 1307-1509

SUMMARY page
The Position of the Courts 157
The Isolation of the Judges 157
Competition between Courts 159
The Exchequer of Pleas 159
The Exchequer Chamber, 1357 161
The Exchequer Chamber for Debate 162
King’s Bench and Trespass 163
The Common Law Side of Chancery 163
The Need for De-centralisation 165
The Nisi Prius System 165
Justices of the Peace 167
The Fate of the Local Courts 169

The last chapter has briefly told the beginning of a long story. When once the superior courts had come into existence there still remained the question whether they would continue upon the course which they had begun.

THE POSITION OF THE COURTS

Their subsequent history will show that much was to happen which would have astonished the statesmen of Henry II and Edward I. For example, a great characteristic of the early judicial system was its flexibility. Cases could move from court to court as occasion required: the lines of division between the different jurisdictions were not insurmountable; the King was in constant contact, through the council, with the judges, and his intervention was often to the advancement of justice, although at times no doubt it might be used by a weak monarch for personal ends. The judges themselves, closely co-operating with the council, exercised a good deal of discretion, and in many cases tempered law with equitable considerations. As the centuries passed, however, many changes came about. The courts gained some degree of independence of the Crown, but in doing so lost their discretionary powers. Their procedure became rigid and mechanical, unchangeable save by parliamentary statute. Reform, if it came at all, came from without.

THE ISOLATION OF THE JUDGES

We have already noticed the close connection which once existed between the courts and the council, and indeed with the King himself. The result, while it lasted, was that the judges normally exercised a Edition: current; Page: [158] considerable amount of discretion, particularly in procedural matters. It must not be rashly assumed that the further back we go the more rigid was the law. On the contrary, investigation has shown the wide discretion which was allowed to the courts both in the twelfth and thirteenth centuries.1 It is not until the middle of the fourteenth century that this discretion begins to disappear. A great step in this development was the solemn enactment of the Statute of Northampton2 in 1328 which declared that no royal command under the Great or the Smaller Seal shall disturb the course of the common law, and that if such a command is issued, the judges shall ignore it. Slowly but steadily the judges ventured to enforce the plain words of this important act,3 and so to assume the detached position which is typical of most modern judiciaries.

The remarkable political crisis4 of 1340 took matters a stage further by showing the unseemliness of treating judges as though they were politicians, and about the years 1340 to 1350 we find several expressions from the bench and bar which seem to indicate that the position of the courts is changing. In cases where we know that discretion was once exercised we now find it refused. Instead of bending the rules of procedure to the broad requirements of justice, we find the courts declaring that “we will not and cannot change ancient usages”; “statutes are to be taken strictly”; an innocent man might lie indefinitely in prison, or a creditor might be deprived of his remedy through the manipulation of procedural rules, and all the court will say is that “we can do nothing without a statute”.5 In short, the judges attempted to cast upon parliament the responsibility for future legal reform.

Similarly, there were difficult cases where the judges could not make up their minds—to the great delay of litigants. Already, in theory, Fleta had attributed to parliament the duty of resolving judicial doubts,6 and in 1311 the Ordinances, c. 29, required the termination of such cases in parliament—instances occur of the ordinance being applied.7

In the next reign Parliament passed a curious statute in 1340 giving powers to commissioners (evidently non-lawyers) to decide cases which had been delayed because the judges found them too difficult.8 So Edition: current; Page: [159] public an expression of distrust in the judiciary could only have the effect of making the benches retire still more strictly into the seclusion of their courts and the technicalities of their procedure. Moreover, if the five could not agree, the lords at large undertook to settle the matter—and from this date the lords assert their ascendancy, and treat the judges (and the councillors) as merely assistants in their house.1

The common law is therefore beginning to retire to a definite and limited field, resigns its flexibility and declines to be drawn into attempts to remove its own defects: that will henceforth be the province of Parliament. Later still, when Parliament fails to keep pace with the needs of litigants, it will be the Chancellor who will take up the task. This loss is compensated to some extent by the growing independence of the judges. Less and less often do we find them at the council board or giving effect to royal commands from the bench.

COMPETITION BETWEEN COURTS

The formulary system, which once had been a labour-saving device, developed into the system of forms of action which finally stunted and crippled the common law to such an extent that an entirely new system or prerogative courts of equity was needed. Even within the common law itself, the formulaic system was recognised as mischievous, for the common law courts began to compete with one another for business, piling fiction upon fiction in an endeavour to escape from the heavy burden of their history. Most strange of all, the common law courts found themselves champions of the popular cause against the Crown in the seventeenth century, although just a century before they had been loudly condemned by the public for their weakness, their slowness and their costliness.

The Restoration opened a long period of comparative quiescence during which the common law courts remained unchanged until the nineteenth century, thanks to the restoration of equity, which alone made tolerable so archaic a system.

THE EXCHEQUER OF PLEAS

Perhaps the earliest example of competition between common law courts comes from the Exchequer. We have already mentioned the rise of this institution as an accounting organisation, and as an assembly of high officials who combined the audit of the royal accounts with the discussion of related problems as they arose.2 The development of a law court out of this purely administrative procedure can be clearly traced in the various series of rolls produced in the Exchequer.3 In Edition: current; Page: [160] its early days the Exchequer kept but one roll, the great roll of the pipe which contained detailed accounts. In the course of business there arose many matters which could not be immediately settled, and so such matters were removed from the pipe roll and reserved for further consideration, being entered on a new series of Memoranda Rolls created for the purpose. There are hints of such rolls under Henry II;1 they are known to have existed under Richard I, and one has survived for the first year of John (1199-1200).2 Some of the matters on these rolls called for judicial treatment, and so in time we find a further specialisation in the rolls. In 1220 we have a separate roll of pleas concerning the King’s Jews,3 and in 1236 we have the first roll of the Exchequer of Pleas.4 The revenue department had become a revenue court. This court, moreover, was essentially a common law court; it used the common law procedure, although in a more stringent form, and apart from revenue cases which formed the bulk of its work, it did useful service in permitting subjects to bring proceedings against officials (especially sheriffs) who had acted irregularly. Such a court was likely to win public sympathy, and although its rolls are not very bulky it seems to have been active.

In 1300 we find a statutory provision that no common pleas shall be heard in the Exchequer,5 and this is the first great attempt by one common law court to prevent another from competing with it. The Exchequer was in a position to offer substantial advantages to plaintiffs who resorted to it, since Exchequer process extended to Wales and the palatinates (where king’s bench and common pleas had no jurisdiction)6, simple contract debts could be recovered from executors,7 and wager of law did not lie. This latter rule raised protests in some quarters, and in 1376 wager of law was authorised by parliament (save where the King was party) in the Exchequer, on the ground that jury trial was to the great damage of the people and the impoverishment of the jurors, and caused much delay.8

There were several grounds upon which the Exchequer could hear “common pleas”—meaning thereby non-revenue cases. In the first place, the officials of the Exchequer and their servants were privileged: as plaintiffs they could compel their adversaries to answer in the Exchequer court, and as defendants they could refuse to answer save in the Exchequer. Secondly, merchants are frequent litigants in the Edition: current; Page: [161] Exchequer,1 and in some cases at least, the affairs of merchants, friars and other favoured persons were treated there because the King had so ordered.2 Furthermore, parties could voluntarily enrol recognisances of debt in the Exchequer records, and if they did so, then any resulting litigation would take place in the Exchequer. Then, too, many decedents died in debt to the Crown, with the result that executors and administrators were constantly before the court. Finally, any Crown debtor could invoke the Crown’s very effective machinery against his own debtors, by means of the allegation that by their remissness he was less able to discharge his own debt to the King. This principle is as old as the Dialogue of the Exchequer.3 The earliest cases show the King as co-plaintiff with his debtor against the debtor’s debtor;4 forms vary somewhat, but when the action succeeded, the debt was paid to the Exchequer and not to the plaintiff. There is no trace of the famous writ of Quominus under Henry III or Edward I,5 and the first example so far known is said to be in 1326.6

According to Blackstone7 the allegation of indebtedness to the King contained in the writ of Quominus was treated in his day as a fiction; curiously enough Coke and Hale are silent on this development, and so is Burton (writing in 1791). It is impossible to say when this fiction began.8

THE EXCHEQUER CHAMBER, 1357

There was one issue, however, upon which the Exchequer won a clear victory. The Court of King’s Bench, which from its earliest days had jurisdiction in error from the Court of Common Pleas, in 1338 claimed the right to hear errors from the Court of Exchequer. To this the barons strongly objected and showed from their records that the only jurisdiction in error above them was in the King, who might issue a special commission ad hoc. It was becoming evident, however, that Edition: current; Page: [162] this traditional method was unsatisfactory, and the commons in parliament in 1348 urged the claims of the King’s Bench, but the king would only agree to a commission of errors, composed of the Chancellor, Treasurer and two Justices.1 Eventually, in 1357, a statute2 erected a new court to hear errors in the Exchequer, which was to sit in “any council room nigh the exchequer”—hence its name, “Exchequer Chamber”. It was composed of two great officers of state, the Chancellor and the Treasurer, who alone were the judges, but they could call upon the justices of the common law courts as assessors, and could put questions to the barons of the Exchequer. Such a system was clearly unworkable, for as a matter of practical politics it was rarely possible to get two such great men together at any stated date. The commons again prayed for legislation which would give the King’s Bench the right to hear error from the Exchequer, but in vain.3 The barons stood on their statute and let their court decline rather than submit to the King’s Bench. Three hundred years later attempts were still being made to render this old statutory court more useful in an age when the Chancellor was too busy and when there was frequently no Treasurer at all.4

THE EXCHEQUER CHAMBER FOR DEBATE

At all times judges of the common law courts have discussed important and difficult cases in meetings consisting of all the judges of both Benches, and sometimes the Lord Chancellor and the barons of the Exchequer.5 Sometimes the Council is also mentioned, and the judgment proceeded from this impressive assembly as a whole.6 The several benches might sit together on other occasions to debate legal points referred to them by the Crown. At the beginning of the fifteenth century such meetings were often in the “Exchequer Chamber” and the courts slowly developed the practice of themselves referring difficult cases to the Exchequer chamber. On such occasions a decision was reached by the judges and serjeants together,7 but the judgment was formally pronounced in the Edition: current; Page: [163] court where the case originated. Moreover, an argument in the Exchequer chamber could take place only at the instance of the judges hearing the case; it could not be demanded by either party. There might be less formal meetings at Serjeants’ Inn, where the judges and serjeants lodged together during term time, and obviously such talks are simply the usual professional conversation of men engaged in a common task; they are not in any sense the proceedings of a court.

The system had merits which unfortunately were not conserved. While it lasted it did much to take the place of a system of appellate courts. Instead of burdening litigants with the expense and delay of taking a case through several courts, in each of which a few judges gave perhaps hurried decisions, under this system the case went at once for discussion by all the judges of all the courts sitting together in order to reach a definitive ruling, which very naturally was accepted with the greatest respect as settling the point.

KING’S BENCH AND TRESPASS

Defeated in its attempt to assert a jurisdiction in error over the Exchequer, the King’s Bench next engaged in a conflict with the Court of Common Pleas. Although the King’s Bench had always tried aggravated trespasses, and those where royal interests were involved, yet the ordinary run of trespass cases had always been in the Common Pleas. In 1372 the commons complained that the clerks of the King’s Bench (apparently by arrangement with the Chancery) had contrived to prevent writs of trespass being made returnable in the Common Pleas, and procured them to be directed instead to the King’s Bench. This caused hardship, as men of wealth already had to keep standing attorneys in the Common Pleas for their general affairs, and the King’s Bench was still a perambulating body. The reply to the complaint seems to indicate that once again the King’s Bench was defeated.1

THE COMMON LAW SIDE OF CHANCERY

We have said nothing so far of the Chancery.2 Its functions were in fact almost entirely secretarial in its early days, and it is not until about 1307 that we can say that it has become an independent office free from household control.3 Indeed, “office” was thought to be the most suitable word for the Chancery, as we can see from Fleta (c. 1290) who refrains from using the word “court” in this connection.4

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The Chancellor was often the King’s principal adviser in political matters, but his staff was a highly specialised body of clerks. The duties of many of them were partly mechanical—copies of all important documents which passed the Great Seal were prepared upon the voluminous rolls which survive in thousands in the Public Records Office. They had also the duty of drafting and writing the original writs which were so vital to the conduct of litigation. In the early thirteenth century it would seem that they had a part to play in the formation of the common law, for it was they who sanctioned the numerous variants upon traditional forms which applicants urged them to make, and thus indirectly extended the scope of the common law. Such powers, however, were peculiar to the early formative period of the century. By its close it was already well established that the issue of a writ from the Chancery was no guarantee that the writ was valid at common law, for the judges asserted their right to quash writs which they considered unsuitable. Hence the real control over the issue of writs soon passed to the common law courts, for it was they who had the last word in sustaining or quashing the writs brought before them in litigation. The Chancery therefore exerted little influence over the creation of new writs after the thirteenth century, and the “register of writs” never became an official Chancery collection.1 It soon becomes evident that the parties themselves, or their legal advisers, draft the writs they desire, get them engrossed and sealed in the Chancery, and then support them by such arguments as they can when the time comes to plead them in the common law courts. One thing seems certain, and that is that the business of issuing writs was not the origin of either the common law or the equity jurisdiction of the Chancellor.2

Of much greater importance were the powers connected with the feudal rights of the Crown. When a tenant-in-chief died, a writ issued from Chancery to inquire by means of a jury into the lands of the late tenant and to ascertain the Crown’s rights to primer seisin, relief, the wardship of his heir if an infant, and to arrange for the dower (and sometimes the re-marriage) of his widow. Interested parties could intervene, and so a good deal of litigation arose under the head of “traverses of offices”, as these proceedings were called. Similarly, when the Crown made grants of lands or offices by letters patent, persons whose rights were affected could bring proceedings to repeal them.3 Edition: current; Page: [165] It also had important jurisdiction in petitions of right and monstrans de droit. The judges were so frequently engaged upon business of this sort in the Chancery that the Commons complained in Parliament that the courts of common law suffered considerable delays.1 These powers, which are in frequent use from the reign of Edward III onwards, are clearly derived from the administrative functions of the office, and can be compared with those of the common law side of the Exchequer with which they were in some cases concurrent. It is a difficult question how far the common law jurisdiction was an origin of the equitable jurisdiction, which may have had, in the main, a different history.2

THE NEED FOR DE-CENTRALISATION

The “impoverishment of the jurors” and the “ruin of the country” by jury trial was a real problem. When Henry II instituted the petty assizes he seems to have made the requirement that as far as possible the assize of twelve should meet in the county where the land lay—in the county where the assizemen resided. With the use of the jury in the Court of Common Pleas a similar requirement soon arose for the jury to come from the county where the cause of action lay. While the judges of the Bench were continually touring with the King, there was a fair chance of juries being taken in or near their own counties, but with the tendency for the Bench to stay in one place it was becoming more and more necessary for the jury to come to the court, instead of the court travelling about and taking the juries locally. The Great Charter3 settled the most pressing part of the question by enacting that most of the assizes (which were then the most frequently used of the common law actions) must be taken in the county where the land lay, and as the assizemen had to be neighbours from that same county, they did not have to travel very far. Hence the Crown sent commissioners at regular intervals to take the assizes in the counties.

THE NISI PRIUS SYSTEM

As for the Bench in the reign of King John, it was sufficiently important for the Charter to enact that it should no longer travel but sit permanently in some fixed place. This was perhaps convenient for suitors, but as the business of the court increased it was a grave hardship to bring jurors from the remoter parts of England to Westminster; indeed, in many cases it was utterly impossible. The solution of the problem was all the more difficult now that the Common Pleas (and for Edition: current; Page: [166] that matter, the Exchequer) were fixed at Westminster.1 The verbal altercation which resulted in the formulation of irrevocable pleadings had to take place (at this date) in court before the judges, who supervised the process and helped the parties to reach a suitable issue. Once the issue was reached, however, it was a simple business to put the issue to the jury and record their verdict. This second process, it was realised, need not take place at Westminster. As early as 1196 parties were given a day at Westminster “nisi justiciarii interim veniant” in Norfolk,2 and in the early years of Henry III justices in eyre would sometimes order juries to be taken locally (instead of before themselves) in order to save trouble to all concerned,3 and would likewise order the verdicts of locally taken inquests to be returned if necessary to Westminster.4 This separation of fact-finding from the rest of legal procedure gave the solution to the problem, and so legislation beginning with Edward I in the Statute of Westminster II, c. 30 (1285) slowly built up the system of nisi prius, whereby actions which began at Westminster in the Court of Common Pleas, when once they had been pleaded to an issue, could be continued by taking the jury’s verdict in the county before justices of nisi prius, instead of compelling the jurymen to undertake a costly journey to Westminster as had formerly been the case. The rise of this system had the result that a great deal of jury work took place in the country and not in Westminster; such proceedings were rarely reported, for the compilers of the Year Books were most concerned with what went on at Westminster Hall, and so the whole procedure of putting evidence before a jury, charging it and taking its verdict is an obscure matter, for neither the reporters nor the rolls give us very much information.5 Of these two sources the rolls are perhaps the more promising for the early history of the law of evidence.

The commissioners of assize need not be justices (although the ywere frequently serjeants, and local knights had to sit with them); the commissioners of nisi prius, on the other hand, had to be sworn justices. At the same time, it was a frequent practice to issue special commissions from time to time to justices and others authorising them to hear and determine (oyer and terminer) all pleas arising in a particular county, or all pleas of a particular type—sometimes to hear and determine one case of special importance. Furthermore, commissions of gaol delivery were a frequent necessity in order to try the persons indicted before various authorities. As a matter of obvious convenience these commissions were eventually issued to the same commissioners. Justices Edition: current; Page: [167] had to be sent at stated intervals to take nisi prius trials; the same justices could also take the assizes, and it was convenient to give them oyer and terminer and gaol delivery1 powers as well. Hence there arose the circuit system whereby the justices of the superior courts made regular tours of the country and thus brought the courts of Westminster into direct contact with local needs. To complete their powers, it was customary to make the judges of assize justices of the peace in the counties they visited.

JUSTICES OF THE PEACE

Besides these travelling commissions, both new and old, which were sent through the country from Westminster, there developed a different type of commission composed of local gentry who were assigned first to keep the peace, and afterwards to be justices of the peace. From the end of the twelfth century local knights and gentry, often described as “keepers of the peace”, were occasionally called upon to co-operate with the sheriff in enforcing law.2 Their duties were principally of an administrative and police character. The Statute of Winchester (1285) laid down the rudiments of a scheme for maintaining order, but created no machinery for carrying it out. It thus became the practice to set up commissioners under varying titles to enforce the statute. From the beginning of Edward III’s reign a stream of legislation begins to enlarge their powers. Nor were their powers entirely statutory, for the Crown frequently increased or diminished the powers of keepers of the peace merely by changes in the terms of their commission, and regardless of the state of the statutory law existing at the moment.3 As before, they were to receive prisoners and to produce them to the justices of gaol delivery—and here it seems that the Crown showed some distrust of the sheriff who ordinarily would have performed these duties; indeed, the justices of gaol delivery were given authority in 1330 to punish the sheriff if he abused his powers of releasing prisoners upon bail.4 Very soon the keepers of the peace were allowed not only to keep prisoners, but to try them; in 1344 it was enacted “that two or three of the best people of each county should be assigned as guardians of the peace by the King’s commission”, and that these keepers should be associated with Edition: current; Page: [168] lawyers in a commission of oyer and terminer for the trial and punishment of felonies and trespasses against the peace.1 There was some hesitation about entrusting wide powers to the keepers of the peace, and legislative policy fluctuated;2 but the keepers (now called “justices”) by themselves, without the association of professional lawyers with them, exercised judicial powers regularly from 1368 onwards.3

Meanwhile, in 1349 came the Black Death, and in 1351 began the Statutes of Labourers, which attempted to regulate the disorganised labour market. This labour legislation set up elaborate machinery for fixing prices and wages and enforcing labour contracts, and established “justices of labourers” for the difficult task of enforcing it. Shortly afterwards the keepers of the peace and the justices of the labourers were merged into one commission with the new title of “justices of the peace”,4 which first appears officially in 1361. For the rest of the middle ages, and indeed ever since, hardly a Parliament passed without adding some new duty to the work of the justices of the peace. At first they received salaries payable out of the fines which they inflicted, but as time went on the change in the value of money made their wage too small to be worth collecting; it has now long been obsolete.5 They were and generally still are laymen and not lawyers,6 but it must be remembered that during the middle ages the average landowner had a fairly good knowledge of elementary law; what further technical assistance they needed was supplied by the clerk of the peace who served as a professional clerk to the justices. The clerk of the justices was frequently appointed also to the office of clerk of the Crown, the duties of which were to act as a permanent local secretary to the travelling justices who came down from Westminster to hold the pleas of the Crown. The clerk of the peace was technically the deputy appointed by the Custos Rotulorum, a mysterious official of whose history very little is known.7

The justices of the peace, like most other mediaeval bodies, held two sorts of meetings, large and small. The large meetings held four times a year are called quarter sessions. In the fourteenth century they must have looked something like the older Eyre, although on a smaller scale. Grand juries were charged, made presentments, and the persons so Edition: current; Page: [169] indicted were forthwith tried. Until the eighteenth century, quarter sessions tried capital cases, which after that date they reserved for the Justices of Assize. Quarter sessions also possessed an appellate jurisdiction from petty sessions. Petty sessions on the other hand consisted of two or more justices acting in the most informal manner for minor business and the lesser offences entrusted to them for summary trial without a jury, by virtue of numerous statutes in Tudor times and later.1 Both quarter and petty sessions were ultimately subject to the Court of King’s Bench, which by a writ of certiorari could remove and review their proceedings.

THE FATE OF THE LOCAL COURTS

The establishment of the justices of the peace marks the end of the practical importance of the old communal jurisdictions which we described in chapter I. Even in boroughs, where such jurisdictions as the court leet survived longest, the competition of the justices of the peace was severe, and ultimately successful. Whether the justices of the peace were deliberately designed to take the place of the local jurisdictions, which had already declined, or whether, on the other hand, they were part of a conscious policy whereby the Crown attempted to supplant local jurisdictions (dependent as they usually were upon the sheriff), it is impossible to say; there may be some truth in both views.2 It is certainly significant that the justices of the peace were fairly closely supervised by the central courts and ultimately by the Council; in this way they became not merely the local representatives of the royal jurisdiction, but also to a large extent the administrative and political agents of the King and Council. During the later Stuart period the government tried to exploit to the utmost the political influence of the justices of the peace.

This state of affairs, however, is not to be found in the fourteenth century when the institution was for the first time rapidly developing; in the critical reign of Edward III it is beyond doubt that the demand for the expansion of powers of justices of the peace came from the commons in parliament, and that the opposition to the demand came from the council and the Crown lawyers. It is presumably the Tudors who inaugurated the new policy of making the justices of the peace their instruments in local government.

Politics apart, the justices of the peace were a notable essay in decentralisation in criminal jurisdiction, and the development of the nisi prius system contributed to the same result in matters of civil litigation. The justices from Westminster came down into the county, bringing with them the advantages of metropolitan law administered in every county town. The problem of over-centralisation created at the end of the twelfth century was thus satisfactorily solved—at least for a moment.

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CHAPTER 7: THE TUDORS AND THE COMMON LAW COURTS

SUMMARY page
The Court of Exchequer 170
The Exchequer Chamber, 1585 171
The King’s Bench 172
Prerogative Writs 173
The Tudors and Local Courts 173
The Tudor Financial Courts 174

As the last chapter has shown, the fourteenth and fifteenth centuries were devoted to consolidating the monopoly enjoyed by the common law courts. In criminal justice alone did they allow developments to take place outside the system, and no doubt the reason was that the profession as a whole was not particularly interested in this arduous and unremunerative branch of law. The justices of the peace were therefore given a fairly free hand at the instance of the House of Commons, which seems to have felt in a dim sort of way that here was a field in which local self-government could be developed.1

The next chapter will discuss the darker side of this picture, and the emergency measures which the prerogative courts resorted to in restoring tranquillity after the Wars of the Roses. But although (as that chapter will show) the great contribution of the Tudors lay in the field of prerogative courts, nevertheless they did carry out some notable reforms in the common law courts as well.

THE COURT OF EXCHEQUER

We have already noticed the growth of the Exchequer of Plea, and its pretensions to become more than a purely revenue court.2 During the middle ages it seems to have held common pleas from time to times but certainly not in any great number. During the sixteenth century it is said to have claimed a general jurisdiction over many sorts of common pleas by means of the fiction that one of the parties was a Crown debtor,3 and this claim was admitted. For a long time the judges of the Edition: current; Page: [171] court (technically called Barons1) had been lawyers (although not necessarily serjeants). The history of this has never been explored, but it is clear that, by means unknown, the barons of the exchequer steadily raised their position until, in 1579, Queen Elizabeth, in making a new appointment, expressly gave the new baron an equal status with the judges of the other common law courts, and for the future the barons of the Exchequer shared with the justices of the King’s Bench and the Common Pleas the duties of going on circuit. Henceforth there were to be three common law courts of first instance.

THE EXCHEQUER CHAMBER, 1585

Late in the reign of Elizabeth still further confusion2 was created by the erection of yet a third court in the Exchequer chamber. The Court of King’s Bench had succeeded in acquiring a good deal of jurisdiction which once was peculiar to the Court of Common Pleas, and so acted as a court of first instance in these matters. If such actions had been brought in the Common Pleas, error would have lain to the King’s Bench; but when they were now brought in the King’s Bench in the first instance, error lay only to Parliament. Here the difficulty arose. Parliaments were originally held several times a year; Elizabeth summoned but ten in a reign of forty-five years, and so for long periods there was no court in existence which could hear the errors of the King’s Bench. To meet this situation two statutes3 erected a new court to hear errors from the King’s Bench. This court was to consist of all the judges of the other two common law courts—the Common Pleas, and those Barons of the Exchequer who were also serjeants—sitting together in the Exchequer chamber, and at least six were necessary before judgment could be given. Their decision was subject to further proceedings in error in Parliament, and the second statute explained that a party could still go directly from King’s Bench to Parliament if he chose.4 There was thus the disadvantage of an intermediate court of appeal, together with the anomaly that the use of that court was optional. A still further defect was that it was very difficult to assemble six of the justices and barons. The statutory body was not a court with fixed meetings every term, but a special assembly which might or might not meet—and it seems to have depended upon the influence of the litigants whether it met or not. If it did not meet at the date to which the case had been adjourned, Edition: current; Page: [172] then the record was discontinued. True, the second statute remedied this by saying that the absence of the judges shall not discontinue the process, but no effective means were ever provided for getting the court together within a reasonable period.

The same inadequate concession was made in respect of the other Exchequer chamber body to hear errors from the Exchequer of Pleas,1 and with the same disappointing results.

THE KING’S BENCH

The fact that these special arrangements had to be made for the review of judgments given in the King’s Bench will show that that court was enjoying unusually good business during the sixteenth century. The preamble to the earlier of the two statutes cited explains that the new court shall hear writs of error brought on “actions or suits of debt, detinue, covenant, account, action on the case, ejectione firmæ, and trespass” in the King’s Bench. These seven actions properly belonged to the Court of Common Pleas. Trespass (and ejectione firmæ resembled trespass) seems also to have been part of the original jurisdiction of the King’s Bench, but during the middle ages the only trespasses usually brought in the King’s Bench were those of unusual violence or importance.2 Most of this jurisdiction, therefore, had been acquired at a later period, and by somewhat devious means.

We have already mentioned the conflict of the King’s Bench with the Exchequer and with the Common Pleas in the fourteenth century;3 in the fifteenth century a second effort brought the King’s Bench once more into competition, if not into conflict, with the Common Pleas. The device employed in order to acquire the wide jurisdiction mentioned in Elizabeth’s statute4 of 1585 was fairly commonly used in the reign of Henry VI and was in constant use throughout the Tudor period. A bill of Middlesex made the defendant actually or fictitiously a prisoner in the custody of the marshall of the court’s marshalsea. This done, the court could entertain any sort of action against him since he was already within the jurisdiction of the court—a principle, moreover, which most courts professed. In such cases the proceedings were by bill instead of by original writ. Before the end of the century means were found5 whereby the defendant could be really arrested if he would not voluntarily admit that he was technically in the custody of the Edition: current; Page: [173] marshall, and so the new procedure served as the complete equivalent of an original writ. Throughout the sixteenth century the court enjoyed this usurped jurisdiction, with curious results. The competition between King’s Bench and Common Pleas was sometimes not merely a matter of offering procedural advantages, but sometimes even in offering better substantive law. Thus in at least one matter, which we shall refer to later,1 the two courts deliberately competed by offering two different rules of law for litigants to choose from, and in the end it was the more enlightened rule which prevailed.

PREROGATIVE WRITS

There is another aspect of the King’s Bench during this period which deserves attention, and that is the growth of the “prerogative” writs. The history of mandamus, certiorari, prohibition and some other similar writs is still unwritten,2 but it is clear that they first become important during the Tudor period, and that they were a proper development of the jurisdiction of the King’s Bench, for that court had long been close to the Council in the exercise of royal discretion in judicial matters. The writs themselves seem to have been originally mere administrative orders from superior officials to their subordinates telling them to do something, to give some information, or the like. Clearly, the King’s Bench was making a great contribution to public law when it adapted these writs to legal purposes, and assumed the task of directing them as occasion required to various departments of central and local government. When one considers the enormous activity of the King’s Council under the Tudors, it is a little surprising that the Council should have allowed the court to handle the prerogative writs, for it seems just as likely that the Council itself should have undertaken to supervise local officers by its own purely administrative machinery. If it had done so it is clear that our constitutional law would have been very different.

THE TUDORS AND LOCAL COURTS

In spite of their centralising policy, the Tudors realised that there was a proper place and function for the older local jurisdictions and so they attempted to prevent their continuing decline. To this end an act3 was passed in 1601 which is a striking example of the unforeseen effects of legislation. It was enacted that in certain personal actions a Edition: current; Page: [174] successful plaintiff shall not recover more costs than damages, if the justices certify that the damages are less than forty shillings. The object of the act was to exclude small cases from the courts at Westminster, where costs were out of all proportion to the issues at stake. The statute operated not on the verdict but on the judges’ certificate. Evasion of the act became general,1 and in many cases judges were loath to grant a certificate which would deprive a successful plaintiff of his costs. Full use of it was not made until the middle of the eighteenth century, but in the meantime other statutes2 continued its policy, notably in actions of slander.3 This legislation failed entirely in its object of reviving the local courts and excluding small cases from the central courts, but it did have the curious result of distinguishing arbitrarily between trespass (which was within the statute) and case (which was outside of the statute) as remedies for personal injuries. It thus became perilous to bring trespass on a battery if there was a possibility of getting a verdict of only nominal damages. Such actions are therefore generally framed in case for negligence.4

THE TUDOR FINANCIAL COURTS

These courts have never been studied in detail and so little is known of them apart from the statutes creating them. If they were to be investigated, however, it might appear that the Tudors were not so prejudiced against the common law as is often supposed. It is perfectly true, as we shall see, that the Tudors developed the prerogative and equitable jurisdictions to a remarkable degree, but the creation of the financial courts seems to show that they were equally appreciative of common law forms, and were ready to use them on suitable occasions. Beside Chancery, Star Chamber and the Court of Requests, we must in fairness place those predominantly common law courts which were equally the creation of the Tudors, the Courts of Augmentations, First Fruits, Wards, Liveries (later combined with the Court of Wards), and Surveyors.5

The Court of Augmentations was erected by statute6 in 1536 partly as a department of audit, partly as an estate office, and partly as a franchise court (modelled in part on the chamber of the duchy of Lancaster7) to deal with the vast quantity of lands confiscated from the monasteries upon their suppression. Then, in 1540, the Court of First Fruits and Edition: current; Page: [175] Tenths was erected1 to manage sundry payments hitherto made to the popes, and recently transferred to the Crown.

In the same year, the Court of Wards was similarly constituted to manage the ancient feudal revenues of the Crown, and especially to enforce the rights of wardship and marriage,2 in 1540. As Coke3 observed, an office in that court was partly “ministerial” and partly judicial, so that the exercise of administrative as well as judicial powers by the same institution is particularly remarkable. In the next year a Court of Surveyors was established to manage other portions of the royal estates.4 It is noteworthy that these bodies were primarily administrative departments for the management on business lines of a vast quantity of property, but they were given judicial powers which were very likely to be used when the Crown itself was a party. From this point of view they resembled the old Exchequer, and it has been suggested that the example of the Exchequer practice was the inspiration for certain provisions which facilitated claims in these courts by subjects against the Crown.5 As courts they were not oppressive (although no doubt feudalism in itself gave rise to hardships). It is interesting to note that when the rights of the subject in litigation against the Crown were thoroughly examined in Pawlett v. Attorney-General6 and later in the Bankers’ Case7 the practice of the Exchequer and the Court of Augmentations was discussed.8

A curious point arose later in the reign when Henry VIII by letters patent dissolved and re-founded the Court of Augmentations and abolished the Court of Surveyors, although they had been created by statute. Under Edward VI doubts arose as to the propriety of this, and so an act was passed which grudgingly condoned this use of the prerogative.9 Queen Mary attempted (unsuccessfully) the still more curious feat of dissolving the Court of Augmentations, and (the next day) uniting it with the Exchequer.10

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CHAPTER 8: THE RISE OF THE PREROGATIVE COURTS

SUMMARY page
The Need for Newer Institutions 177
The Council and Petitions 178
The Origin of Chancery Jurisdiction 180
The Origin of the Star Chamber 181
Star Chamber and Statute Law 182
The Court of Requests 184
Courts of the Marches 184
Royal Church Courts 185
Equity Side of the Exchequer 185
Equity in Seignorial Courts 186
Relations of the Old Courts to the New 187
Common Law and Equity in the Fifteenth Century 188
Equity under the Tudors 189

The previous chapter has told only half the story of Tudor reform in the sphere of law, for besides the common law courts the Tudors also inherited a group of institutions which modern historians describe as prerogative courts. The ancient common law courts had been consecrated by the centuries; the Tudor financial courts had been solemnly established by parliamentary statutes; but the courts to be considered in this chapter could claim neither antiquity nor legislative sanction. Some of them had grown up imperceptibly in various departments of government or around some officer of state; others were erected by royal commission. There was nothing irregular or “unconstitutional” in this, and the legitimacy of these institutions was undoubted. We have already seen, even in the fourteenth century, that the powers of Justices of the Peace owed as much to their royal commissions as to the statutes of Parliament.

The principal characteristic of prerogative courts, apart from their peculiar origins, was that they did not use the ancient system of common law writs, forms of action, or procedure. Instead, they used various forms of bill or petition between party and party, while crown proceedings could be begun by information, citation and like. The fundamental limitation on their jurisdiction came from the common law rule that a man could not lose his land, save by a royal (which was interpreted Edition: current; Page: [177] as a common-law) writ. Legal estates in real property were thus beyond their reach.1 It likewise followed that prerogative courts could not try treason or felony, for the forfeiture or escheat of land would be involved. During the Tudor age these courts nevertheless elaborated important bodies of law such as equity in the Chancery, maritime and commercial law in the Admiralty2 and Court of Requests, libel and slander and much criminal law in the Star Chamber, and so on.

THE NEED FOR NEWER INSTITUTIONS

We have frequently insisted that the common law was essentially the law of land. The implications of this fact were very far-reaching. Its procedure was designed to reach people who owned land, and consequently was directed principally against the land rather than the person. The King’s Court was at first concerned with the king’s tenants and their feudal rights and duties, and such people could be most surely reached through their feudal holdings. When the common law of the King’s Court was becoming the common law of the country, it had to deal with very different problems. Other heads of law besides real property had to be developed, and litigants of the newer type were not always landowners of any consequence, although they may have had other forms of wealth. The old procedure was not always effective in these cases. The common law procedure was generally patient and long-suffering, for it well knew that the tenant’s land at least could not be removed from its jurisdiction. It knew also that haste was practically undesirable, for agriculture was an exacting pursuit which made it impossible for a landowner to leave his estate at a moment’s notice. Relics of this still persist, for the long vacation of the courts and universities was once necessary to permit bench, bar and litigants to reap and garner their crops and plough their lands. Fixed terms, widely spaced, were designed to enable court work to fit in with agricultural work.3

With the growing complication of society, law had to deal with people who could not be reached quickly, if at all, by means of a procedure directed against land—with people, that is to say, who could not be identified with certain acres. Similarly, there were matters which could best be settled by securing the prompt personal attendance of parties, and by giving them direct personal commands to act or to desist in certain matters. The common law rarely achieved anything so logically direct as this action in personam, simply because its main pre-occupation was real property, and in that particular subject it was as convenient to reach a man by attacking his land, as later admiralty found it useful to reach a man by attacking his ship.

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Again, the common law was slow to admit the evidence of parties and witnesses. There was in fact little need for such evidence in the early days of the common law, for its main concern was with records and documents (to which it attached exaggerated importance) or else with such publicly notorious facts as seisin, which were better proved by a jury than by the interested statements of parties or their friends. For minor matters where no deeds were used compurgation was good enough. Here again, the development of law beyond the confines of real property made it desirable to collect evidence, especially from the parties themselves. How useful this could be was apparent from the success with which the canonists were using written depositions.

If any further reason for using such a method were needed, it could be found by observing the decline of the jury. Especially in the fifteenth century there are complaints that juries were packed, bribed, intimidated, partial and difficult to obtain within any reasonable space of time. Distrust of juries is an important factor in the early popularity of equity courts.

Finally, there were those who favoured as a remedy to all this the direct business methods of the administrator. They felt that there were cases which could not be satisfactorily handled by the common law with its writs, its delays, its pleadings, its limited resources in the finding of facts and the awarding of judgment, and its weakness in the face of disorder and corruption. The abandonment of court forms and the substitution of executive methods, moreover, brought with it other consequences. Some of the substantive rules of the common law, defensible enough when considered purely from a technical point of view, seemed unjust to the unlearned who had to suffer from them, and so we need not be surprised that there grew up a desire for more equitable rules as well as more effective procedure.

THE COUNCIL AND PETITIONS

Persons who desired such extraordinary relief addressed themselves to the King and his Council. As the ultimate source of jurisdiction the King had long been accustomed to receive complaints from persons who alleged that they were unable, in law or in fact, to obtain redress in the usual courts. It has been suggested1 that Edward I was glad to encourage these approaches, but was compelled by their numbers, and by the need of checking the handling of them by his subordinates, to insist that they be presented in writing, as petitions. In doing this, he was following papal practice, and like the popes, soon found it necessary to devise a procedure by which the easy cases were dispatched to the departments and dealt with by officials, while difficult matters came before him and the Council, in order to prevent the work of Parliament Edition: current; Page: [179] being obstructed by their number.1 It soon became normal for large panels of “receivers” and “triers” of petitions to be set up at the beginning of every parliament. When Parliaments were less frequent, it seems that these applications (which continued to increase rapidly during the later fourteenth century), finally constituted a large and steady charge upon the Council’s time.

Just as one part of the local enforcement problem was attacked by setting up the new institution of justices of the peace for local matters, so the deficiencies of the central courts were being supplied by the King’s Council. For a time, Parliament had occasionally served as a court of royal discretion,2 but by the middle of the fourteenth century Parliament itself had become an institution which to some extent could be regarded as separate from the Council.3 The Council nevertheless remained in its ancient position of a small group of officials, household officers, clerks and advisers, continually attendant upon the King, and therefore exercising in his name that residuum of discretion and equity which was inseparable from the royal person. As Parliament became more settled in its powers, petitioners who sought extraordinary relief addressed themselves to the Council; and in any case, even if their petitions had been presented in Parliament, it was most likely that it would be the Council which actually passed upon them.

Indeed, a variety of addresses occur in the petitions of the middle and later fourteenth century. Sometimes they are sent to the King, sometimes to the Council or the Parliament, and sometimes to the Chancellor or some household official. In any case it was the Council which generally took action, irrespective of the address upon the petition. The administrative and political duties of the Council were already exceedingly heavy, and the mass of petitions which streamed in every day immensely increased its task. Then, too, besides petitions, the Council itself would sometimes initiate proceedings of a semi-judicial character by calling upon some local magnate who was too powerful to be reached by the ordinary courts, to appear before the Council under the penalty (sub poena) of a sum of money to answer for his misdeeds—which were Edition: current; Page: [180] usually some form of oppression or disorder. The Council therefore found itself burdened with a growing mass of semi-judicial business; some of it could be transferred to the courts of common law, but some of it had to be considered by the Council itself, either because unusual relief was necessary, or because the parties were too influential to be amenable to the ordinary process of the courts. The problem arose of how to deal with this business. The same solution was found as in previous cases. A routine was established and officials were assigned for its working, only in this case an already existing institution, the Chancery, was used to carry out these new duties.

THE ORIGIN OF CHANCERY JURISDICTION

A variety of theories have been proposed to account for the origins of Chancery jurisdiction, but the general trend has been to establish an old theory first put forward by Palgrave.1 According to this view the Chancellor’s jurisdiction was not by virtue of his office; still less had it anything to do with his supposed position of keeper of the King’s conscience.2 At a later date, it is true, Chancery became a court of conscience, with a jurisprudence deliberately based upon that idea, but that was a later development and will not account for the earliest period of Chancery history. It now seems clear that the Chancellor’s position was originally that of an informal delegate of the Council.3 Overburdened with work of every description, the Council delegated particular matters to the Chancellor, who of all the officials was the one who was most constantly in attendance. Moreover, the Chancellor already had a well-organised office staff which had long been familiar with the judicial work arising on the common law side of Chancery,4 and for a long time had exercised the power of issuing writs both judicial and administrative to all the King’s officials, central and local. The Chancellor, therefore, commanded the machinery which sooner or later would have to be set in motion in order to give redress to the petitioners, and so nothing could be simpler than for the Council to transmit the Edition: current; Page: [181] petitions addressed to it to the Chancellor, sometimes (but not always) endorsing them with a brief instruction what to do. Both on the common law and on the equity sides the Chancellors frequently called upon the judges of the common law courts to sit in Chancery, and it may well be the case that a good deal of genuine collaboration took place in the great task of creating the system of equity.

THE ORIGIN OF THE STAR CHAMBER

It was only natural that petitions concerning civil matters should be treated in this way. Many petitions, however, raised questions of a criminal character. As we pass through the fifteenth century, disorder and oppression by local magnates constantly becomes more common; petitioners are continually complaining of the lawlessness of their great neighbours, and it is perfectly evident that the courts of common law were helpless in face of this situation. Their procedure was too slow and too mild; juries and sometimes judges were intimidated by large forces of retainers who constituted the private armies of unruly subjects. With such grave matters the Council alone was powerful enough to deal. Peremptory commands to appear before the Council were the only effective procedure. Consequently the Council retained control of these graver matters in its own hands. The Council’s original jurisdiction, therefore, shows signs of dividing into two portions, most of its civil jurisdiction being exercised in its name by the Chancellor, while the rest, together with its criminal powers, was exercised at the Council board.

When, finally, the House of Lancaster had fallen and the Yorkist, Edward IV, had established himself upon the throne, important changes took place in the Council. As far as we can judge (the affair is somewhat mysterious) what happened was this:1 the Council lost the power of controlling the administration which it had exercised so rashly under the Lancastrian kings. Edward IV retained in his own hands the control of the State machinery, which he operated through officials responsible to him alone. The Council’s attempt to become the supreme power in the State failed with the fall of the House of Lancaster. The evidence which survives of the Council’s activity under Edward IV is very scanty indeed; yet on the other hand we know that the Council was a very large body. It would seem that Edward IV deliberately confined its activities to the sort of business we have mentioned, namely, the handling of petitions, especially when those petitions raised questions of public order, and the administration of criminal law. Of the many rooms which the Council used in the fifteenth century its favourite seems to have been the Star Chamber, and from the reign of Edward IV onwards it seems that the Council is steadily turning into the Court of Star Chamber.

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Not until the reign of Henry VIII do we find the deliberative and executive functions of the old Council revive. But by this time the old Council had become the Court of Star Chamber with a large and regular judicial business. Henry VIII, therefore, had to create a new institution, the Privy Council. When the Court of Star Chamber was abolished in 1641, the old mediaeval Council at last came to an end, and there only remained Henry VIII’s recent invention, the Privy Council.

A word must be said of the famous act of 1487.1 Old writers took it as the statutory origin of the Court of Star Chamber, principally on the strength of a marginal title on the statute roll which reads “pro camera stellata”. So firm was this belief that when the court was abolished in 1641 the act of 1487 was repealed. It has now been shown that this act has no connection with the Star Chamber, and that the marginal title is an addition in a later handwriting. The act’s principal effect was to emphasise the separation between the civil jurisdiction of the Chancery and the criminal jurisdiction of the Council, for it called upon the principal officers of State2 to exercise wide powers for the repression of serious crime—and it is certain that they had already exercised these powers for many years. In short, the act was one more public threat by the government, which proclaimed its intention of vigorously enforcing the law by a summary procedure in the Council.3

Nevertheless, as far as the reign of Henry VII is concerned,

“the most striking characteristic of the court was its moderation. It was surely the mildest-mannered tribunal that ever sentenced a criminal, considerate in its procedure, gentle in its punishments, and failing altogether to live up to the reputation of ruthlessness that the Star Chamber has enjoyed since the seventeenth century.”4

STAR CHAMBER AND STATUTE LAW

The tradition which associated the Star Chamber with the act of 1487 has some significance, however, for it emphasises the importance of the problem of enforcing statute law. The fifteenth-century government tried to check the growth of disorder and corruption by enacting heavy penalties against persons guilty of these offences. But statutes are unavailing without enforcement, and they had little effect until the Council Edition: current; Page: [183] and the Star Chamber took the matter in hand. It thus came about that the Star Chamber was largely concerned with the summary enforcement of legislation. Simultaneously, attempts were made from time to time to provide special courts for the enforcement of particular groups of statutes. The act of 1487 is an example of this policy, and the similarity of the means and the end may well account for the rise of the opinion that the act was the origin of the court, instead of both being independent attempts to enforce the same body of statute law.

Indeed, it was becoming a common opinion that drastic legislation can only be effectively enforced by courts erected ad hoc, and untrammelled by the ancient common law traditions. An early example is a statute of 1362 which contains the following remarkable, but little-known provision:

“Item, if any man feels himself grieved contrary to any of the articles above written or any others contained in divers statutes, if he will come into the chancery (or someone on his behalf) and make his complaint, he shall now have a remedy there by force of the said articles and statutes without suing anywhere else to have redress.”1

If the provisions of this and similar acts had been consistently followed, the Chancery would have become a court for the application of statute law, and particularly that of a constitutional, international or commercial character. The act of 1487, as we have seen, set up a special body to deal with statute law of a criminal character, and this was amended in 1529.2 In 1535 or 1536 it was proposed to empower the group mentioned in the act of 1487 to hear charges of corruption against certain public officials,3 and still more interesting is a bill of about the same date which would have set up a court of “conservators of the common weal” to enforce all statutes passed since 1485.4 Of the greatest examples of this tendency, the financial courts of Henry VIII, we have already spoken: one other, the Court of High Commission, will be mentioned later.

The connection of the Star Chamber with the numerous statutory offences created during the fifteenth and sixteenth centuries was carried a step further when, under the Tudors and Stuarts, it undertook to enforce royal proclamations. The legal questions involved belong to constitutional history, where they had much to do with the growing unpopularity of the court, which was considerably augmented by a Edition: current; Page: [184] further development whereby the Star Chamber assumed legislative powers by making “decrees”.1

THE COURT OF REQUESTS

Numerous courts were founded upon the model of the Council. Many of them have faint beginnings in the reign of Henry VII or even earlier, but it is to Henry VIII and Elizabeth that they owe the bulk of their power. We have already mentioned the Council and the Star Chamber; there were many more besides. The Court of Requests first appears in 14832 and was modelled to some extent on the Chambre des Requêtes, a similar institution in France. The next we hear of it is in 1485 when a bill to abolish it was introduced into parliament and passed the commons, but got no further.3 Under Henry VII it was, in effect, a committee of the Council for the hearing of poor men’s causes and matters relating to the King’s servants. Sometimes it appears in two divisions, one in the White Hall at Westminster and the other travelling with the King. Its jurisdiction was mainly civil, although at times it entertained matters of a criminal character, such as grave disorder, forgery, etc., and for some time the court seems to have been genuinely popular. Its head was the Lord Privy Seal, and assisting him were a number of masters of requests, two of whom deserve to be remembered for their contributions to legal literature: Christopher St. Germain, and Sir Julius Caesar. Its organisation closely followed that of the Chancery. Its procedure was at first intended to be informal, but the abuses to which this led compelled the court to follow the Chancery system of having bills drawn and signed by counsel. In the end it passed from an extreme of informality to the opposite extreme of technicality when it had adopted the summary procedure of the civil law—which was far from summary according to modern ideas. No doubt the example of Chancery was influential here, as also in its claims to administer equity. Later in Elizabeth’s reign the presence of civilians in the Court of Requests led that court to exercise a wide Admiralty jurisdiction, including mercantile as well as maritime and prize jurisdiction.4

COURTS OF THE MARCHES

Exercising concurrent jurisdiction with the Council and the Star Chamber were two other courts, the Council of Wales and the Council Edition: current; Page: [185] of the North. These remarkable bodies combined with the utmost facility the political business of governing Wales and the North (where there was considerable unrest at this time) with such judicial duties as seemed to them expedient. They controlled local government within their area, and acted as courts of equity and of extraordinary criminal jurisdiction.

ROYAL CHURCH COURTS

The Reformation statutes necessitated the creation of yet more special courts to enforce their provisions and carry out their policy. Appeals which once went from the archbishop to the pope were reserved by a statute of 1534 to the King, who was to follow the papal practice of commissioning delegates to hear them.1 Hence there was created the High Court of Delegates. The judges were not permanent but nominated ad hoc for each case, and, as they were paid latterly but a guinea a day, only very junior men would consent to act, and so the court enjoyed very little esteem.2 Its powers are now exercised by the Judicial Committee of the Privy Council.

The Act of Supremacy3 conferred upon the Crown the whole remaining jurisdiction of the pope, and to exercise this immense and vague authority commissions were issued from time to time, which finally became stabilised in their content, and the persons empowered to act by them became known as the Court of High Commission.4 It consisted mainly of bishops and devoted itself largely to the criminal side of the ex-papal jurisdiction. Its proceedings were later likened (with some justice) to those of the continental inquisitions, so severely did it search for ecclesiastical offenders.5

EQUITY SIDE OF THE EXCHEQUER

In 1415 the Commons believed that John of Waltham, who died in 1395, had invented the writ sub poena in the reign of Richard II (1377-1399), and complained of its use in the Exchequer as well as in the Chancery.6 This seems to be the first reference, faint and doubtful as it is, to a court of equity in the Exchequer in the modern sense. Its history is by far the most obscure of all the English jurisdictions, and all that seems known of it is that it acted as a court of equity, duplicating to Edition: current; Page: [186] some extent the Chancery during the seventeenth and eighteenth centuries,1 and indeed down to 1842 when its jurisdiction was transferred to the Chancery.

EQUITY IN SEIGNORIAL COURTS

A remarkable and illuminating parallel to the development of equity beside the common law courts of the Crown is to be found in the history of certain great seignorial estates, especially those of the abbey of St Albans, many of whose archives have survived. The abbot had courts in the several manors, and also a central court which supervised the estates as a whole. These may be called his “common law” jurisdictions. Already in 1308, however, we find that the abbot had a council,2 and in 1338 we find that council legislating on the rules of succession governing the abbey’s tenants,3 and towards the end of the century this council had a civilian and canonical element: in 1381 the insurgent villeins chased away the doctors of both laws, saying that they would not henceforth submit to the civil or the canon law.4 The movement and the antipathy towards it were not confined to St Albans, for a few years later a royal statute recited

“the grievous complaint of the commons made in full parliament for that many of the king’s subjects are made to come before the councils of divers lords and ladies, to answer there concerning their freeholds and many other things real and personal which ought to be conducted according to the law of the land; against the estate of our lord the king and his crown, and in defeasance of the common law.”5

The need for newer institutions was therefore felt both in royal and in seignorial judicial systems, and in both it was the conciliar form which was tried. Moreover, in both systems there was a tendency to Edition: current; Page: [187] turn to civilians and canonists. In England, the seignorial council of civilians had much less influence than on the continent, where the influence of civilians is said to have done much to depress the position of the peasantry and to prevent their gradual rise in status.1 The growth of copyhold and its recognition as a “customary” freehold in England had the result of gradually and almost imperceptibly enfranchising the villeins, but this would hardly have been possible if the civilians had succeeded in imposing their distrust of custom.2

RELATIONS OF THE OLD COURTS TO THE NEW

In the middle ages, as now, the appearance of new institutions, making light of the solemnities of dogma and procedure which were dear to practitioners before the older courts, aroused some fear and more resentment. Then, as now, conservatives were persuaded that the constitution (or the common law) was in danger, and the first impulse was not to reform the old, but to attack the new order of courts.

The rolls of the mediaeval English parliaments contain numerous petitions and acts directed against the Council and the Chancery. The promise of justice in the Great Charter3 was regarded as a declaration that the common law courts, and they alone, had jurisdiction over the lives, persons and property of Englishmen. In 1331 its provisions were pointedly re-enacted;4 in 1352 it was again recited and the King had to promise that the Council would not proceed without indictment or common law process on an original writ;5 although this was confirmed several times, we find in 1363 another attempt to enforce this construction of the charter—the Council must take security from complainants, and even then proceed only by common law.6 In 1368 the Commons once more tried to insist upon indictment or original writ as the sole foundation for legal proceedings.7 All these statutes denouncing the council were obviously ineffective, despite the show of assent given to them by the Crown. In 1389 the Chancellor is coupled with the Council in a petition to which Richard II only replied with a saving of the royal prerogative.8 The tide was on the turn. A statute of 1394 tried a different policy by allowing the Chancellor to award damages to a defendant when the plaintiff’s suit appeared founded upon Edition: current; Page: [188] falsehood,1 but the fall of Richard II brought back the older type of remonstrance. In 1415 the writ sub poena was denounced as a subtlety invented in the previous reign by John Waltham, and the examination of parties and witnesses without lawyers and without records and the use of civil and canon law forms were again vigorously denounced. The petition was bluntly rejected by the King.2 Another in 1421 which alleged that a sub poena was not “due process” was likewise refused.3 Clearly the Council and the Chancery were now solidly established. Indeed, for the future, legislation took the opposite course of increasing the powers of the Chancellor and the Council by a series of acts4 of which the act pro camera stellata5 is only one example.

The petition of 1389 was therefore the first to which the Crown ventured a refusal, and that of 1394 begins a line of statutes which accept and even enlarge the jurisdiction of the Chancellor and Council. We may therefore conclude that during the fifteenth century the Commons were gradually reconciling themselves to the existence of a jurisdiction which the country at large seems to have welcomed, and their protests can be largely ascribed to the professional common lawyers who largely directed its proceedings.

COMMON LAW AND EQUITY IN THE FIFTEENTH CENTURY

Whatever the bar may have thought about the problem, the common law judges seem to have been prepared to work with the Chancery in a spirit of co-operation. They were constantly in consultation with the Council and the Chancellor, both for the statutory purposes already mentioned, and also to assist him when called upon in the exercise of his equitable jurisdiction. The frequent conferences in the Exchequer chamber for discussing difficult cases afforded yet one more opportunity of contact. There is therefore no further questioning of the powers of the Chancellor or the Council, but instead we find an endeavour to define the limits of the two jurisdictions.6 In this there was naturally some conflict, especially as Chancery already enjoined parties from pursuing common law remedies, and the common law courts sometimes talked about prohibiting suitors from going into equity, and at least once threatened to release by habeas corpus one who had been committed by the Edition: current; Page: [189] Chancellor for contempt.1 However, occasional outbursts of ill-feeling such as this contrast with the general atmosphere, which seems to have been one of mutual tolerance. Indeed, in 1464 the Court of Common Pleas was once given the chance of recognising an equitable estate, with the reasoning that “the law of chancery is the common law of the land”. This golden opportunity was lost,2 and so we had to wait four hundred years for the fusion of law and equity.

EQUITY UNDER THE TUDORS

The sixteenth century shows us Council government at its best. The courts of Star Chamber, Requests and High Commission collaborated in the most intimate manner with the Privy Council in the task of government. All the troubles brought about by religious dissension, economic distress, foreign wars and domestic sedition were handled courageously and effectively by the newer institutions. Nowhere will be found so striking a contrast with the inadequacy of the Lancastrian age. No doubt there was some ruthlessness: legal and constitutional barriers had to yield when the State was believed to be in danger—and it certainly was on more than one occasion. The Privy Council itself exercised a jurisdiction more vague even than that of its offshoots, and all the conciliar courts inflicted “unusual” and sometimes picturesque punishments when occasion demanded. Torture was not unknown to its procedure: sedition, defamation, heresy, unlicensed printing, playacting, perjury, riot—all these might be visited with fine and imprisonment, while all sorts of mercantile disputes (especially those involving aliens), domestic disputes and private litigation of all sorts flowed in an ever-growing stream through the Council chamber, in spite of all attempts to divert it to other courts of law or equity.3

By the middle of the sixteenth century the Court of Chancery had a great deal of business and a large and complicated establishment. In theory it remained, almost to the end, one court with a single judge, the Chancellor himself, but the legal work alone, without considering the political duties attached to the office, was very heavy and devices had to be found for lightening the burden. Minor matters were left to the Masters in Chancery, while the Master of the Rolls was coming into prominence as an assistant, and sometimes as a deputy, to the Chancellor.4

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The tolerably good relations which we have seen existing in the fifteenth century between common law courts and Chancery were interrupted during the chancellorship of Cardinal Wolsey (1515-1529). The list of charges against the Cardinal1 accuse him of misusing injunctions as well as publicly insulting common law judges. The fact that harmony once again reigned under his successor, Sir Thomas More, would seem to indicate that the fault lay as much with Wolsey’s character as with his policy. More, trained as a common lawyer, even suggested to the judges that they should adopt equitable principles and so render injunctions unnecessary.2 He at least seems to have thought this a practicable solution, but again the judges replied with a non possumus. The one hopeful sign was that there was no distinction of a common law bar from a Chancery bar; as Bacon was able to remark much later, many of the common law judges had either sat as commissioners in Chancery, or had practised there earlier in their careers. Not until the accession of James I did discord reappear.

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CHAPTER 9: PREROGATIVE, EQUITY AND LAW UNDER THE STUARTS

SUMMARY page
The Courts and the Crisis 191
The Common Lawyers and Chancery 193
Chancery and Absolute Power 194
The Survival of Chancery 195
The Prerogative and Administrative Law 195
The Common Law, Sole and Supreme 197

Many different movements contributed to the great crisis which dominates the Stuart period, and not all of them can be considered here. Economic movements enhanced the cost of government, although the revenue of the Crown was much less elastic. A fiscal crisis was therefore an important factor, bringing in its train difficult problems of law when the Crown attempted to adapt mediaeval machinery to the needs of a modern State. Hence there was a long struggle over benevolences, forced loans, impositions, feudal dues, ship-money1 and the like, in which both Crown and Parliament appealed to the practice of the middle ages. Resistance naturally centred in the House of Commons where the financial crisis took the form of a constitutional crisis, and where several cases asserting parliamentary privileges expressed the high pretensions of the parliamentary party—advised, of course, by common lawyers.

To this must be added all the bitterness aroused by violent religious controversy. In its extreme form this might even go so far as to advocate social or communistic revolution, while at the opposite pole was the combination of “divine right” in political theory and “high church” doctrines in theology.

THE COURTS AND THE CRISIS

Of the general aspects of this complicated situation we have already spoken;2 in this chapter we are especially concerned with the position of the courts during the struggle. There is little difficulty in understanding why the Court of High Commission should incur the hatred of Puritans whom it punished for their non-conformity to the established Church and for their vigorous attacks upon its doctrine and ritual. So, too, the Star Chamber dealt heavily with political offences, especially political and seditious libels, and sometimes inflicted forms of mutilation Edition: current; Page: [192] unknown to the common law. “But nothing was done by the Stuarts by way of fine and corporal punishment”, observes Dr Tanner,1 “that had not been already done under the Tudors. The later unpopularity of the court was due to a change in the popular point of view, and not in the action of the court.” It is this change which is our concern in this chapter, for it took the form of a denial of the Star Chamber’s legal right to exist. Why should the common lawyers of the seventeenth century deny the legality of the Star Chamber and, indeed, of the Chancery as well?

A certain amount of factiousness must be admitted. The common law had little power against the newer sorts of offences which modern governments have to deal with—sedition, libel and the like. To hamper the Star Chamber would therefore remove many restraints from the opposition. Professional jealousy was not involved to so obvious an extent as is sometimes thought. The common law judges often sat, and were indeed the most permanent element in the composition of the Star Chamber. The bar was not restricted to any peculiar body. In affairs of state, however, the judges may well have felt that other influences than their own were at work. The historical doubts professed by the common lawyers as to its legality rested partly on the old mediaeval protests in Parliament against the jurisdiction of the Council and Chancery,2 and partly on the alleged statutory origin of the court in the act pro camera stellata,3 the scope of which was constantly being exceeded in Star Chamber practice. The former argument was attractive, no doubt, but only the absence of an historical conscience can account for the use made of the latter: Coke and other contemporary scholars4 knew perfectly well that it was specious.

Perhaps the greatest blow to the court came from its friends rather than its enemies. King James attended in person on several occasions, and the spectacle of the sovereign sitting for five days and giving judgment in a libel action must have compelled a sharp division of opinion.5 To some it must have seemed a heavy blow to the idea of an independent judiciary which was just emerging; to others it would naturally appear as a triumph of the principle of personal monarchy, and monarchists indulged in fantastic flights of mysticism as they acclaimed the Star Chamber,6 not for its usefulness, but for its embodiment (in their view) of the principle of personal monarchy.

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As we have seen, in its foundation the Star Chamber was not based upon any such theory or practice, but its defenders chose to support it upon this ground, and in so doing they took an issue upon which they eventually failed—and failed without having tried the real merits of the Star Chamber as a judicial institution.

Both the manner and the time of the Star Chamber’s fall was therefore determined by the fatal support of royalist partisans.1 The meeting of the Long Parliament in November 1640 sealed its doom. Parliament first established anew the claims of Parliament to be summoned frequently, then declared its absolute control over taxation, and then, in 1641, abolished the Star Chamber, the analogous Council courts of the North and of Wales, and the Court of High Commission.2 They are almost the last legitimate acts to be passed by King, Lords and Commons until the Restoration nineteen years later.

The act did not mention the Court or Requests, which in fact continued to sit until the outbreak of the civil war. At the restoration, masters of requests were appointed, but it was clearly felt impolitic for them to exercise judicial functions. The court was therefore not really revived after the interruption in 1642.

THE COMMON LAWYERS AND CHANCERY

Chancery presented a more difficult problem, and the struggle was longer—and ended differently. By the time of Coke the jurisdiction of Chancery and the principles of equity were already sufficiently well known for opponents of the system to feel that they would have to discuss the relative merits of common law and equity. A purely historical argument was rather hazardous, for the old mediaeval attacks on Chancery had been followed by many statutes which recognised the jurisdiction. The machinery of injunctions and prohibitions was certainly admirably adapted to the creation of friction between courts of law and equity, and the personality of Coke was sufficient to make a delicate situation an impossible one. Open conflict was all the more inevitable since here, too, the extreme royalists asserted that Chancery was a prerogative court—and gave to the word “prerogative” the full meaning of the word as they conceived it.

This was hardly true. The recently published decisions of Lord Bacon show that the court was already transacting a large mass of useful business along fairly settled lines, and that whatever arbitrary element there may once have been in equity, was now to a large extent eliminated. The wild speculation of many royalists to the effect that the Court of Chancery and the system of equity were dependent upon a personal prerogative of the monarch threw the whole legal system of the country Edition: current; Page: [194] into the political arena. The common lawyers, whenever they touched upon the substance of the controversy, had to take up the difficult position that specific performance was unjust, that the injunction against enforcing a judgment obtained by fraud was reprehensible, and a number of other equally doubtful theses. Indeed, the case which precipitated the conflict forced the common lawyers to take the defence and sustain the operations of an arrant swindler. In 1616 James I personally adjudicated between the two jurisdictions and decided in favour of the Chancery, thereby showing that he was “judge over all his judges”, and Bacon hailed the vindication of the Chancery as the court of the King’s “absolute power”.

CHANCERY AND ABSOLUTE POWER

Bacon’s words certainly have a sinister sound.1 And yet there was good mediaeval authority for them—and here again we must remark that Bacon’s knowledge of the Year Books was quite as extensive as Coke’s, and his use of them more accurate. In the letter where he alludes to “absolute power” in Chancery he must surely have been thinking of this passage in the Year Book of 1469:2

“In chancery, it was remarked by the chancellor that a man will not be prejudiced by mispleading or defects of form, but only by the truth of the matter; we have to judge according to conscience and not according to pleadings.3 Thus if a man supposes in his bill that another has done him wrong and the defendant says nothing, still the plaintiff will not recover if it comes to our knowledge that the defendant did him no wrong. There are two sorts of power and process, to wit, ordinary power and absolute power: the ordinary is where a certain order is observed, as in positive law; but the law of nature has no ‘certain order’ but resorts to whatever means there are whereby the truth may be known; such process is therefore said to be ‘absolute’. . . .”

In this passage the words “absolute power” simply mean that Chancery has not yet tied itself and its suitors by the burdensome rule that matters not denied in pleading must be taken as admitted. Hence the Chancellor will consider the whole mass of facts before him whether they have been elicited in the ordinary course of pleading or otherwise. His power is therefore “absolute” because it is not confined to matters properly pleaded.

The words “absolute power” are there in the Year Book, and yet there is a world of difference between their meaning in 1469 and the Edition: current; Page: [195] use Bacon made of them in 1616. The whole incident is typical of the subtle complications introduced into the controversy by the slow change in sense of political terms—one might almost say by the tone in which they were uttered. The word “absolute” is particularly interesting from its use by Sir Thomas Smith late in the reign of Elizabeth.1

THE SURVIVAL OF CHANCERY

James’ decision, taken by itself, is no explanation for the survival of equity. As the country drifted nearer to civil war one would naturally expect to find the question reopened. Why, for example, was not the matter raised again in 1641 when the Star Chamber was abolished?

The abolition of a criminal court like the Star Chamber is very easy, and if ever it is wanted again, it is equally easy to erect a substitute—as was done under the Commonwealth when there were political prisoners to be tried. But the abolition of a civil court such as Chancery is quite a different matter. It is clear that equitable relief was necessary, and was valued; when debates took place upon the fate of Chancery it was an unanswerable argument to show the numerous sorts of fraud which equity would relieve but which the common law would almost seem designed to promote. Then, too, there were rapidly increasing property interests whose protection rested solely in Chancery. If Chancery were abolished, indescribable confusion would result, for the common law courts showed no inclination to take over the law of trusts. The question of abolishing Chancery was several times mooted,2 but in the end it took the more practical form of reforming its procedure and reducing its delays. As we shall see, however, the feeling against equity was to cross the ocean and leave its mark on American history too.

THE PREROGATIVE AND ADMINISTRATIVE LAW

An attractive suggestion has been made connecting the theory of prerogative in this period with the notion of administrative law. Gardiner, and later Dicey, remarked that the Tudor and Stuart monarchy bore a striking likeness both in theory and in practice to that of France.

“A lawyer, who regards the matter from an exclusively legal point of view, is tempted to assert that the real subject in dispute between statesmen such as Bacon and Wentworth on the one hand, and Coke or Eliot on the other, was whether a strong administration of the continental type should, or should not, be permanently established in England. Bacon and men like him no doubt underrated the risk that an increase in the power of the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens; they were struck with the evils flowing from the conservative legalism of Coke, and with the necessity for enabling the Crown as head of the nation to cope with the selfishness Edition: current; Page: [196] of powerful individuals and classes. They wished, in short, to give the government the sort of rights conferred on a foreign executive by the principles of administrative law. Hence for each feature of French droit administratif one may find some curious analogy either in the claims put forward or in the institutions favoured by the Crown lawyers of the seventeenth century.”1

These theories of the royal power found their natural expression in the Council and the Court of Star Chamber, which may indeed be compared with the Council of State (Conseil d’État) which crowns the system of administrative courts in France. It is further suggested that the old writ de non procedendo rege inconsulto was used to attain part of this purpose.2

“The working of this writ, if Bacon had obtained his object, would have been to some extent analogous to that provision which has been found in so many French constitutions, according to which no agent of the goverment can be summoned before a tribunal for acts done in the exercise of his office without a preliminary authorisation by the Council of State.”3

There is much to be said for this view. Some extremely interesting references collected by Sir William Holdsworth show how active the Council and Star Chamber were in upholding royal and local officials and in protecting them from vexatious proceedings at law, at the same time protecting the public from the abuse of official powers.4 This policy was not altogether new, however, in the Tudor and Stuart period, for precedents can be found for it in the middle ages, especially in the activities of the Court of Exchequer, which was particularly solicitous in matters involving royal sheriffs and bailiffs.5 The writ which Gardiner mentions in the passage last quoted is in fact a regular feature of mediaeval common law procedure, and Bacon’s argument in moving for the writ is an admirable example of the combination of old law and new theory. The high prerogative doctrine with which he opens soon gives way to more solid arguments based on numerous Year Book precedents, which together made his case unanswerable. The startling theory has therefore obscured the fact that the writ rege inconsulto was simply the time-honoured procedure which allowed the Crown to intervene when two subjects were litigating about property to which the Crown had a title.

The position may be summarised thus. Many of the claims of the Crown lawyers were perfectly defensible on established common law Edition: current; Page: [197] principles; but the antagonism of contemporaries (and the confusion of later historians) was created by the claims that these rights were the result of “absolute” or “prerogative” powers in the monarch, when in fact they were nothing of the sort. The result of this mistaken policy was therefore to arouse opposition to many Crown practices which would never have been attacked had it not been for this attempt to regard them as extra-legal when in sober fact they were really legal. As for the “administrative” practice of Tudor and Stuart governments, there were undoubtedly some striking innovations, especially in the direction of injunctions by the Council against suing officials at common law. But even here the mediaeval principle that officials had privileges to the courts to which they were responsible will account for much, and the practice of the Exchequer relieving subjects against the oppression of royal officers must also be regarded as evidence that “administrative” principles were no novelty in the sixteenth and seventeenth centuries.

THE COMMON LAW, SOLE AND SUPREME

The conflict with the Star Chamber and the Court of Chancery was not the only aspect of the crisis, for the common lawyers had formed the grandiose plan of making their system sole and supreme over all persons and causes.

Against Chancery they had suffered a defeat which was well deserved; their own justice was an inferior product to that of the chancellors. Against the Star Chamber and High Commission they won a victory which, on the balance, we may regard as fortunate, although here again it must be admitted that the common law criminal procedure was behind that of the Star Chamber, which did at least allow the accused to give evidence in his defence. The struggle with other rivals must now be briefly mentioned.

There was a network of ecclesiastical courts covering England which played a large part in the lives of the ordinary folk. Archdeacons, bishops, archbishops, deans and an immense variety of peculiar and anomalous jurisdictions dispensed criminal and civil justice based on canon law. For five centuries there had been a steady growth of common law restrictions upon their activities, some based upon tradition, others on statute. Writs of prohibition to ecclesiastical judges and parties were a common feature of mediaeval law and continued after the Reformation. The courts of the Church ceased to be a serious rival to the common law, and were permitted to retain their anomalous probate jurisdiction and their more natural matrimonial jurisdiction until the middle of the nineteenth century.

Admiralty courts presented a different situation.1 During the reign of Elizabeth they had maintained a fairly equal struggle with the common Edition: current; Page: [198] law courts, and in 1575 a conference resulted in a compromise. Coke, in 1606, renewed the struggle and declared that the alleged compromise of 1575 never existed. Here again the crippling of a court with established civil jurisdiction (important parts of it even being statutory) at once raised serious prospects. Foreign merchants properly protested that the common law offered them no such remedies in commercial causes as were available in Admiralty. Another conference followed in 1632 and again Admiralty jurisdiction was vindicated. The critical year 1641 saw another unsuccessful attack on the Admiralty, but slowly the common law courts usurped its jurisdiction over general commercial law and so were able to argue the Admiralty’s proper province was the remaining purely maritime business. Here at least the common lawyers did provide a substitute in their own system for the services formerly rendered by their vanquished rival. One cannot help being tempted to wonder what the course of English law would have been if they had adopted the same policy in their struggle with Chancery. If the common law had recognised trusts, and had allowed equitable defences to actions on specialties (then a much agitated question), they might have succeeded in abolishing Chancery and uniting law and equity.

In the event, however, the common law chose to cling to its traditional views of legal estates and the sacramental character of seals, and in so doing they made the continuance of Chancery essential.

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CHAPTER 10: PARLIAMENT AND THE PRIVY COUNCIL

SUMMARY page
From the Restoration to the Reform Act 199
The Jurisdiction of Parliament 200
Scotland and Ireland 201
Appeals from the Courts of Equity 201
The Position of the Commons 202
Error in the Council 202
The Authority of House of Lords Decisions 202
Criminal Jurisdiction over Peers 203
The Lords and Impeachment 204
Appeals of Treason 204
Bills of Attainder 205
The Jurisdiction of the Privy Council 205

The seventeenth and eighteenth centuries saw little change in the judicial system after the Restoration. The year 1660 was reckoned the twelfth year of the reign of Charles II, which theoretically began with the execution of Charles I. The stormy period of the Interregnum was erased as far as possible from legal memory. Its clumsy efforts at reform, the institutions which it created and the legislation it passed were swept away, and the strand of legal history was joined up again at the place where it had been broken. The authentic line of statutes came to an end even earlier, for after 16 Charles I, c. 37 (1642) no further acts were passed in the legitimate fashion by King, Lords and Commons. All editions of the statutes contain a gap between that date and the Restoration, and the legislation of the Interregnum must be sought in many scattered places. Not until 1911 were these relics collected into one single work.1 So too with reports; the meagre pages of Style, Hardres and Siderfin are only just enough to show that the common law courts struggled on under the able leadership of Chief Justice Rolle and Sir Matthew Hale.

FROM THE RESTORATION TO THE REFORM ACT

The century and three-quarters which followed 1660 are a period of rising prosperity, at least for the governing class, ending in a serious decline after the Napoleonic wars. Only the pinch of adversity was needed to destroy the contentment of the eighteenth century with its Edition: current; Page: [200] institutions. Its legislation is voluminous, but largely devoted to matters of detail which only acquire significance as precursors of the more sweeping reforms of the nineteenth century. Their importance is, however, none the less for that. There was in fact a slow, steady trend towards amelioration where practicable, but the limits of practicability were unhappily narrow, and the inertia of vested interests was immense. The fate of Lord Mansfield’s efforts admirably illustrates the difficulty of reform when all the forces of traditional learning were arrayed against it.

Some progress was made, however, by the efforts of those country gentry who bore the burden of local adjudication and administration as justices of the peace. Their labours have been well described in words which deserve quotation:1

“Parliament lacked the guidance of a central authority with broad and bold vision. On the other hand it was composed of those who were wrestling with the immediate problems and who could suggest workable expedients for tackling present difficulties. The result was a flood of statutes carrying out minor amendments in the old law and, in the second half of our period, establishing new ad hoc bodies to deal with special problems in particular areas. These policies of piecemeal amendment and sectional reconstruction went some way towards meeting the more pressing needs of the moment by adapting the law to changing circumstances and grafting modern devices on to the main stock of mediaeval institutions. In the process, however, confusion became more confounded. . . .”

These words are as true of general legal history during this period as they are of local government. They are significant for their confirmation of the view that the eighteenth century ought not to be dismissed (as too often it is) as a period of complete stagnation, and also for their indication of the class from which the larger reforms were to come in the fullness of time—from the middle class which required sound institutions in tune with its moderate liberalism, and satisfying its sense of the practical. A small and very powerful legal profession guarded the central courts against any such meddling, and so these efforts were confined to local jurisdictions and minor criminal and administrative matters.

THE JURISDICTION OF PARLIAMENT

At the other end of the scale, however, slow changes were taking place whose effects are still with us.

The earliest description of the judicial powers of Parliament which has come down to us in the famous passage in Fleta, where we are told that—2

“the king has his court in his council in his parliaments, in the presence of prelates, earls, barons, nobles and other experienced men, where doubts concerning judgments are resolved, new remedies are provided for newly arisen wrongs, and justice is done to everyone according to his deserts.”

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In the light of other evidence this passage must be interpreted as meaning that the jurisdiction of Parliament was essentially extraordinary, that it was both original and appellate, and that it was both civil and criminal. How often these powers were used during the middle ages it is difficult to determine. The earliest parliamentary rolls describe themselves as “plea rolls” and do in fact contain a large proportion of judicial business; on the other hand it is well known that these rolls are by no means exhaustive, and that Parliament actually transacted an unascertainably large quantity of business of all sorts which has left no trace on the rolls—even where rolls are extant, and in many cases they have disappeared.

The separation of the Court of King’s Bench1 relieved Parliament of a good deal of its judicial business, with the result that it became more and more a legislature and a political organ of national government. Its judicial powers were therefore less frequently invoked, and its civil jurisdiction was principally concerned with proceedings in error from the King’s Bench. Still further discouragement to litigants proposing to appeal to Parliament was due to the growing infrequency of its sessions, already marked in the fifteenth century and still more conspicuous in the sixteenth. Error in Parliament was never a very frequent proceeding, and in form it remained for centuries a matter of grace rather than of course, for a petition to the King was a necessary preliminary.2 The assent to the petition was held to be the authority upon which the errors were heard.

SCOTLAND AND IRELAND

The territorial extension of this jurisdiction has fluctuated from time to time. During the middle ages there are precedents showing that error lay from the Irish courts to the Parliament at Westminster, but doubts were raised early in the eighteenth century with the result that a statute3 declared that error lay from Irish courts to the English, and not to the Irish, Parliament. This has remained the position (with the exception of the period 1783-1800) until the present century. Error from Scottish courts lay to the Parliament of Great Britain since the Act of Union.4

APPEALS FROM THE COURTS OF EQUITY

Parliament was a common law court, and it was some time before it concerned itself with equity.5 Hence it was said in 1459 that Parliament Edition: current; Page: [202] could hear error from the common law side of Chancery but not from the equity side.1 In the early seventeenth century several attempts were made to persuade the Lords to assume this jurisdiction, but they declined to do so. After the Restoration the Lords began to hear appeals, and very slowly the controversy over their right to do so died away.

THE POSITION OF THE COMMONS

It is a common practice to refer to this jurisdiction as being in the House of Lords. It is they in fact who exercise it, but the historical character of the jurisdiction shows that we are dealing with Parliament in its mediaeval sense rather than with one of the houses—which is a post-mediaeval notion. There is very slight authority to show that the Commons ever joined in the exercise of the civil jurisdiction of Parliament, and in 1400 they actually petitioned for a declaration2 that they were relieved of this business “except in cases when it pleases the King of his special grace to show them the said judgments”. This last phrase is a sufficient explanation of the few instances where the Commons are associated with appellate proceedings.

ERROR IN THE COUNCIL

It is an interesting illustration of the close connection between Parliament and Council to note that we do occasionally find the Council engaged in proceedings in error.3 The point is neatly put in a case in 1366 where we find that one party sued to Parliament, with the result, however, that the proceedings in error thus initiated were heard in the Council, which reversed the Common Pleas; “but the justices took no notice of the reversal before the council, because that is not the place where judgments can be reversed”.4 In other words, proceedings in error are common law proceedings, and must take place in the common law court of Parliament, since no common law jurisdiction in error remains in the Council after the separation of Parliament.

THE AUTHORITY OF HOUSE OF LORDS DECISIONS

The House of Lords was singularly slow in acquiring the present authority for its decisions. The principle of precedent should logically have taken account of the Lords as the final civil court as soon as that position was in fact attained, but historically it did not. The fundamental reason, no doubt, is that the Lords were not fitted for the great place they had assumed, and in the seventeenth and eighteenth centuries Edition: current; Page: [203] their decisions received little respect. All peers were entitled to vote, and there is evidence to show that votes were cast on considerations of family alliance and personal friendship rather than of legal doctrine—which can hardly have interested unprofessional laymen.1 It is significant that no serious attempt was made to report the house’s decisions until comparatively recent times. Shower’s reports (1698), although designed to be helpful to the nobility, were actually voted a breach of the privilege which both houses claimed to prevent the reporting of their proceedings. In 1762 a text writer who introduced some House of Lords cases was threatened with similar action. Consequently, lawyers were not only unwilling, but also unable, to pay any serious attention to decisions of the Lords until authorised reporting was begun just about a hundred years ago, and it required the Judicature Act to establish the place of the Lords at the head of the hierarchy of courts and to reform its personnel so as to give its decisions the great authority which they now enjoy.

CRIMINAL JURISDICTION OVER PEERS

Like all mediaeval courts, Parliament had a special, and in some matters an exclusive, jurisdiction over its members. The Commons specially valued their famous “privileges” which belong to constitutional history; the Lords concentrated on the idea that they were members of a superior court and ought not to be tried for serious crimes in courts which they regarded as inferior. This notion was much reinforced by the growth of the conception of peerage, and so the trial of peers by their peers—a principle conveniently embodied in the Great Charter—became the distinctive badge of their order. Into the details of this curious history there is no need to enter, for it is singularly obscure, and in any case only concerns a very small class of persons. In one respect it presents a unique problem, for it is the only topic in English legal history where a Year Book has been charged with being a forgery.2

The most significant element in the trial of peers by the House of Lords is one to which we shall refer later3—namely, the fact that the Lords sit in their ancient character as a seignorial court of vassals or suitors, each one of whom is a judge, the presiding officer being the lord’s steward—in this case, the Lord High Steward of England. If Parliament is not in session, the trial takes place before the Lord High Steward, who will then hold the entirely different position of a true judge, and the Edition: current; Page: [204] Lords will be merely a jury from whom a unanimous verdict must be given. The use of either procedure was naturally rare,1 although by no means obsolete; it was abolished in 1948.2

THE LORDS AND IMPEACHMENT

Impeachment is another aspect of mediaeval courts which has become part of the constitution of Parliament.3 Once again the Lords sit as the suitors of a seignorial court under the presidency of the Lord High Steward (or the Chancellor if the charges are only of misdemeanours); the decision therefore will rest with the Lords and will be given by a majority. The Commons, however, initiate the proceedings by making their accusation, much as if they were the presenting jury in a court leet, save only that they take a more active part and through their “managers” conduct an elaborate prosecution. The procedure is not so very old, for it first appears as late as 1376, and throughout its history has been confined to political prosecutions, frequently of royal ministers. It was, however, quite independent of the Crown, which had no part in the proceedings. No instances appear under the Yorkists or the Tudors, but many examples occur under the Stuarts and in the eighteenth century; the last was in 1805. In America impeachment still exists, where it is a formal exception to the principle of the separation of powers, inherited from English practice, and preserved in the Federal and State constitutions.

APPEALS OF TREASON

Still another aspect of seignorial courts was introduced for a short while into Parliament, and that was the “appeal” or private accusation of treason or felony determinable by combat between the appellant and the appellee. Appeals were common in seignorial and county courts, and were sometimes brought in the King’s Bench, but the only examples in Parliament come from the reign of Richard II when they seemed to afford a welcome opportunity for baronial factions to fight spectacular judicial combats under the presidency of the King himself. As things turned out, no battles were fought, and the novelty of such proceedings in Parliament is shown by the doubts as to the proper procedure. At first it was thought that civil law might govern,4 and it was popularly believed that such proceedings were actually carried out Edition: current; Page: [205] under civil law rules.1 At the beginning of the next reign a statute2 was passed saying that appeals were henceforth to be governed by the ancient law of the land and were not to be brought in Parliament. A curious exception in the statute allows appeals of crimes done outside the realm to be brought in the Court of the Constable and Marshal, which later on was certainly governed by the civil law.

BILLS OF ATTAINDER

These bills are examples of King, Lords and Commons concurring in a criminal sentence whose sole justification, at least under the Stuarts, lay in reasons of state and political expediency. They began during the Wars of the Roses and were employed both under the Tudors and Stuarts, but more rarely in the eighteenth century, the last being in 1798. In some cases counsel were allowed to conduct the defence, but it has always been clear that a bill of attainder may be lawfully passed without any opportunity for defence being given. The procedure has therefore been very unpopular with Whig historians.

There was originally some reason other than mere vindictiveness for bills of attainder, since there was no common law means of trying a criminal in his absence. Attainders were therefore often used against persons who had taken refuge abroad. The effect of the attainder was much the same as that of the outlawry of the accused by the old common law process (which had become highly technical and uncertain). Even at common law one who had fled for felony would lose his chattels to the King and his lands would escheat to the lord, and his blood would be “corrupted”. The effect of an attainder was almost the same, save that the lands would go to the Crown instead of to the lord. The real abuse of attainders was their use against prisoners who were within the jurisdiction of the common law courts, and who therefore could have been lawfully tried.3

THE JURISDICTION OF THE PRIVY COUNCIL

So far this chapter has been concerned with the ultimate and extraordinary jurisdiction which passed from the mediaeval council to Parliament, and we have seen that such jurisdiction was, in principle, common law jurisdiction. The common law, however, during the middle ages was limited, and there was a fair amount of business outside its scope. Clergy and foreign merchants, for example, in practice looked to canon law and to the powers of the council to uphold their treaty privileges, Edition: current; Page: [206] while there was also the important territorial limitation which confined the common law to the body of an English county.

Now, as we have seen, the mediaeval council at the close of the fifteenth century became almost entirely judicial under its new style of the Star Chamber. Its advisory and executive functions passed to the newer and smaller body which Henry VIII organised as the “Privy Council”, and it is to this institution that much of the jurisdiction outside the common law eventually passed.1

In the seventeenth century the acts of the Privy Council show it engaged in a large mass of legal and judicial work in which it was constantly helped by the law officers of the Crown. In the reign of James I it almost seems as if the Council had come to occupy the position of its mediaeval forerunner, but after the Restoration this business would seem to have declined, and for the future it was particularly concerned with complaints—one may also say appeals—concerning the decisions of courts in the Channel Islands, the American colonies, and courts in India. The right of the Council to enjoy this jurisdiction may have been sound in constitutional theory and practice, but its remoteness in distance and in spirit from many of the disputes brought before it made its task difficult, while it was constantly reduced to impotence by the sturdy provincialism of courts which declined to recognise its authority. Like the House of Lords, the Privy Council in its judicial aspect is virtually a creation of the nineteenth century.

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CHAPTER 11: THE COURTS IN THE NINETEENTH CENTURY

SUMMARY page
Local Courts of Requests 207
The Reformed County Courts 208
The Modern County Courts 208
The State of the Superior Courts 209
The Reform of Chancery 209
The Courts of Common Law 210
The Relations of Law and Equity 210
The Judicature Acts 211
The Appellate Jurisdiction Act 212
Criminal Jurisdiction 213
Court of Criminal Appeal 213
The Profession and Reform 213

The nineteenth century is occupied almost continuously with changes in the judicial system, many of them individually of slight extent, and in the earlier half uncertain of their ultimate aim. In the middle of the century the experience obtained was sufficiently definite to make it clear that a policy of detailed readjustment was inadequate, and so the more thorough policy of the judicature acts eventually triumphed.

LOCAL COURTS OF REQUESTS

Reference has already been made to the high degree of centralisation which was reached by the common law at an early date. On the criminal side, the jurisdiction of the justices of the peace in quarter sessions and of the justices of assize provided an adequate remedy. Civil proceedings were not so well served, however, and with the decline of the local communal and seignorial courts (to some extent, at least, due to the interference of the central courts) the situation became serious. The eighteenth century attacked this problem in its own characteristic fashion. Communities which felt a special need for newer judicial organs secured special acts of Parliament, and in this way there came into existence a number of “courts of requests”. They are interesting in many ways, notably because they embodied several legal heresies which did not become orthodox until a century or more later, such as a summary procedure without juries, and the examination of the parties themselves; nor did they form a part of the judicial system, for no appeal lay from them to the central courts.1

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THE REFORMED COUNTY COURTS

The ancient county courts had seriously declined, although a few were more active than others. In any case, they had inherited many centuries of obscure technicalities which made them quite inadequate for the need of the new communities growing up as a result of the industrial revolution. A significant attempt to reform one of them was made in 1750 by an act1 which allowed the county clerk of the sheriff of Middlesex and the suitors of the county court to sit for small claims in the various hundreds in turn. It is clear that the effect of the act is not to create a new court, but to allow the clerk and suitors of the county to adopt a summary procedure for small claims and to sit in various parts of the county for that purpose. Decisions were reached by the clerk (a barrister) and the suitors together.

THE MODERN COUNTY COURTS

A somewhat similar procedure was finally adopted and applied to all the counties of England. An “act for the recovery of small debts and demands” (now generally referred to as the County Courts Act, 1846) made such radical changes that it is regarded by most writers as instituting a completely new set of courts.2 In point of fact the act takes careful precautions to make it clear that its innovations are all grafted on the ancient stock of the old county court. The fruitful idea of the Middlesex experiment in sending an officer of the old county court to tour the county for small-claim business under a summary procedure was now developed. The eighteenth-century courts of requests and courts of conscience (as they were sometimes called) were by the statute now deemed to be “branches” of the county court. Paid judges, who must be barristers of standing, were to hold, in the name of the county, courts for small claims, each judge having a group of counties within his circuit.

The novelty therefore consisted in the appearance of many new “branches” of the ancient county court for small claims. The old court was left untouched with its unlimited jurisdiction (if a writ of justicies had been brought), and is still the only place where outlawry could be pronounced. The act of 1846 confined the branches to distinctly small business, but they flourished so exceedingly that their jurisdiction has been steadily increased; in 1888 a consolidating act3 was passed, but the flood of new powers continued to flow, and at the Edition: current; Page: [209] present moment they are the most important courts in the country for the ordinary run of business. The luxuriant branches have completely overlaid the venerable stock on which they were grafted.

THE STATE OF THE SUPERIOR COURTS

The reform of the central courts was a much more difficult enterprise, for one of the greatest causes of trouble consisted in their clerical staffs. Any reform in their procedure would inevitably involve the abolition of some lucrative sinecure or at least the reduction of its emoluments. These offices constituted valuable patronage for the government or the judges (who were still paid by fees and casual profits), and their incumbents were not removable. The expense of this fantastic system fell upon litigants, who received services from these officers by no means commensurate with the fees they paid. The biting sarcasms of Dickens are amply justified by the evidence given before the several commissions which investigated the machinery of the courts of law and equity.1

THE REFORM OF CHANCERY

The Chancery had long suffered from the fact that it was in practice as well as in theory a one-judge court. As its work increased the first expedient adopted was to delegate formal and detailed business to subordinate officers, whose work was to be supervised by the Chancellor.

In the middle ages the Chancellor had at his disposition a college or community of clerks the most important of whom acquired the title of Masters in Chancery. Their duties were very miscellaneous, but with the growth of the equitable jurisdiction of the Chancellor they became more and more specialised in assisting him in its exercise. The chief of the masters, known as the Master of the Rolls, in particular was sometimes called upon to take the place of a Chancellor who could not be spared from political and state duties. By the opening of the seventeenth century the Master of the Rolls was the constant assistant of the Chancellor in his judicial work, and a good deal of controversy as to his exact position took place.2 A century later a statute3 did something, but not much, to settle a question which historical research was unable to elucidate. The old feud prevented the office of Master of the Rolls being as useful as it might have been.

In 1813 the enormous arrears in Chancery accumulated under Lord Eldon provoked the appointment of a Vice-Chancellor, but as his acts were reviewable by the Chancellor the net result was still more delay Edition: current; Page: [210] and increased arrears. Persisting in this policy, however, the Master of the Rolls was authorised to sit as a regular court in 1833 under the same restrictions—and with the same results, in spite of the fact that in 1831 a new system of courts was erected to take over Chancery’s bankruptcy business. This reduction of work was soon nullified by the transfer to Chancery of the equity jurisdiction of the Exchequer in 1841, and so two more Vice-Chancellors had to be appointed.1

Then another policy was tried. It was now evident that even the appeals from subordinate equity judges were more than one Chancellor could dispatch, and so in 1851 two Lords Justices (a new title) were constituted, with the Master of the Rolls, as Court of Appeal in Chancery, intermediate between the courts of the Vice-Chancellors and Master of the Rolls, who all sat singly as judges of first instance, and the Lord Chancellor himself.

THE COURTS OF COMMON LAW

Here the situation was somewhat different. The competition between the King’s Bench, Common Pleas and Exchequer which we have already mentioned resulted in these three courts having co-ordinate jurisdiction in many common classes of cases, although the differences of procedure between them were numerous and troublesome. The main problem was the complicated system of jurisdiction in error, for King’s Bench heard errors of the Common Pleas, and the Exchequer Chamber those of the Exchequer; a differently constituted Exchequer Chamber might hear errors from the King’s Bench, or they might go to Parliament, and still a third Exchequer Chamber was a court of discussion. The common characteristic of all the Exchequer Chambers was their delay and expense. In 1830, therefore, this tangle of jurisdictions was simplified by abolishing the jurisdiction in error of the King’s Bench, leaving it a court of first instance. The statutory Exchequer Chambers were amalgamated into one court with the same name consisting of all the judges of all three courts, it being provided that an appeal from any one court should be heard by the judges of the other two courts.2 The ultimate jurisdiction in error of Parliament was left untouched.

Thus while the Chancery was given an appeal court of Lords Justices in 1851, the common law courts were left since 1830 with a court of error consisting entirely of trial judges.

THE RELATIONS OF LAW AND EQUITY

The more harmonious relations between law and equity during the eighteenth century resulted in each system becoming closely involved Edition: current; Page: [211] in the working of the other. Chancery would send issues to be tried by a jury in a common law court, and would get the opinion of the judges on points of common law; litigants in the common law courts on the other hand would have recourse to Chancery in order to obtain discovery and other like advantages.

A symptom of this new atmosphere is the gradual introduction into common law courts of procedures and doctrines which were originally the peculiar province of Chancery. Sometimes this was the result of statute, but at times a bold decision was sufficient. The process appears early in the eighteenth century and is continuous down to the Judicature Acts, and its significance lies in the fact that the revolution effected by those acts was the culmination of a tendency which had long been at work. Thus a statute of 1706 allowed certain equitable defences to be pleaded in common law actions upon bonds under seal;1 and a decision of 1789 allowed a party in a common law court to plead a deed which had been lost or destroyed without producing it.2

This tendency was carried very much further by the Common Law Procedure Act, 1854, which required Chancery to find its own law without sending to a common law court for a judicial opinion, and to hear oral evidence and to use a jury; common law courts on the other hand were empowered to grant injunctions, to compel discovery and to admit a variety of equitable defences.

Year after year new acts made further changes in the system of procedure along these lines, and it soon became evident that the reforms, although useful, were creating an enormous body of detailed statute law with the inevitable multiplication of anomalies as defects in the acts became apparent. The mere fact that cases outside the acts began to look like anomalies helped forward the movement for a simpler and more radical remedy.3

THE JUDICATURE ACTS

Lord Selborne drafted and piloted through Parliament the Judicature Act of 1873. By it all the old central courts were abolished and replaced by a Supreme Court of Judicature, which consisted of a High Court of Justice and a Court of Appeal. To the High Court was transferred the jurisdiction of all the courts of common law and of equity, and of the courts of divorce, probate, bankruptcy and Admiralty. To the Court of Appeal was transferred the jurisdiction of the Court of Appeal in Chancery and of the Court of Exchequer Chamber. There was thus one court of appeal and one court of first instance. Moreover, there was only one Edition: current; Page: [212] appeal, for the 1873 act abolished the appellate jurisdiction of Parliament, but in spite of Lord Selborne’s efforts an amending act in 1875 restored it, and thus retained the double appeal. As we have seen, the Court of Appeal in Chancery consisted of special Lords Justices of Appeal, but the Exchequer Chamber consisted of the judges of first instance of the common courts; both principles were retained under the Judicature Acts. The Court of Appeal was to consist of Lords Justices of Appeal, but the Chancellor could call upon any judge of the High Court to sit in the Court of Appeal, and this possibility is still open, although it is not often used.

The High Court at first sat in five divisions (Chancery, Queen’s Bench, Common Pleas, Exchequer, Probate, Divorce and Admiralty—the last three topics being kept together because they were until now the concern of a special branch of the profession organised as Doctors’ Commons). In 1881 all the common law divisions were amalgamated into one King’s Bench Division. These divisions are not separate jurisdictions but merely administrative devices to bring particular types of business before judges who are particularly familiar with them. The creation of the “commercial list” is an example of the flexibility of this system.

Finally, there is the important provision which effected the fusion of law and equity.1 It is often stated that this fusion was the work of the judicature acts—which of course is perfectly true. But there would also be a good deal of truth in the converse proposition that the fusion of law and equity which had already taken place to some extent (as we have seen) was itself the cause of the judicature acts, for the synthesis of the two into one body of law could only operate effectively through a unified court.

THE APPELLATE JURISDICTION ACT

Owing to the retention of the double appeal, it became necessary to reform the constitution of the ultimate court. This was done in 1876 by the Appellate Jurisdiction Act which authorised the appointment of Lords of Appeal in Ordinary who were to be lords of Parliament for life and whose presence was required when the House of Lords was engaged on judicial business.

The appellate jurisdiction exercised by the Privy Council in the eighteenth century from colonial tribunals has already been mentioned; to this an act of 1832 added appellate jurisdiction over ecclesiastical courts in England, and the Appellate Jurisdiction Act of 1876 provided for the new Lords of Appeal in Ordinary sitting both in the Lords and in the judicial committee of the Privy Council, thus affording a valuable link between the two bodies.

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CRIMINAL JURISDICTION

Criminal law was the slowest to change. For centuries it was an unwritten axiom that a criminal trial could not be reviewed. The solemnity of jury trial was so great that it was hardly thinkable that a verdict could be set aside for any reason; and if a jury’s view of the facts was final, the court’s view of the law was almost equally decisive. A writ of error might be brought, but as the Crown prosecuted and had also the duty of issuing this writ, it followed that error could only be brought where the Crown itself was disposed to admit that the trial was unsatisfactory. A bold decision of 1705 held that the writ of error must be issued1—at least in cases of misdemeanour. Such a procedure was very capricious, at the best, for the record in which error had to be found was a highly artificial document, bearing little relation to the material points of the trial. Rather more promising was the growth of a practice of granting new trials—but again only in cases of misdemeanour.

Hence trial judges, realising how little chance there was of revising their decisions, resorted to the practice of reserving difficult cases for informal discussion among their colleagues at Serjeants’ Inn. At last, official sanction was given to this procedure by the creation in 1848 of the Court for Crown Cases Reserved. The result was not to add any new means of reviewing criminal cases, which remained exactly as before the act. Nothing was done, for example, to extend to felonies the facilities for review, meagre as they were, which existed in respect of misdemeanours.

COURT OF CRIMINAL APPEAL

Only in 1907 did a sensational case arouse public interest in a matter which Sir James Stephen and a Royal Commission had long ago considered as crying for reform.

The writ of error and the Court for Crown Cases Reserved were abolished and appeals involving law or fact were allowed to a newly erected Court of Criminal Appeal. In exceptional cases a further appeal was permitted to the House of Lords.

THE PROFESSION AND REFORM

The above outline contains the barest essentials of the great movement of institutional reform in the nineteenth century. Large and important subjects have not been treated here, and reference should be made to Sir William Holdsworth’s History for such matters as ecclesiastical, bankruptcy and Admiralty jurisdictions which were the subjects of numerous changes during this period.

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A word may be said about the attitude of lawyers as a profession to the bewildering mass of legislation which swept over them. A recent article1 has suggested (on the strength of general and professional newspapers published during the period) that the legal profession was wholly obstructionist in the nineteenth century. This is surely an exaggeration. No judgment of a profession can be fair which omits to mention its accredited leaders, whose energy and vision have always to contend with conservatism and obstructionism among sections of their followers. To correct the impression it will be enough to refer to a few among many great lawyers who devoted their abilities to the cause of reform—to Cairns, Selborne, Blackburn, Bramwell and many others.2

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CHAPTER 12: THE LEGAL PROFESSION

SUMMARY page
The Advocatus 216
Narrators and Attorneys 216
The Writ of 1292 and Legal Education 217
Education in Court 219
The Law an open Profession 220
Narrators become Serjeants 220
The Work of the Serjeants 222
Later History of the Serjeants 223
Apprentices, Barristers and Inns 224
Seventeenth-Century Changes 226
Solicitors, Pleaders and Conveyancers 226
Notaries and Scriveners 227
The Later Barristers 228
Law Officers of the Crown 228
Departmental Legal Staffs 230

It is very difficult to say at what date professional lawyers first appear in the common law system. We could hardly expect to find them until there was a settled jurisdiction with regular courts; and, as we have seen, it took some time before these elementary conditions were reached. In this, as in many other matters, it is necessary to consider the local and the central courts separately if the discussion is to be put in the right perspective.

In the ancient local communal courts there was often some specialisation along legal lines, but those lines did not at all correspond to the present organisation of the profession. Certain legal functions became attached to certain pieces of land (eventually becoming hereditary like the land), but they were apparently judicial functions. We constantly find that attendance at courts is “real” and an incident of tenure; we even find some tenants holding by the services of advising the court, or of taking part in its sessions, when particularly difficult questions are under discussion, thereby sharing the peril of being amerced if a mistake occurred. But we hardly find any trace of lawyers who make a living by giving advice to actual or prospective litigants. The only trials in the Anglo-Saxon age which we can follow in any detail are important cases involving high ecclesiastical dignitaries, and yet even they seem to conduct their cases in person. There is no convincing evidence of a legal profession in the Anglo-Saxon period.1

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THE ADVOCATUS

Even the word “advocate” is obscure in its early meaning. While the normal use of it to denote one who presents a litigant’s case in court for him is certainly old, yet it is often difficult to distinguish whether in any given case it may not mean that special protector whom churches and laymen sought in the dark ages, whose rights over laymen became a feudal seignory, and over churches the later advocatio or advowson.

NARRATORS AND ATTORNEYS

As for the central courts, for some time it seems that there were no professional advocates. Proceedings were informal, and at times (as Maitland remarked) hardly distinguishable from a family quarrel. The parties themselves presented their case as best they could before the King, who was attended by such nobles, clergy and trusted advisers as happened to be at court at the moment.

The growth of the King’s intervention, measured by the extension of the use of royal writs, had the effect that the hearings were now more commonly delegated to a group of courtiers (who in time became a regular bench), and inevitably, as soon as business was entrusted to deputies, it became necessary to confine them within a routine, a strict procedure, a set of forms and a system of pleading. These in turn necessitated the growth of a legal profession, for the public could hardly be expected to understand the newly invented office machinery of the King’s Court.

Under Henry II it is already apparent from Glanvill’s treatise that parties can appear in person or by substitute, and this “responsalis” seems already to be particularly concerned with the procedural steps of the case—the appearances, defaults, essoins and the like. Such a person may be a friend, a relative or (as often happened in the petty assizes) a bailiff. Early in the next century a fuller type of representation becomes general, and so in the time of Bracton we read much of the “attorney”, who had already proved more useful than the “responsalis”.1 The attorney is appointed by the party in court, under elaborate safeguards, and has power to bind his principal. His appearance or default is equivalent to that of his master; he has power to commit his master to a particular plea. Such a lawyer needs great integrity and diligence, although perhaps no great powers of intellect or learning other than procedural.

The attorney was a great convenience to wealthy landowners who were constantly involved in litigation and found it troublesome to appear personally, as also to ecclesiastical bodies and others, but law was becoming so complicated that the public needed further assistance of a Edition: current; Page: [217] different kind. Already in Henry III’s reign there are signs of a new type of professional lawyer. A plaintiff no longer felt confident that he could even tell his tale in court without making slips, while, as for the latter proceedings, they would certainly be even more tricky. So he would resort to an experienced narrator (or conteur as they put it in French), who told the tale for him. Very soon the narratores become a regular profession, and later still their exploits form the subject of the Year Books. On the other hand, they figure but little on the plea rolls, which are more concerned with the attorney, whose acts are binding on his principal.

It is somewhat difficult to say precisely when these two functions become the province of professional lawyers. When more plea rolls are printed it will be easy to trace the attorneys, for their names often appear in the pleadings and also in separate rolls of attorneys.1 The constant recurrence of the same names will show the existence of a profession, but at present there are few thirteenth-century plea rolls in print. The narratores are more elusive and the existing lists are conjectural—and even imaginative—for the earlier period.2 It would seem that the habit of enrolling certain details in the levying of fines (which are the source of our knowledge that certain persons were narratores) only began towards the close of the thirteenth century;3 failing this information, the reign of Henry III is necessarily represented only by casual scattered references.4

In the present state of our knowledge it therefore seems safe to say that there certainly were professional narratores and attorneys during the reign of Edward I, and that possibly these professions already existed under Henry III.

THE WRIT OF 1292 AND LEGAL EDUCATION

An inevitable result of the development of a professional element of this kind was the tendency to perpetuate itself by a system of legal education, and it is in this connection that we first find official recognition of the new state of affairs. In 1292 a royal writ was sent to Meetingham, C.J., and his fellows of the Common Bench, in these terms:

“Concerning attorneys and learners (‘apprentices’) the lord King enjoined Mettingham and his fellows to provide and ordain at their discretion a certain number, from every county, of the better, worthier and more promising students Edition: current; Page: [218] . . . , and that those so chosen should follow the court and take part in its business; and no others.”1

This brief order was evidently the result of mature reflection, for it is enrolled on the Parliament roll. The interpretation of it is not so easy. Mr Cohen’s attempt2 to simplify it by treating the word “attorneys” as an interpolation is not supported by the original roll, which is accurately printed. On the other hand, his suggestion that at this time the apprentice might, and sometimes did, act as attorney is supported by evidence,3 and the writ would indicate that both professions began with a common education.

It will be seen that this writ did not touch the existing pleaders, but merely made arrangements for perpetuating the profession by putting aspirants under the control of the court. The use of the word “apprentice” suggests that the student was attached to a practising lawyer whom he assisted in minor matters in return for instruction—such was the general nature of the apprenticeship system in the middle ages. On this point there is little light; but we soon find that the apprentices have a special enclosure, humorously called the “crib”,4 from which they could follow the proceedings in court. It is also clear that some of them were no tyros either; they will criticise the serjeants on occasion, and the earlier Year Books occasionally think it worth while to record “what was said in the crib”. The provisions of the writ that attorneys should be classified by counties were certainly put into effect, for such mediaeval evidence as exists shows that each county had its group of attorneys who confined their activities to business arising within their county. Whether this means that the attorney’s usual place of business was in the country with a town agent, or in town with a country agent, does not appear; but one of these arrangements must be presumed from the nature of the attorney’s duties.

The most remarkable features of the writ, however, are its policy of putting legal education under the direction of the court, and its promise to successful students of a monopoly of practice. The attorneys’ branch was henceforth a closed profession,5 reserved for those who had been educated to it, and admitted to it, in the official course. The fact that the writ applies to apprentices in general most probably means that it Edition: current; Page: [219] had a similar effect on the position of the narratores, although here the evidence is a little less clear.

Was this writ the beginning of legal education in England? Here we must distinguish. Even in the darkest age a few tags of legal learning persisted as part of the conventional study of grammar and rhetoric; the establishments of successive archbishops of Canterbury were an effective, if informal, school of law in the twelfth century; at Oxford there was already something like a law school in the middle of the century. The first we hear of law schools in London is that they were closed by royal edict1 in 1234, but, like the other instances of law teaching just mentioned, they can hardly have been schools of English law. London may have been in a peculiar position with regard to lawyers, for there were many courts there, or near by—royal, civic and ecclesiastical. In 1259 the writ abolishing law schools was followed by a royal grant that parties should not be compelled to retain counsel in small matters.2 Then came a reaction. In 1280 we read that the complaint is now that lawyers are not sufficiently educated—which is not at all surprising. The city authorities therefore refuse audience except to those whom they have admitted as knowing their work “reasonably well”; they further divide the profession into three branches, counters, attorneys and essoiners, each being confined to his special function.3 There is no evidence to suggest that the London bar and the Westminster bar had anything in common, but it is significant that both of them were in need of regulation and education almost at the same time.

Even manorial courts were being invaded by hired lawyers, and the tendency caused some alarm;4 the King himself shared this suspicion of professional pleaders, and in 1297 excluded them from the exchequer.5

EDUCATION IN COURT

The alternative to this system of education in court would have been education at the universities. That would have given a very different complexion to English law. Students would have learned either the civil law or the canon law, very frequently both; and would have learnt it from a cosmopolitan literature of texts and text-books. Such teaching would necessarily have been dogmatic and doctrinal, seeking principles common to many lands rather than the actual practice of any of them. If advocates trained in such schools had ever been admitted to the English bar during the middle ages, some sort of reception would have been inevitable. It must not be assumed that a reception then or later would necessarily have been a disaster—in the field of private law it Edition: current; Page: [220] might even have accelerated our progress considerably. The danger, if any there was, would lie rather in the adoption of Romanistic political theory which so frequently accompanied a reception of Romanesque law. Disaster or blessing, it is quite clear that the course of English legal history would have been very different if Edward I had looked to the universities instead of to the crowd of students haunting his courts at Westminster for the future generation of lawyers. This momentous decision had a significance which extended further even than the legal profession, as Maitland has pointed out in words which deserve quotation and reflection:

“No, the clergy were not the only learned men in England, the only cultivated men, the only men of ideas. Vigorous intellectual effort was to be found outside the monasteries and universities. These lawyers are worldly men, not men of the sterile caste; they marry and found families, some of which become as noble as any in the land; but they are in their way learned, cultivated men, linguists, logicians, tenacious disputants, true lovers of the nice case and the moot-point. They are gregarious, clubable men, grouping themselves in hospices which become schools of law, multiplying manuscripts, arguing, learning and teaching, the great mediators between life and logic, a reasoning, reasonable element in the English nation.”1

THE LAW AN OPEN PROFESSION

It is but natural that leading lawyers should begin to form marriage alliances, with the result that families arose with well-marked professional characteristics; the same thing happened among the nobility, the gentry, the merchants, and for a time even in the church.2 Nevertheless, “Edward I would not, like his uncle Frederick II, have closed the high offices of the law to all but the legal families, and so turned the class, as Frederick did the knightly class, into a caste.”3 Nor did seats in the king’s court become hereditary or vendible, as in the French parlements. As a result, the law together with the church constituted the two main avenues to fame and fortune which were open to men of outstanding ability, however obscure their origin.

NARRATORS BECOME SERJEANTS

The quiet and patient labours of the attorneys have assuredly not been without their influence on the law, but it was the more spectacular career of the newer branch that is most evident in the literature of our legal history. The narratores whose nimble fencing at the bar of the court became so essential to the success of an action at law must have seemed to the public, as well as to the students, the embodiment of all those qualities which are appreciated by lovers of intellectual combat. When the common law was still young and just setting out to extend its jurisdiction and enlarge its store of doctrine, a career at the bar must Edition: current; Page: [221] have been intensely exciting, and profoundly important for the development of the law. For some centuries they continued to be called, on certain occasions, by their old name of narratores, but in general use this term gave way to the title “serjeant-at-law”.1 The tempting coincidence that serjeanty was a tenure, that lawyers got “fees”, and did fealty to their “lords”,2 need not prove that serjeants were feudally provided with lands, although the word serjeant does seem to imply a rather more permanent relationship of employment than is usually the case with the ordinary litigant and his counsel. Indeed, even the word “counsel” suggests membership of a “council” such as great nobles retained during the middle ages to guide them in the management of their affairs.3

The word “serjeant” not only excludes merely casual engagement, but also lays stress on the employer. A serjeant is the serviens of someone, and it is a difficult problem to determine of whom. The Statute of Westminster I in 1275 speaks of “serjeant counters”, but the form serjeant-at-law as a settled title (and not merely as a description) is hardly earlier than 1310, and as it occurs at that date in a writ4 from the King commanding William Herle to “take the state and degree of serjeant at law” it has been argued that a serjeant was so called because he was the King’s serjeant. “The servientes begin and end as servientes regis; other people employ them and regis is dropped.” The fact that the Crown as early as 1310 (if we can trust to Coke’s memory) began to appoint “serjeants” just at the moment when the word becomes commonly associated with lawyers, lends a good deal of support to this theory. On the other hand, there is the difficulty of explaining how it was that serjeant became co-terminous with narrator: can it be that the Crown retained the whole bar?5 In the fifteenth century we have only serjeants and apprentices, with no intermediate grade;6 what then had become of the narratores? If we are not bound to hold that all serjeants were the King’s serjeants,7 then it is easier to account for the change as merely a change of style.

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THE WORK OF THE SERJEANTS

The functions of the serjeant are easily distinguished from those of the attorney. The arguments, the clever altercations which at this period seem to be conducted ex tempore (later they will be committed to writing with great particularity as written pleadings), the offering of exceptions and answering them, the groping through masses of doubtful facts and uncertain law in search for a safe point on which to take issue, the arguments upon the inevitable faults in process, and upon the legal consequences of an ascertained state of facts—all this is the highly skilled work of the serjeants. To it they brought various and profound legal learning above all, supported by quick wit, resource and ingenuity—sometimes even a clever fallacy may be tried; but the bench consists of men who have already passed by the bar, and from the Year Books it is clear that the court was not easily fooled, and good-naturedly it would sometimes remind a serjeant so. Once when an extra subtle point was raised, the court was unimpressed; the judge remembered that he himself had once resorted to it while at the bar taking a case for which there was nothing better to be said.1 The court constantly declined to be lured into discussions too far removed from the question judicially before it; it would sometimes close a discussion where it suspected that the apprentices had manufactured a difficult case for the sake of enjoying the arguments upon it.2 Even a bona fide case involving difficult questions would be adjourned term after term until the parties found a compromise, rather than allow the court to be enticed out of its depth. The proceedings were therefore as practical as contemporaries could make them; no unnecessary pedantry or cleverness, and above all no oratory. Nowhere during the middle ages do we find a trace of rhetoric in the English courts. True to their administrative origin, they kept themselves in a strictly business attitude. It is only after the Renaissance that we find the bad old classical tradition of Greece and Rome which turned lawsuits into an oratorical contest appearing in England.

The earliest Year Books show us the serjeants conducting these altercations (which later are so carefully arranged by counsel in written pleadings) orally in court, and apparently with little previous knowledge of what lay behind them or of which way they would turn. It seems that there was always room for surprise, and that each side did its utmost to conceal the facts from the other side. From this it will be seen that a successful serjeant depended upon quick thinking in order to understand his own case and his opponent’s, for it would seem that hardly any work was done on a case before it came into court. It is not surprising, therefore, that the group of serjeants practising in the last years of Edward I was small, very busy and amazingly clever. As we shall later see, the Edition: current; Page: [223] Year Books of this period are full of admiration for the brilliant serjeants whose feats of intellect are there recounted, and the modern reader can entirely share that feeling; from 1290 to 1310 there was a very brilliant bar in England.

As we have seen, the early serjeant was rather in the dark about his case until he had wrung a few admissions from his adversary. Consequently, what a serjeant said might or might not correspond to the facts of the case. Those facts are in the knowledge of the party but not of his serjeant, unless he has seen fit to enlighten him. So when there is a chance that an alleged state of facts may be material to the decision of the case, the serjeant has to “get himself avowed”, that is to say, procure a confirmation or denial by the party or his attorney of the statement made by the serjeant. The party therefore has the advantage of a second thought before he finally commits himself to the line of action proposed by the serjeant.

The serjeants from the beginning held a high place in the legal world; we soon find Parliament referring hard questions to the serjeants as well as to the judges, and quite early in the fourteenth century the Crown adopts the policy of recruiting the bench from the outstanding men at the bar. Wherever this policy has been thoroughly adopted, the result is a remarkable relationship of goodwill and understanding between judge and barrister, which permits of real co-operation in the administration of justice. A spirit of hostility or distrust between bench and bar, on the other hand, inevitably adds to the length of proceedings, without improving the quality of the product.

LATER HISTORY OF THE SERJEANTS

In the course of the fourteenth century the serjeants consolidated their position, becoming a close guild in complete control of the legal profession. Within their fraternity are united the bench and the leaders of the bar; the junior practitioners (who have developed out of the old class of apprentices) are outside the guild but under its supervision, and so too is the whole system of legal education. By the close of the fourteenth century the judges are all members of the order of serjeants, and serjeants alone can be heard in the principal court, that of Common Pleas. Their dignity increased with their emoluments, which must have been enormous; they ranked as knights and surrounded themselves with elaborate and costly ceremonial. The creation of a serjeant obliged him to provide a feast comparable to a king’s coronation, to distribute liveries and gold rings in profusion, and to maintain the proceedings for seven days. Their numbers were always low, as can be seen by the fact that every serjeant had his own pillar in St. Paul’s Cathedral which served him as office and consultation room.1 The fact that apprentices Edition: current; Page: [224] were able to sustain these heavy charges and to become serjeants indicates that they too did not labour without reward. In the middle ages counsel conferred directly with their clients, and contracts for fees were enforceable in law. The serjeant’s dress varied considerably at different dates, the most constant element being the coif, a close-fitting cap of white silk or linen fastened under the chin; hence the term “order of the coif” for the guild of serjeants. For the rest, they used on solemn occasions a long robe with short cape and hood which was party-coloured, the left side and the right being of different colours. In later times they wore on ordinary occasions a red robe (somewhat like the present judges’ scarlet robes, but without the fur), and later still, black. All these (like academic and most other robes) were derived from what used to be the ordinary civilian dress in the middle ages. No part of English judicial costume is of ecclesiastical origin, as is sometimes erroneously stated.1 In 1877 the order was dissolved, Serjeants’ Inn sold, and the proceeds divided among the surviving members.

APPRENTICES, BARRISTERS AND INNS

When the writ of 1292 speaks of “apprentices” it is clear that it means literally learners; but it is equally clear less than a century later that the term has ceased to be appropriate and that its meaning has radically changed. In the assessments for Richard II’s poll-tax of 1379 “every serjeant and great apprentice of the law” is taxed at the same rate as a baron, “other apprentices following the law” pay only half, and “all the other apprentices of less estate” one sixth.2 Great apprentices are therefore as wealthy as serjeants, barons and aldermen of London. Similarly, when a commission to inquire into the possibility of legal reforms was appointed in Parliament in 1381 its composition was fixed at eight members—two justices, two serjeants and four lawful apprentices.3 These apprentices were therefore men of eminence in their profession, competent to give the government useful technical advice, and some of them were of sufficient substance to be taxed on the highest scale of the profession, on a par with the bulk of the nobility.

Another curious anomaly. When Fortescue wrote in the fifteenth century he likened the serjeants to the doctors in the universities. There was indeed an external resemblance, perhaps the result of deliberate imitation. The red robe, the coif (equivalent to the doctor’s hat), the costly feast on taking the degree, the requirement of having delivered two readings—are all closely parallel to university traditions. But in essentials there was a grave difference. The degree of doctor entitled one to teach, but the degree of serjeant was actually a disqualification. Edition: current; Page: [225] If the doctors of the common law did not teach, however, the “students” did, and so we have the curious fact of legal education being conducted by apprentices.1

Their life centred in the Inns of Court, which, like a university, provided for their general education and common life. Here they studied law and many other things—history, music and dancing, for example—and this full and fashionable education made the Inns a great resort for the youth of wealthy and noble families, even although they had no intention of practising law. In the beginning of the seventeenth century it was in the Middle Temple Hall, before the Queen and a fashionable audience, that Shakespeare’s play Twelfth Night was first performed. There were more than a dozen such inns, and during the fourteenth century the apprentices changed their quarters many times, leasing first one inn, then another. In exactly the same way came into existence some of the halls at Oxford and Cambridge. It may be that these groups of apprentices formed round some senior master who headed their community and directed their studies, while the bench approved the arrangement and permitted the master to choose those whom he considered fit for call. The largest of these inns were Lincoln’s Inn, Gray’s Inn, the Middle Temple and the Inner Temple, but their early history is largely conjectural. Of the numerous smaller inns (which have not survived), even less is known with certainty. In time, the inns acquired a roughly uniform type of constitution; the benchers formed a governing body somewhat similar to the fellows of a college at Oxford or Cambridge, while the readers conducted an elaborate system of legal instruction. It was from among the readers that the serjeants were chosen. Next below the readers came the utter (or outer) barristers,2 who were the most notable rank among the apprentices and were privileged to argue in the mock trials or moots3 which were staged for the instruction of the students. Below them were the inner barristers, who soon are known simply as “students”. There were also some professional attorneys, until in the later middle ages they were excluded from the Inns of Court. As numbers grew, subsidiary inns were formed subject to one or the other of the four great inns, and these were called Inns of Chancery;4 finally these Inns of Chancery were reserved for attorneys and solicitors only.

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SEVENTEENTH-CENTURY CHANGES

Coming to the seventeenth century, we find that numerous developments took place. The class of attorneys rapidly grew. The barrister now looked upon the attorney as a superior sort of clerk; this was justifiable, for the attorneys were now regarded as technically part of the clerical staff of the courts. For this reason, the attorneys were the more likely to be in contact with the client, receiving his instructions and only consulting a barrister when difficulties arose. Attorneys therefore did the bulk of the more straightforward conveyancing and drafting of pleadings, while the barristers acted as consulting experts. In this way, the attorney was actually the client of the barrister, rather than the layman who had first engaged the attorney. The barrister asserted a social superiority by declining to sue for his fees (the rule appears in 1629-1630), although attorneys continued to do so. In the meanwhile, many students of the Inns of Court specialised in pleading and conveyancing, and practised as members of new sub-divisions of the legal profession as “pleaders”, “equity draftsmen” and “conveyancers”. There was no need for such men to be called to the bar, and as a rule they were not. They were therefore described as “practitioners under the bar”; generally they were members of an Inn of Court, however, and therefore subject to the inn’s professional discipline. The attorneys, on the other hand, being thrust out of the Inns of Court in the middle of the sixteenth century,1 were in a difficult position, until about 1729 we find that a “Society of Gentlemen Practicers in the Courts of Law and Equity” was established for their government and protection, together with the solicitors.

SOLICITORS, PLEADERS AND CONVEYANCERS

The courts of equity—Chancery, Star Chamber, Court of Requests—were differently organised. The permanent clerical establishment of each of these courts undertook the duties of attorneys, and so professional attorneys had no place there. Still, there remained numerous duties of a quasi-legal character which had to be done, and litigants soon found it convenient to have a sort of law agent who would set the complicated machinery in motion by engaging and conferring with the various branches of the profession as occasion required, and doing other duties, sometimes of a legal and sometimes of a business character. These were the “solicitors”. When they first appear in the fifteenth century they seem more business agents than lawyers, but by the seventeenth century they have won a place beside the attorneys and a recognised standing, especially as practising in courts of equity.

During the eighteenth century these various branches continued to exist side by side. An act of 1729, subsequently renewed, imposed Edition: current; Page: [227] regulations upon attorneys and solicitors, and formed the basis of future development.1 At the same time the act imposed rather heavy taxation upon these practitioners. By the nineteenth century, the solicitors gained a definite lead over the other branches of the profession, and although there were still a few conveyancers and pleaders licensed to practise, the profession for all ordinary purposes in England now consists of two branches only, barristers and solicitors.

Sir Frederick Pollock has made an interesting suggestion that the development of the profession in the eighteenth century had been influenced by the fact that Roman Catholics were prevented by the Test Act2 from practising at the bar. Instead of becoming barristers, therefore, Roman Catholics who took to the law practised as pleaders and particularly as conveyancers. A famous example is Charles Butler, and the last of a distinguished line of Catholic conveyancers was H. W. Challis, who died in 1898. Sir Frederick concludes:

“Whether their real property doctrine was at all coloured by scholastic methods, I do not know. The probable influence of the Schoolmen on mediaeval pleading has often been pointed out. In fact my late friend Mr. H. W. Challis, the most acute of recent real property lawyers and second to none in learning, was a disciple of Cardinal Newman’s for some years. So there would seem to be some subtle affinity.”3

Even at the present day the scale of costs to which solicitors are entitled is complicated and archaic, bearing striking witness to the fact that in origin the solicitors were more concerned with running errands and doing clerical work than with advising clients on general legal problems. By modern statutes solicitors have acquired the right of audience in the inferior courts.

NOTARIES AND SCRIVENERS

Of the other branches of the legal profession below the bar the only one which survives is that of the notary, which in England is of slight importance, except for foreign and ecclesiastical matters. In 1884 it was stated that there were only forty-eight notaries in England.4

The scriveners were originally scribes, but soon undertook to draft for the public the commoner sorts of deeds—especially bonds. They often acted as intermediaries between borrowers and lenders, and themselves earned an unsavoury reputation as merciless usurers. For a moment the scriveners seemed likely to become professional conveyancers, but the other branches of the profession withstood them, and Edition: current; Page: [228] eventually they turned to the more lucrative, if less learned, parts of their traditional work.1

THE LATER BARRISTERS

A few words must now be said upon the later developments which took place among the barristers. The exclusive right of audience which the serjeants enjoyed in the Court of Common Pleas was one of the causes of the attempts made by other courts, especially King’s Bench and Exchequer, to enlarge their jurisdiction so that matters originally cognisable in the Common Pleas could be determined in these other courts without resort to the expensive services of a serjeant.2 These attempts were highly successful and upon their success was built the development of the barristers’ position.

LAW OFFICERS OF THE CROWN

Far from being merely an “apprentice”, the barrister had now ample opportunities for practice in courts of equity and common law, and the Crown itself began to offer dignified offices to barristers just as in earlier times certain serjeants, called King’s serjeants, had enjoyed a preeminence in their order. Two of these offices—those of Solicitor- and Attorney-General—are of special importance, and something must be said of their history.

All through the middle ages the Crown employed a considerable number of attorneys to represent it in the various courts, and in 1461 we find the appearance of a “solicitor” as well. It is clear that these officials performed the same duties for the King as they would have done for private clients, with the sole difference that the Crown could give them much more business, and so the royal solicitors and attorneys had greater opportunities for making profits. In the course of the fifteenth century these numerous attorneys were replaced by a single attorney (later called the attorney-general) who had the right to appoint deputies; he therefore became something like a permanent official with a staff of assistants. But even so, it was a long time before the attorney-generalship came to be filled by men of any eminence. Until the middle of the sixteenth century promotion to the bench was the exclusive privilege of the serjeants, who considered the offices of solicitor-and attorney-general beneath the dignity of their order. When these offices became too important to be held by mere solicitors and attorneys, it was therefore the barristers and not the serjeants who aspired to them. Moreover, after the middle of the sixteenth century we find with increasing frequency that attorneys-general are promoted directly to the Edition: current; Page: [229] chancellorship or to the chief justiceship of one of the benches (a practice which is still generally followed), thus leaving the serjeants with only a puisne judgeship in view.1 As long as the order of the coif lasted, however, membership of it was still a technical requirement for a seat on the bench of a common-law court, and so an attorney-general who was promoted chief justice of either bench was simultaneously created serjeant in order to qualify for it.

From 1530 we find the custom established of appointing the King’s solicitor to succeed the King’s attorney upon a vacancy in the latter office, and this is still the general practice at the present day. These two officers soon began to extend their functions and acquired the position of general legal advisers to the government; in Elizabeth’s reign we already find her solicitors elected members to the House of Commons (or else summoned to the House of Lords—occasionally both) in order to explain and defend the government’s legal policy before the House. For a long time, however, the House of Commons declined to allow the attorney-general to be a member, fearing that the influence of the Crown in the House would thereby be enhanced to a dangerous degree. Objections gradually ceased after the Restoration, and after the Revolution the attorney-general was regularly elected a member of the House of Commons, but his summons to the House of Lords had become a mere formality.

The rapid rise in importance of these officers is largely due to the fact that the mediaeval King’s serjeant was no longer big enough to cope with sixteenth-century conditions. The rise of new courts and the extension of the jurisdiction of old ones had far outgrown the limits within which the serjeant cared to act, and his ancient monopoly was now in fact an irksome restriction. Indeed, the position of the law had changed considerably under the Tudors. Justice was no longer the exclusive concern of judges and serjeants, assisted by the humble attorney. It was now an affair of state requiring constant attention from the Crown, which was viewing with some anxiety the activities of its courts. The Reformation settlement brought with it numerous questions which had to be settled in the courts—questions of land titles arising out of the dissolution of the monasteries, questions of criminal law created by the insecurity of the dynasty, and still more difficult questions of constitutional law due to the inadequacy of the mediaeval financial system. All these problems needed a newer point of view than that of the serjeants complacently resting on their monopoly. As we have already noticed, there was a chance of the Crown turning to the civilians for exponents of a newer technique of law and government; but in the end a sort of compromise was worked out. The attorney- and solicitor-general served as links between the executive and the legal system, and the practice of promoting the attorney-general to the Edition: current; Page: [230] highest judicial offices ensured the presence on the bench of men who had not merely a legal training such as that of the serjeants, but also experience of government gained in the inner circle of politics. In this way the law was brought once more into vital contact with the world of affairs and politics. That contact was necessary if the law was to continue as a growing system, but the dangers were of the gravest, as the history of the Stuart judiciary will show.

A single attorney-general and solicitor-general were, of course, unable to deal with the mass of business created by the sixteenth-century State, and it therefore became necessary for them to secure a more or less permanent staff of assistants. We therefore find the rise at the same time of the class of “King’s Counsel Learned in the Law”. These were barristers upon whose services the Crown had a prior claim, and their duties were largely to assist the attorney-general and solicitor-general when called upon. They ranked next below the serjeants in Elizabeth’s reign and already had regular precedence and seats in Parliament upon the woolsacks. It was Bacon who did a great deal to define the position of the King’s Counsel and secured for them a life fee. By the close of the eighteenth century, however, the tendency was to regard the title of King’s Counsel as merely a mark of distinction with purely nominal duties.1

DEPARTMENTAL LEGAL STAFFS

The eighteenth century saw the creation of numerous commissions and boards for the conduct of national administration, and they naturally looked ultimately to the law officers of the Crown for their legal assistance. For ordinary matters, however, they soon felt the need of the exclusive services of a legal staff of their own, and so we find them appointing solicitors to assist them. The oldest and most important of these is the Treasury Solicitor, whose office dates from about 1655. He often acted for other departments besides the Treasury,2 and by statute other similar offices have been amalgamated with his; thus he became Director of Public Prosecutions for a time,3 and is still King’s Proctor.

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CHAPTER 13: THE GROWTH OF THE JUDICIARY

SUMMARY page
The Office of Judge 232
The Appointment of Judges 234
Pateshull and Raleigh 235
Clerical Judges and the Civil Service 236
Judges and the Legal Profession 236
Judges drawn from the Serjeants 238
The Scandal of 1289 239
Lay Judges: Bereford 239
Judges and Politics in the Fourteenth Century 240
The Wars of the Roses 241
The Tudors and the Judges 242
The Struggles of Coke and Bacon 242
Coke as Chief Justice 243
Bacon as Chancellor 244
The Restoration: Holt 245
After the Act of Settlement 248
Mansfield 248

Amid all these changes, one thing remained constant, and that was the immense influence exercised by the judges, which was all the greater in view of the fact that before reaching the bench they had already achieved distinction at the bar, either as serjeants or barristers and King’s Counsel, and in some cases had been solicitor- or attorney-general. From one point of view quite a good deal of the history of the common law could be written in the form of a chronological series of biographies of the leading judges. Except in the case of the comparatively small number of judges, such as Coke, whose life is a part of the general politics of the day, the actual biographical details are of little importance. Most legal careers run upon a regular pattern: student days, the call to the bar, the growth of practice, the tenure of public offices and the rise to the bench—all these follow in regular course in the lives of most of the great judges, and there is no point in trying to remember all these details. It is much more important to try to ascertain the peculiar gifts and qualities of each judge, and the incidents in his career which contributed to the formation of his character and mental outlook. In the light of all this it would become possible to evaluate his contributions to the law; but unfortunately not all of the judges have been blessed with biographers of sympathy and imagination Edition: current; Page: [232] The present chapter will be devoted to biographical sketches of the principal common law judges; the Chancellors will be similarly treated when we deal with the history of equity.

THE OFFICE OF JUDGE

In the first place, however, there is the difficult problem of the evolution of the office of judge. Our earliest courts, according to the prevailing opinion, consisted of suitors who constituted the court and rendered its judgments. This tradition, developed in the communal courts, was continued by the feudal courts, whose suitors were bound by the condition of their tenure to render this “service” to their lords.1 In important matters the lord himself might preside, but more generally it was his steward who “held” the court. We have also seen that even the King’s court was at first of this nature;2 how then did the more modern type of court consisting of a judge come to supplant the ancient system?

This transformation took place late in the twelfth century and appeared first in the King’s courts. The details seem to be no longer recoverable, for that period has left but scanty records; all the same, it may be possible to suggest what happened by studying first the repetition of the process which took place much later in the history of the House of Lords. The ancient curia regis, consisting of household officers, officials of state, lawyers, prelates and nobles, has survived as the House of Lords with singularly little formal change in spite of its adaptation to more modern conditions. Of ceremonial survivals we have already spoken, but even more striking than these is the continued function of the House of Lords as a court of law. Its original jurisdiction was still exercisable in the ancient manner—that is to say, the House sat as a court consisting of suitors, every member of which took part in forming the judgment of the court, irrespective of his qualifications as a lawyer. The trial of peers and impeachments were of this character. It is indeed a curious reflection that the ancient conception of a court of suitors should have lasted, not merely as a historical survival in the House of Lords, but also as a fairly frequent procedure in cases of impeachment in America, although Europe began to abandon it in the twelfth century.

The jurisdiction of the House in error is partly an outcome of the Edition: current; Page: [233] fact that Parliament is the ultimate court, and partly of the fact that the King himself is there surrounded by all the talent of the realm to resolve difficulties and to supervise all the organs of government, both judicial and administrative. For centuries there has been a natural antipathy between the public and the functionary, between the baron and the official. It is but natural, therefore, that there should be some question whether the judicial powers of Parliament should be exercised by the lords or by the councillors. Once again the older principle prevailed, and the whole House maintained its ancient constitution as a court of suitors. And so it remains to-day in theory. Certain modifications have been introduced, however. Before the Act of 1876 the House frequently consulted the judges, and generally (though not always) accepted their opinion. Lay peers ceased to vote upon appeals1 in 1844, and in 1876 the Appellate Jurisdiction Act required the presence of certain law lords when appeals were heard. That act did not exclude lay lords from participating, and it was as late as 1883 that a lay lord’s vote was for the first time held void.2

The nineteenth century was probably repeating unconsciously what had been going on in the twelfth. There were several factors in that history. First, there was the powerful example of the ecclesiastical courts which consisted of judges—generally, in this period, single judges. Then there was the strong trend towards administrative forms which had already transformed certain sessions of the curia regis into the highly professional Exchequer. The success of that institution must certainly have strengthened the tendency towards professionalism in the King’s Court. Then there was the similar success of the judicial eyres. These were at first no doubt regarded as meetings of county courts presided over by royal commissioners,3 but the county itself so often fell under the displeasure of the commissioners that there can be no doubt that the eyre soon became in substance a court held before judges rather than before suitors.

Again, suit of court, whether of local courts or of the King’s own court, was an expensive burden, and agricultural pursuits do not leave much time for distant travel and prolonged absences. In many county and seignorial courts4 the statutory permission for suitors to attend by attorney must have compelled the steward to assume truly judicial functions if the courts were to meet with the accustomed frequency. Indeed, the reluctance of people to admit themselves suitors might lead the court’s owner to appoint judges to serve in their place. Thus the burgesses Edition: current; Page: [234] of Bury St Edmunds and the abbot’s council affirm that there is no question of suitors there, but that the abbot by his letters patent appoints judges to hear and determine suits.1 In the King’s Court the rapid increase of business would have needed almost permanent assemblies of barons for its dispatch if the old system was to endure. The solution was found in 1178 in the establishment of the five whom we have already mentioned;2 at first perhaps they acted as a sort of sub-committee of the whole curia,3 but the mass of business before them, and their success in handling it, must very soon have established them as true judges of a court of the new model.

Even this device only brought temporary relief; there was still constant recourse to the parent body—the King himself in his court, and there too the process was repeated when justices were “assigned to hear pleas before the king himself”. Once again, the result was a new bench of judges, and again it was possible to explain the anomaly by regarding them as a committee of the curia regis. In Parliament itself, as we have just seen, the process was slowest, being only completed within the last few generations. In logic the distinction between judges and suitors is perfectly clear, but in practice it is probable that the novelty of the new benches was obscured by the fact that they were regarded as deputies for the larger curia. As we have already seen, the connection between the judges and the council in Parliament was at one time very real.4

With the establishment of the Court of Common Pleas, the decisive step was taken: the future of the common law was put into the hands of judges.5 Everything will therefore depend on the mode of selection of these judges, and the position assigned to them.

THE APPOINTMENT OF JUDGES

Several possibilities were open, but in the later years of the twelfth century there was little room for hesitation. The judges were drawn from the small group of royal clerks who constituted the nascent civil Edition: current; Page: [235] service. Their names are in many cases unknown, but their work was well done in the great tradition of Norman administration. At their head was often a justiciar who seemed to his contemporaries second only to the King in power and dignity. His duties, military, civil and judicial, were the product of the unseparated powers of the King himself. The justiciar is best regarded as a prime minister when the King was present, and as a viceroy when he was abroad. In the twelfth century, therefore, it is impossible to distinguish the lawyer from the statesman and the politician; men such as Glanvill and Becket, Lanfranc and Hubert Walter, must have had considerable influence upon legal development, but still we can hardly describe them as lawyers, or judges.

PATESHULL AND RALEIGH

In the early years of the thirteenth century it is easier to recognise the beginning of the modern judiciary in the great judges, Pateshull and Raleigh, whose judgments were the inspiration of our first great law writer, Bracton. Martin de Pateshull1 was Archdeacon of Norfolk and Dean of St. Paul’s; he became a Justice of the Bench in 1217 and was constantly employed upon judicial Eyres. So active was he that one of the clerks, on behalf of himself and his colleague Raleigh, complained to the Justiciar of the way in which Martin worked his colleagues from sunrise to sundown. When he died in 1229 he had gained the reputation (at least with Bracton) of being the finest lawyer in England. More than sixty years after his death, litigants asked that Pateshull’s rolls be searched for precedents, so highly were his judgments esteemed.2

William de Raleigh was rector of Bratton Fleming in Devon, which was perhaps the birthplace of Bracton himself. In any case, one Odo de Bratton was his vicar. Raleigh began his legal career as clerk to the great Pateshull (and it is quite possible that young Henry de Bracton began in his turn as Raleigh’s clerk3). In 1228 he became a Justice of the Bench and in 1234 treasurer of Exeter Cathedral—of which Bracton was later to become Chancellor. In 1238 he was bishop-elect of Winchester but did not gain possession until 1244 owing to opposition from a rival candidate promoted by the King. He died in 1250. He seems to have been one of the most important promoters of the Statute of Merton, from which we learn that he strongly supported the barons in their refusal to “change the laws of England” by adopting the canon law rule of legitimation by subsequent marriage. A cleric who held high ecclesiastic preferment could therefore take an independent view, and reconcile his orders with a nationalist outlook; because a man Edition: current; Page: [236] was a cleric it did not necessarily mean that he would favour the canon over the common law.

CLERICAL JUDGES AND THE CIVIL SERVICE

These thirteenth-century judges, like most of the clerks and officials, were technically “clergy”. This does not imply that they undertook parochial or diocesan duties; as a rule they were not priests nor even deacons, but had received one of the lowest orders. But however low their orders, they were still able, lawfully or unlawfully, to hold rich benefices, receiving the emoluments and appointing deputies to carry out the pastoral duties. This was a regular way of making provision for civil servants in the middle ages, for the Church was rich and the King comparatively poor. Salaries were indeed attached to many offices, but they were small and payment of them was irregular. The judges frequently had to complain that their salaries were several years in arrear. Moreover, the fact that many judges in this period were clerics must not be taken as evidence that they were also canonists. Canon law, like theology and philosophy, was one of the Church’s great contributions to civilisation, but it must not be supposed that every clerk in minor orders was a canonist, any more than that he was a theologian—or a saint. Many ways of advancement were open to an able and ambitious cleric—theology, canon law, ecclesiastical politics, diplomacy, finance, the royal civil service, and as part of the last-named, service in the royal courts of law. But it is unsafe to say that any mediaeval cleric was a canonist unless there is some direct evidence; it certainly cannot be presumed. In any case, we already find at the middle of the century a few knights on the bench, and at the close the proportion of lay judges steadily increases.

JUDGES AND THE LEGAL PROFESSION

During most of the thirteenth century, therefore, the bench was part of the civil service. Moreover, this same period saw the rise of a group of practitioners before the King’s courts which was small, active, learned and (like the court itself) centralised. Although the material traces of their organisation come from a later date, we can hardly escape the conclusion that this group of expert pleaders was united by something like a professional spirit, its members being in constant and intimate contact with one another, and drawn together by their common interest in the law and procedure of the King’s Court. In such a state of affairs there must arise the question of the relations between bench and bar. Not only is there the purely formal relationship to be settled, but there is the even more fundamental psychological attitude of bench and bar to be considered. When the same half-dozen judges are constantly being addressed by the same score or so of practitioners, these two small groups cannot help influencing each other. Edition: current; Page: [237] The practitioners will be constantly comparing the decisions of the court, taking notes of them, and endeavouring to reduce them to consistent principles. However much the bench might be tempted to handle cases in the spirit of administrative discretion, the small, vigilant body of pleaders with long memories and ready tongues are there to protest that decisions ought to be consistent and that settled courses of practice ought not to be disturbed. Much depended upon the personality of the judges, and some of the earlier members of Henry III’s bench were men of outstanding ability, as we have just seen. As we approach the great political crisis of the middle years of the century, however, it is clear that the situation has changed. Both Bracton and the baronial opposition openly accused the judges of ignorance and corruption—charges which were brought against other branches of the civil service as well.

Officialdom was under a cloud, and the result was momentous. If the old system had persisted, and if the judges had continued to be members of the civil service, with different careers from the bar, we should have had in England (and probably in America too) something like the system prevailing in several continental countries to-day. According to this system, the young lawyer has to decide very early in his career whether he will go to the bar or to the bench. Naturally, these two careers attract different types of men. At the bar the competition is severe, progress slow, but success brings considerable wealth and great social and political influence. Brilliant and adventurous men are attracted by a career at the bar. A candidate who elects for the bench has very different prospects. He has a salary instead of prospective profits, certainty instead of a gamble. His first post is in a petty court in the provinces; like other functionaries, satisfactory service will bring him advancement from lower to higher courts, from distant towns to the metropolis. The mentality which such a career attracts is very different from that of the advocate, and the result is that bench and bar are divided by differences of interest and training.

The movement away from the civil service element in the administration of justice at the end of the thirteenth century led to an experiment in a different direction. Instead of recruiting judges from the ranks of officialdom, recourse was had to the bar. Even here there were at least two possibilities. Among the canonists at this moment the pope had become not only the ultimate court of appeal, but also a court of first instance as well. Litigants went direct to the highest tribunal of the Church. In practice this meant that the pope appointed delegates to hear the case, and these delegates were appointed ad hoc from among eminent practitioners. We did in fact have this same system in England some centuries later in admiralty and in ecclesiastical causes. Under such an arrangement there were no permanent professional judges, but simply a bar whose members might be advocates at one moment and judges-delegate at another. Dickens has given a vivid picture of Edition: current; Page: [238] the red-robed doctors of law who practised under this system in England, just as the canonists and civilians did in the middle ages. There are traces that in some cases at least we might have adopted this arrangement. It was in fact a common practice for the King to appoint special commissioners to hear particular cases which had been brought to his attention. Criminal matters could be heard by special commissions of oyer and terminer consisting partly of notable laymen and partly of professional lawyers. This system did not become general in England, however, and the principal reason must be that the hierarchy of courts one above the other had become too well established to be disturbed in favour of a method which implied that all jurisdiction was exercisable by the King. Such a theory would only fit English facts if it was qualified by the reservation that portions of this jurisdiction had been permanently delegated to the courts and that there could be no question of revoking the powers granted to the King’s Bench and Common Pleas.

JUDGES DRAWN FROM THE SERJEANTS

Hence the only remaining way of combining the permanent courts with the legal profession was to choose the permanent judges from among the serjeants (who for the moment were the branch of the profession which mattered most).1 The system has persisted, with very little modification, to the present day both in England and in all jurisdiction where the common law prevails. Its great characteristic is the intimate connection between bench and bar. In the middle ages this was emphasised by the fact that the serjeants during term time lived together in their inns and discussed their cases informally together simply as serjeants, without distinction between those on the bench and those at the bar. Even with the rise of newer branches of the profession, the decline of the serjeants and the rise of the attorney- and solicitor-general, the same fundamental situation remained. The judges had passed through the same career as the bar; they had achieved success in the same keen competition, and were therefore generally the equals of the best men at the bar; their point of view and their conception of law were derived from their experience as advocates instead of being the product of a different career under civil service conditions. Moreover, the judges were men who had passed a large portion of their lives in the world of practical affairs and had won success there. And finally, the common experience and training unite bench and bar in an understanding of each other which is difficult to attain when their professional lives are Edition: current; Page: [239] spent in different careers. This co-operation between bench and bar is of the utmost importance for the working of the common law system.

THE SCANDAL OF 1289

The thirteenth century has one other distinguished English judge, Henry de Bracton; his eminence rests so much upon his writings, however, that we speak of him in detail in discussing his book; and so with the closing years of the century, we come to the age of Edward I. Here we find the one great judicial scandal of English history (1289). Charges of corruption were investigated by a special commission headed by the Chancellor, Burnell.1 Lurid accusations of all sorts of crimes, from sorcery and murder downwards, were brought against various officials as well as the judges, and it is clear that the civil service came out worse than the judicial service. The Chief Justice of the Common Pleas fled the country; the Chief Justice of the King’s Bench, the famous Ralf de Hengham, was found guilty of tampering with a record—later tradition says that he did it out of charity for a poor man—and paid a very heavy fine. Short afterwards, however, he was restored to favour and made Chief Justice of the Common Pleas. Tradition has it that the fine was used to build a clock tower at Westminster which remained until 1715. Like Bracton before him, he became Chancellor of Exeter Cathedral. At least once in Parliament he withstood the King to his face in the cause of justice.2 And, as we shall mention later, he took a prominent share in drafting Edward’s legislation, notably the statute De Donis.

LAY JUDGES: BEREFORD

Most of the judges so far had been ecclesiastics, but from Edward II onwards the proportion of clergy on the bench tends to decline. The connection with the civil service is still close, and we find cases where the bench is used as a sort of honourable retirement for a civil servant.3 We also begin to find, however, that the law becomes a profession and a career. There is a tendency to promote serjeants from the bar to the bench—the first seems to have been Lawrence4 de Brok, who became a judge early in 1268—and so we finally arrive at the period of professional justices who had a long training at the bar as preparation for their high office.

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William de Bereford is a typical example of the new professional justice.1 Bereford became distinguished in the service of Edward I; yet it is remarkable to notice that immediately Edward II came to the throne he was well known to be an intimate friend of the notorious favourite, Piers Gaveston. Indeed, he remained so constant to Gaveston that the baronial opposition demanded his banishment from the kingdom as one of the four men who had given the King evil counsel. At this critical moment his fortunes took a sudden and mysterious turn; instead of being banished, he was shortly afterwards promoted to succeed Hengham as Chief Justice of the Common Pleas (1309), and almost immediately the opposition adopted a formal vote of confidence in the new Chief Justice. By what feat of diplomacy this happy result was accomplished we are not told, but it is clear that the adroit Chief Justice enjoyed the fruits of his dexterity for the rest of his life. As a lawyer he stands out clearly among his fellows, and the Year Books of Edward II owe their peculiar flavour very largely to Bereford’s presence. His character appears most vividly even after a lapse of six hundred years; his quick temper, his anti-clericalism, his refusal to allow formalities and even statutes to stand in the way of substantial justice, appear constantly. On many points his views were highly original and it is not uncommon to find him in a very select minority. He was certainly one of the greatest and one of the most influential judges of mediaeval England. Although his career was almost entirely devoted to the law, like other judges he was occasionally employed upon diplomatic missions.

JUDGES AND POLITICS IN THE FOURTEENTH CENTURY

The political adventures of Bereford can be matched by others during the fourteenth century, which all go to prove that the bench in this period was still part of the government, if not of the civil service. Thus in 1340 a financial crisis compelled Edward III to suspend his war with France. Returning unexpectedly to England, the King dismissed the Chancellor, the Treasurer, many clerks in their offices, Stonor, C.J., C.P., Shardelow, Sharshull and Willoughby, JJ., together with a number of financiers. An attempt to prove charges of corruption against them failed, for no accusers of consequence came forward, and it is clear that the incident was really an attempt by the King to dismiss with ignominy a ministry which he thought had betrayed him. A serious political crisis was the result, and in the end the judges were restored. It was vigorously maintained that these men were not responsible for the King’s difficulties, but no one suggested that judges, as such, were or ought to be outside of politics.2

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To be independent of national politics was easier than to be independent of local connections, and entanglements of the latter sort were frequent. There is clear evidence that great monasteries (which, like great businesses of our own day, were constantly engaged in litigation) paid regular retaining fees to royal judges1—and of course numerous gratuities to all grades of officials.2

A rather different and much more serious conflict occurred in the next reign. In 1386 a parliamentary commission was set up with powers which virtually superseded the normal functions of the King. Richard II formed a court party with Tresillian, C.J., K.B., at its head, and then called the other judges to Nottingham in August 1387 to pronounce on the legality of the commission. It seems clearly implied in this tactic that the judges were sufficiently outside party politics for their support—apparently impartially accorded on a point of law—to be valuable to the King. They declared that the commission was invalid and traitorous. The opposition, however, appealed the King’s friends of treason and Tresillian, C.J., was hanged. The judges who gave the opinion at Nottingham were impeached and banished; they were Belknap, C.J., C.P., Fulthorp, Holt, Burgh, JJ., and the chief baron.3

THE WARS OF THE ROSES

With the beginning of the fifteenth century we come to one justice who has achieved a fame in legend, Sir William Gascoign. Of him is told the famous story that the young Prince, afterwards Henry V, was charged before the Chief Justice and even offered violence to the court, whereupon Gascoign committed him to prison for contempt. The opinion of authorities is divided upon the authenticity of this story, the latest of them being content to present the authorities and to leave the question open.4 Of the two other outstanding judges in the fifteenth century, Littleton and Fortescue, we shall say more in the next chapter.

More important are the growing number of cases where the judges asserted the rule of law in the face of attempts to introduce royal influence into their courts, while it is abundantly clear that they had learnt the lessons of Richard’s reign. During the manifold changes of the fifteenth century, the judges quietly stood aside from the clash of party, with the result that successive changes of dynasty left the bench unaffected. Fortescue alone took any part in those struggles, and after long years of exile finally abandoned the attempt to combine dynastic attachments with judicial office. Not until 1553 do we again find judges removed Edition: current; Page: [242] for political or (since the Reformation) religious reasons. On Mary’s accession Cholmeley and Montague, C.JJ., and Hales, J., were dismissed,1 but Elizabeth made no changes on the bench when she restored Protestantism in 1558.

THE TUDORS AND THE JUDGES

The final separation of the Privy Council from the Star Chamber was a salutary development, for it kept the judiciary distinct from the executive. From 1540 onwards Henry VIII had no judges in his Privy Council. Edward VI and Mary put the Chief Justices on the Privy Council, but Elizabeth excluded them for some forty years. Only at the end of her reign was Popham, C.J., sworn of the Privy Council, in 1599. Thus the intimate connection of Star Chamber and Privy Council once again began,2 and was rapidly intensified under the earlier Stuarts, with disastrous results.

Meanwhile, the old practice of lawyers seeking election to Parliament meant that many judges had had some parliamentary experience, as part of the normal career of an ambitious lawyer. Some of them went even further, and in the sixteenth century many Speakers of the House of Commons were promoted to the judicial bench—and the Speakership was then an important political position.

THE STRUGGLES OF COKE AND BACON

The sixteenth century, although rich in legal changes, presents us no particularly striking figures in the law until its close when in the last years of Elizabeth we find the rise of Sir Edward Coke.3 Born in 1552, he proceeded in due course to Trinity College, Cambridge, and in his later years became High Steward of the University. He entered the Inner Temple and was called to the bar in 1578. Owing to the influence of Burghley he rapidly rose in public office, became Recorder of London in 1591, Solicitor-General in 1592, Speaker of the House of Commons in 1593, and Attorney-General in 1594. By 1601 he had made an enormous fortune, and entertained Queen Elizabeth in his house with great magnificence. In 1600 he began the publication of his Reports. In this early stage of his career, distinguished by his astonishingly rapid rise in the law and in politics (for it must be remembered that in his day a Speaker of the House of Commons was something like a modern Leader of the House), it is only natural that he should be full of enthusiasm for the Tudor conception of the State as Edition: current; Page: [243] expressed by Queen Elizabeth. Full of patriotism and national pride, Coke shared the feelings of others of his contemporaries who exalted the idea of the State, and displayed a violent hatred of Roman Catholics and political prisoners. Even contemporaries sometimes felt that he exaggerated a little, while his prosecution of Raleigh overstepped all bounds and was conspicuous among the State trials even at this period for its brutality. However, it must be remembered that Elizabeth’s reign had often been seriously threatened by a combination of foreign and domestic intrigue, and Coke, as a member of the Government, was well aware of these public dangers. During this period of his career he was naturally a firm supporter of the royal prerogative.

COKE AS CHIEF JUSTICE

The peaceful accession of James I in 1603 must have surprised many contemporaries, for there had been widespread anxiety in Elizabeth’s later years concerning the future after her decease. For a few years all went well. James seemed firmly seated on the throne and constantly proclaimed his adherence to the Tudor idea of government. In 1606 Coke became Chief Justice of the Common Pleas, and therefore high priest of the common law, for whose mysteries he had an almost superstitious reverence. As so often happened in mediaeval times (and Coke’s mind was essentially mediaeval), the attainment of a high office brought a change in his character and outlook. Just as the soldier and courtier, Thomas Becket, became transformed into a churchman of the sternest school on becoming Archbishop of Canterbury, so Coke, once the upholder of prerogative, discovered a new point of view from the bench at Westminster. Perhaps it was a tendency of his character to idealise whatever position he happened to be in; as a Crown lawyer he magnified the prerogative; as the head of the common law system he exalted law to almost mystical heights. This meant a complete revision of his attitude towards the Crown, and there can be no doubt that many capable minds besides Coke, who were content to trust the Crown under Elizabeth, were equally likely to distrust it under James, whose previous record in Scotland was not reassuring. Coke now transferred to the common law, of which he had become the oracle, that supremacy and pre-eminence which he had ascribed to the Crown while he was Attorney-General. A line of decisions, of which Bonham’s Case was a notable example, contained his new teaching.1 From this time onwards he never lost an opportunity of declaring against the prerogative. His first quarrel was with the ecclesiastical courts, and especially the Court of High Commission. The prerogative was soon involved in this dispute, and Coke quoted Bracton’s famous words that “the King is subject to God and the law” (that is to say, according to his enemies’ interpretation, to Chief Justice Coke and the Court of Common Pleas), while in the Case of Proclamations Edition: current; Page: [244] (1610) Coke found yet another opportunity of attacking the prerogative. So far Coke had contrived to maintain his personal popularity. The Prince, afterwards Charles I, enjoyed his company because “he so mixed mirth with wisdom”, and the youthful enthusiasm which runs through all his writings, and his undoubted sincerity, still further contributed to his popularity, while according to the fashion of the times he was fond of splendid attire, “delighting in good clothes, well worn, and being wont to say that the outward neatness of our bodies might be a monitor of purity to our souls”. Consequently, although he gave constant cause of annoyance to the King, yet for a long time the court party was prepared to tolerate him. Indeed, Coke’s position as the champion of the supremacy of the common law was extremely strong, for it certainly represented public feeling based upon centuries of mediaeval thought which had always looked to law rather than to the State. Proposals were soon made that Coke should be removed to some other sphere of activity, finance for example, in which he was reputed to be skilled, and finally, on the advice of Bacon, who was now entering upon a career of open rivalry with Coke, the latter was promoted to the less important but more dignified position of Chief Justice of the King’s Bench (1613).

BACON AS CHANCELLOR

The contrast between Coke and Bacon was as great as could possibly be imagined. As a scientist and a philosopher Bacon was laying the foundations of the modern scientific method, which to Coke was completely incomprehensible and only evoked satirical couplets. Bacon was a whole-hearted supporter of the Crown, and perhaps thought that Coke might be brought back to his early views if he were given one more change of office. But by this time Coke had decided not to change again. From the King’s Bench, Coke issued writs of prohibition to the Court of Chancery, thus opening a general attack upon equity. Coke, whose domestic affairs (in which Bacon also was involved) grew steadily more disastrous, now endeavoured to use his daughter, a child of fourteen, to consolidate his position at court by marrying her to the brother of the reigning favourite, Lord Buckingham. Lady Coke objected and the girl eloped, and Bacon no doubt enjoyed the opportunity of filing an information against Coke in the Star Chamber. At the same time Coke was at last dismissed from office in 1616. From 1617 to 1621 Bacon held the Great Seal and the two protagonists were now fairly ranged one against the other. Coke now entered Parliament and began the third epoch of his career as leader of the parliamentary opposition (1621). This time he got his revenge upon Bacon, for he was one of the managers of his impeachment, and from now onwards he was prominent in all the activities of the opposition. In 1622 he was put in the Tower for several months and his papers confiscated.

In 1625 James I was succeeded by his son, Charles I, and Coke was Edition: current; Page: [245] soon identified with the opposition’s policy of restricting supplies. The next year he was nominated sheriff (which was a compulsory office and conveniently disqualified the holder from sitting in Parliament, as he himself had once decided from the bench). These last years of his life (he was now seventy-seven) he devoted to preparing his manuscripts for the press. In 1628 he was again returned to Parliament, receiving the striking distinction of election in two different counties. By this time the Crown had attempted a variety of methods for obtaining money, and after much discussion in the Commons, Coke’s suggestion of presenting a Petition of Right was adopted, to which Charles in the end had to give his assent. This was beyond doubt the crown of Coke’s career. After six years of retirement he died in 1634, and immediately his manuscripts (including his will, upon which he had spent many years of learned care) were seized and, it would seem, destroyed. Of his political theory we have already spoken,1 and of his writings something will be said in the next chapter. His general influence upon the course of English law was to maintain continuity between modern and mediaeval times, and this achievement had vices as well as virtues. But, most important of all, he preserved the fabric of the common law, and in his judgments began the tendency towards bringing it into harmony with more modern needs. It is unfortunate that his mediaeval foundation made it necessary to advance by way of increasing complexity instead of simplification. Yet even here Coke’s mediaeval learning had such an air of finality about it that further recourse to mediaeval law was not so necessary, and it became more and more the tendency to take Coke’s word on matters of Year Book learning.

THE RESTORATION: HOLT

Of Chief Justice Hale, and of John Selden (who never held legal office), we shall speak more at length in describing legal literature; and so we pass to the Restoration,2 which saw the rise to prominence of Sir John Holt. His father was a serjeant and Recorder of Reading. His student days at Oxford were no doubt lively, and tradition has it that he was the only member of his set who did not end on the gallows. At the age of ten his name was already put upon the books of Gray’s Inn and at twenty-one he was called to the bar (1663). It was only after some ten years that Holt became prominent. In 1679 he defended Lord Danby in his impeachment; he was also counsel for Lord Russell and appeared for the East India Company in support of the royal grant of monopoly. In 1686 he became Recorder of London, was knighted and became a King’s serjeant, but he soon resigned the recordship rather than pass sentence of death upon a soldier who had deserted the Edition: current; Page: [246] Army in time of peace. When James II left the kingdom, Sir John Holt took a prominent part in finding a formula which would express the revolution in terms of constitutional law. He was immediately appointed Lord Chief Justice of the King’s Bench, where many notable cases came before him, for by this time the King’s Bench had become more important than the Common Pleas. Holt declined the Great Seal under the excuse that he was not an equity lawyer. He retired from the bench in 1710 and died shortly after. In politics he gave mortal offence to James II by resigning the recordership, and so he naturally maintained the revolution settlement which he had helped to formulate. As an advocate his early training under Hale had made him a sound lawyer with a contempt for trickery, while as a judge he restored the credit of the bench after the evil days of Charles II and James II. In the field of constitutional law he resisted innovation on all sides; if he took a firm stand against the excesses of martial law, he was also ready to defend the dispensing power of the Crown, and resisted an extreme claim of privilege by the House of Lords, which for a moment proposed to commit the Chief Justice for contempt. In the Aylesbury Election Case (Ashby v. White1) Holt held that although the plaintiff had suffered no loss in consequence of the constables’ refusing to allow him to vote, yet he had a good cause of action on the principle that every right has a remedy—and this in spite of some pretention by the House of Commons to make it a question of privilege. In the Bankers’ Case2 he and his fellow justices held that a petition of right lay against the Crown for damages on breach of contract. It is interesting to note that he several times anticipated Lord Mansfield’s decision in Summersett’s Case, holding that one could not be a slave on English soil.3 In another case he laid down the rule that land which is colonised by English settlers is thereby subject to English law, while land which is conquered retains its own laws until further order.4 In private law he laid the foundation of modern commercial law. Coke had already stated the claim of the common law courts to entertain mercantile cases, but a great practical advance was made when Holt adopted the policy of deciding such cases in the light of mercantile custom instead of by the strict rules of the common law, which were, indeed, entirely unsuitable as a basis of commercial law. Like Lord Mansfield after him, he readily accepted evidence of mercantile custom and consulted merchants freely upon the matter. He tells us that once when he had to decide whether a bill could be accepted after it was due he invited all the eminent merchants in London to discuss the matter with him.5 He has also given us an early decision upon an employer’s liability Edition: current; Page: [247] for the acts of his servants done in the course of their employment.1 He dissented, however, from a decision that the Postmaster-General was not liable for packets lost in the post.2 Another of his decisions on master and servant has a less modern sound:

“If a master gives correction to his servant it ought to be with the proper instrument, as a cudgel, etc. And then if by accident a blow gives death this would be but manslaughter. The same law of a schoolmaster. But a sword is not a proper instrument for correction.”3

Unlike most of his predecessors he was willing to favour the action of slander. The most famous of all his decisions is, of course, Coggs v. Bernard (1703),4 which is an elaborate treatment of the general principles of the law of bailments, based upon a Romanesque passage in Bracton. As Lord Birkenhead has observed, “throughout all branches of law one may still cite judgments delivered by Holt”.5 As a criminal judge he had enormous influence in changing the tone of the courts. In trials for treason he atoned for the legal disabilities under which prisoners were then placed by treating them with great patience and indulgence; he even allowed Lord Preston to address the jury in his defence after his own summing up, and he discontinued the practice of bringing prisoners into court in chains. It was an old theory that prisoners tried for felony needed no counsel, for the judge was their defender; Holt lived up to the letter of the rule. As Sir Richard Steele wrote in the Tatler:

“Wherever he was judge he never forgot that he was also counsel. The criminal before him was always sure he stood before his country, and, in a sort, the parent of it. The prisoner knew that though his spirit was broken with guilt and incapable of language to defend itself, all would be gathered from him which could conduce to his safety; and that his judge would wrest no law to destroy him, nor conceal any that would save him.”6

One notable piece of legislation associated with him was the Statute 3 & 4 Anne, c. 8, which made promissory notes negotiable, for when the point was raised before him in a case Lord Holt would not venture to make so great a departure.7 He therefore felt compelled as the law then stood to hold that notes were not negotiable, using his influence with the legislature to make the necessary reform.

Holt’s career at the bar coincides with the darkest page in the history of the English judiciary. The most notorious examples are Scroggs and Jeffreys, both men of ability but unscrupulous in any matter which involved politics: many others were men of undistinguished attainments Edition: current; Page: [248] whose names are unknown outside of biographical dictionaries, their appointment being solely due to their pliability. Many who showed signs of resistance to the wishes of the court party were removed—Pemberton was twice dismissed; Bertie, Wilde and Dolben are others who were removed for political reasons. So high did political passions run that even Parliament, after the revolution of 1688, followed the example of the Stuarts and went so far as to imprison ex-judges whose decisions years before had limited the vast privilege claimed for either house.

AFTER THE ACT OF SETTLEMENT

We have already mentioned this act which restored the tenure of judges quamdiu se bene gesserint as it generally had been until Charles II and James II had made appointments durante bene placito. It did not take the bench entirely out of politics: that would be impossible, and perhaps undesirable. As far as English conditions are concerned, parliamentary experience may even be useful and broadening to a lawyer who might otherwise become too far removed from the world of affairs. Once on the bench, however, judges no longer are expected to take part in political affairs. For more than a century no Chief Justice has been a member of the Cabinet:1 and although the Chancellor goes out with his party, and while in office is a member of the Cabinet, there are nevertheless conventional limits to his political activities—to say nothing of physical limits due to the multifarious nature of his duties.

MANSFIELD

Mansfield is, in fact, an example of a judge who remained in active politics while on the bench.

William Murray, first Earl of Mansfield, was the fourth son of Lord Stormont, a Scotch peer of distinguished lineage but slender fortune. He was educated at Oxford, being intended first for the Church, but a friend afterwards assisted him in preparing for the law. His family were staunch Jacobites and all through his career his enemies were ready to reproach him, no doubt unjustly, with only a half-hearted devotion to the House of Hanover. At Oxford and soon afterwards, Murray made the acquaintance of the principal wits of the time, including the poet Alexander Pope, before whom and a looking-glass he practised eloquence. His reputation as a man of culture was so high that even Dr Johnson (who had a deep-rooted prejudice against Scots) was bound to admit that one could do a lot with a Scot if he were caught young enough. The most significant event in his career at Oxford was his winning a prize for Latin verse against William Pitt, afterwards Earl of Edition: current; Page: [249] Chatham, for here began a bitter rivalry which lasted all their lives. Being a Scotchman, Murray was soon able to acquire a good deal of Scotch business, both legal and political. As early as 1733 he argued a Scotch case before the House of Lords. In 1742 he became Solicitor-General, entered the House of Commons, and immediately became the most brilliant defender of the government in the House, withstanding single-handedly the fierce attacks of Pitt. In spite of his supposed Jacobite sympathies he prosecuted the Jacobite lords who had been concerned with the Rebellion of 1745. Notwithstanding Pitt’s incessant attacks, Murray continued his successful defence of the government; in 1754 he became Attorney-General, but in 1756 he insisted upon leaving the House of Commons to become Lord Chief Justice of the King’s Bench, and was created Baron Mansfield. In the House of Lords he continued to take an active part in politics. He opposed the repeal of the Stamp Act by Lord Rockingham, taking on this and some other constitutional questions a somewhat narrow view. On the bench he inevitably incurred some unpopularity in connection with the cases in which Wilkes was involved, and was bitterly assailed by the anonymous Junius. His rulings in several libel actions, to the effect that the jury had no right to pass upon anything except the facts of authorship and publication, increased his unpopularity, although there is little doubt that his view of the law was correct until the passing of Fox’s Libel Act.1 On the other hand, in 1771 he decided the famous Summersett’s Case in favour of a slave. In 1774 he decided that the Crown had no right to legislate for conquered countries merely by prerogative in such a way as to contravene the usual principles of constitutional law. In 1776 he received an earldom, and soon took less part in politics. In 1778 when it was known that he supported a bill which would have relieved Roman Catholics his house was burnt in the course of the Gordon riots. Lord Chatham, who had followed him in the Lords, died in 1778, and Mansfield absented himself from the funeral and refused to join in the acts of mourning for his late rival. In 1784 he himself retired from politics, and in 1788 resigned from the bench to devote the rest of his days to society and letters. In 1793, at the age of eighty-nine, he died and was buried in Westminster Abbey.

As an orator in Parliament he was second only to Pitt, with whose thunderous style Mansfield’s own quiet and elegant manner was in striking contrast. At the bar the same gift enabled him to present his case and his arguments with winning lucidity. On the bench he acquired a reputation for complete impartiality, long patience and a profound understanding of legal problems. To these advantages he added the study of somewhat unusual subjects for lawyers of his day. His old master Denison had taught him special pleading and conveyancing on black-letter lines, but at the same time Mansfield felt more attracted by the cosmopolitan learning of Bracton, and under his influence was Edition: current; Page: [250] drawn (like Holt before him) to a study of Roman law and of the French commercial ordonnance which at that moment was the best body of mercantile law in existence. His interest in commerce was deep; a generation before it was fashionable he had adopted free trade principles, and among his many claims to fame his commercial decisions are perhaps the most imposing. It is impossible here to enumerate all the really important decisions which Mansfield made, and we must be content with reproducing two somewhat differing estimates of his work. In one of them Sir William Holdsworth examines Mansfield’s place in the legal controversies of his time:

“Lord Mansfield was a Scotchman by birth, but he was educated at Westminster and Oxford, and he was a barrister of Lincoln’s Inn. He had kept up some connection with Scotland and Scotch law, so that both his birth and his education, as well as the qualities of his mind, tended to make him a jurist learned in Roman and continental law as well as in English law. The breadth of his learning prevented him from attaining that accurate knowledge of the development of common law rules which could only come to an English lawyer who had devoted the largest part of his time to the study of its complex technicalities. He approached the common law from the viewpoint of a student of the broad principles of jurisprudence, not from the viewpoint of a student of the evolution of its rules. These qualities of his mind fitted him admirably for the work of creating and settling the law merchant, which in England was in a backward and unsettled state. They enabled him also to rationalise and liberalise other branches of the common law, notably quasi-contract and estoppel, by an infusion of broad and equitable principles. But, naturally, the continued exercise of these qualities tended to make him think that he could settle on rational principles all the branches of the common law. This was a mistake. The principles of some of the older branches of that law were too well settled to be thus reformed. The ground was covered by authority; and the authorities could be understood aright only by lawyers who had studied their history and development. An attempt to rationalise these branches of the common law by the help of pure reason and foreign analogies could not succeed, because the principles founded on this basis could be proved to be contrary to ascertained principles of the common law. Thus Lord Mansfield’s attempts to recast the doctrine of consideration, to restate the rule in Shelley’s Case, and to make the court of King’s Bench a court of equity as well as a court of law met the same fate as [his] attempt to extend the doctrine of disseisin at election.”1

In the other, Lord Birkenhead setting aside those things which Mansfield failed to achieve, estimates his place in legal development in these words:2

“It was first and foremost his work in developing and explaining the commercial law that has ensured him a foremost place among English judges. His practice was to try such cases at the Guildhall with a jury. The panel was chosen with great care from among the merchants of the city, to whom there was no greater source of pride than to become “Lord Mansfield’s jurymen”. He invited them to dine with him frequently, and enquired minutely into the practice of Edition: current; Page: [251] reputable merchants, in return explaining to them with the greatest care the principles of law. When a case arose which involved a point of principle or some novel practice, he was accustomed to take their verdict subject to a case for the opinion of the full court. He was aware that such a practice might cause undue delays, and was therefore careful to draw the case at once and see that it was signed by counsel, before calling on another case. He made it an invariable condition that the case was set down for argument in the first four days of the next law term. In this way he examined, restated, or created the whole of the law of merchants. His long career and deserved reputation have somewhat obscured the work of his predecessors, especially Holt, who in many instances will be found to have decided the same point the same way. No judge can be a complete innovator. He is one of a long procession of fellow workers, and undue prominence given to one may obscure the merits of another. Nevertheless, Holt could not have done Mansfield’s work. He lived too soon, but he did noble work on the foundations of which Mansfield built the commanding fabric of our commercial law. The law relating to shipping, commercial transactions, and insurance was practically remade by Mansfield, who never lost sight of the fact that international commerce requires the law of each country to be based on the same principles; the practice of honesty and fair dealing among prudent and honourable merchants. Coke captured the law merchant for the common law; Holt retained it; Mansfield formally incorporated it into our system.”

Edition: current; Page: [252]

CHAPTER 14: PROFESSIONAL LITERATURE

SUMMARY page
The Anglo-Saxon Age 254
Anglo-Norman Legal Literature 255
Henry II: Glanvill’s Treatise 256
The Beginnings of the Public Records 257
Henry III: Bracton 258
Bracton’s Use of Cases 259
Bracton’s Note Book 260
Bracton’s Romanism 261
Bracton’s Influence 262
Bractonism and Parliamentarism 264
Bracton’s Imitators 265
The Minor Treatises 266
The Origin of the Year Books 268
Changes in the Year Books 269
The Later Year Books 271
The Object of the Year Books 272
The Abridgments 273
The Register of Writs 276
Littleton’s Tenures 277
The Works of Fortescue 278
Doctor and Student 279
The Reporters 280
The Later Treatises: Coke 281
Selden: Prynne: Hale 284
Blackstone 285
Blackstone’s Successors 288
The Rise of the Modern Text-Book 288

“Legal precepts and legal institutions are far from being all with which we have to do. Indeed, in the everyday administration of justice, along with legal precepts, the traditional art of the lawyer’s craft—the traditional mode of selecting, developing, and applying the received legal materials, the traditional technique of finding the grounds of decision in those materials and of developing them into a judgment—is a factor of no less importance. That art, and a certain body of received ideals as to the end of law and what legal precepts should be in view thereof, are in truth much more enduring than legal precepts. They give unity and continuity to legal development. They make the lawyers of to-day conscious of kinship with the lawyers of the sixteenth century, and even with the great lawyers of the middle ages, and give us a sense of continuity from the Year Books to the Edition: current; Page: [253] present, which would have little warrant if we looked only at institutions and at legal precepts. They give unity to the law of English-speaking peoples throughout the world. For, diverse as the social, economic, political, and physical conditions may be, diverse as legislation may be, far as statute or judicial decision may have departed from the common legal materials of the seventeenth century, and divergent as the paths of departure may be, the lawyers in England, the United States, Canada, and Australia feel that they live under what is essentially one legal system, and each knows at once how to make use of the other’s law. An American lawyer uses recent English or Canadian or Australian decisions with entire assurance because they are made to be used as he knows how to use them. The American legislator knows, as it were instinctively, how to adapt English or Canadian or Australian legislation because it has been drawn to be used as he knows how to use it. The traditional art of applying it, and of developing it into grounds of decision of particular controversies, is familiar to him. On the other hand, when the American lawyer seeks to use the legal materials of the Roman law or of the modern Roman-law world, he proceeds blunderingly and with a certain consciousness of helplessness. For these materials took shape for a wholly different technique. The traditional art of developing grounds of decision from them and applying them is very different from our own, and they are adapted to that technique. Ours is a technique of utilizing recorded judicial experience. The civilian’s is a technique of finding his grounds of decision in written texts. Even when we have written texts, as in American constitutional law, we proceed at once to look at them through the spectacles of the common law, and our method is not one of development of the text but of development of judicially found grounds of decision which, if they began in the text, have since led an independent existence.”1

The words we have just quoted clearly define the point of view from which historical sources are best studied. It is, of course, necessary that the would-be legal historian should know what sources are available and should understand their value and their use. But the study of the sources of legal history has a wider and more general significance. Besides being the sources which the modern historian uses in reconstructing the past, these sources were also the tools in daily use by ancient lawyers. It was by the constant use of the reports, registers, pamphlets and other works which we shall mention that the lawyers of former days gained their living, and, as in every other human creation, the peculiarities of the tools employed have left a permanent mark upon the finished product. A system of law therefore is largely influenced by the technical methods used by the lawyers in going about their daily business. When faced with a difficult case, the advocates and the judges have to undertake research in order to find what law will govern it. The method which they pursue, the character of the books and sources which they use, and the attitude of mind with which they approach them, all have their influence upon the shaping of the law, and upon their conception of law itself. Even in our own day the enterprise of law publishers in reporting and making available thousands upon thousands of cases every year is showing signs of influencing the modern conception of law in America. First there is an heroic attempt to keep pace with the mass of material pouring from the presses, which is soon followed by an Edition: current; Page: [254] inevitable reaction, and a change in attitude towards case law. It is, of course, perfectly true that to some extent legal literature is the product of the professional point of view; but it is even more important to observe that a particular type of legal literature when it has come into constant and widespread use exerts very considerable influence upon legal thought. By the words “legal thought”, moreover, we do not merely mean the deliberate reflections of the specialist in jurisprudence; such speculations are occasionally influential, but quite frequently they do not extend outside of academic circles. A more important part of legal thought is the half-conscious formation of ideas which is bound to go on in the mind of every active practitioner. It was the same in the middle ages. If we are to understand the point of view of the founders of the common law these questions

“must be approached from the point of view of the royal judge and the pleader. The one was a hard-worked and underpaid official, the other a busy professional man intent on winning cases and learning the practical wisdom of the courts. Neither class was in any sense of an academical turn of mind, and theories as such seem to have played little part in their thinking. Yet with such men one often finds that an unexpressed, half-conscious notion or prejudice is extremely influential, and, indeed, it is mainly to such factors as this that one must look for an explanation of the attitude of court and pleaders.”1

It is only natural that it should be more difficult to catch the turn of thought of people whose thoughts are only half expressed, than it is to follow the argument of a jurist who is deliberately expounding his speculations. In the former case we have to search for the thought as well as we can among the daily practical affairs of the old lawyers; in the latter we have merely to read attentively a carefully written exposition. Yet, as everybody knows, the ideas which most powerfully influence conduct in every department of life are not the ideas of a systematic philosophy deliberately held, but rather the vague notions and unconscious prejudices, habits of mind, and so forth, of which we are for the most part unaware. Such notions are partly the cause, but more frequently the effect, of the legal literature which one habitually uses, and the principal object of this chapter will be to trace the relationship of the law to professional literature from this point of view.

THE ANGLO-SAXON AGE

If we begin with the Anglo-Saxon period we shall find a fair number of sources for legal history, but very few of these are what we would call professional literature. As we have seen, it is hardly possible to speak of a legal profession in the Anglo-Saxon period. The sources which have survived are for the most part formal documents. The laws, or the declarations of law, made by the Anglo-Saxon kings, have survived in considerable numbers and have been published in an edition Edition: current; Page: [255] which is a monument of patient learning and keen textual criticism.1 In the matter of form hardly anything can be deduced save a general similarity in method (or lack of method) with various continental collections.2 Perhaps the one great difference—namely, that the Anglo-Saxon laws are written in English while the continental collections are in Latin instead of in the vernacular—is more obvious than important; the spirit in both cases seems the same. In the case of the charters, on the other hand, matters of form are more illuminating. It was the object of the charters in most cases to make bookland, and for this purpose they used forms and expressions which can definitely be traced to the continent. This constitutes one of the main arguments used by Sir Paul Vinogradoff in establishing Roman influence upon Anglo-Saxon law.3 To this extent no doubt the forms of the Anglo-Saxon charters indicate the direction in which Anglo-Saxon thought was searching for a professional technique. It seems, moreover, that these documents were not drafted in the Royal Chancery (at least until comparatively late) but were prepared by the recipient, who presented them to the donor in the hope that he would execute them. There is, therefore, a good deal of room for the exercise of fancy in their construction. Many of them bear a distinctly literary character; elegance, latinity and rhetoric all enter into the Anglo-Saxon charter.

Those slight productions which might be called legal treatises coming from the Anglo-Saxon age are few and short.4 In form they consist of the brief statement of a few rules, usually matters of detail which might be apt, otherwise, to slip from the memory.

ANGLO-NORMAN LEGAL LITERATURE

It is not until the Norman age has made some progress that we begin to find a definitely professional literature in the modern sense of the term.

In the middle of the reign of Henry I, between the years 1113 and 1118, we get the first outburst of legal writing in England. A little group of treatises attempted to state the old Anglo-Saxon law in a form suitable for the Norman age. Several of these treatises are closely connected, and may perhaps come from the same hand. Most important of them is the Leges Henrici Primi. It seems to have obtained this title because it commences with the coronation charter of Henry I; Edition: current; Page: [256] the rest of the book, in fact, is drawn mainly from the Anglo-Saxon laws, with some references to civil, canon and Frankish law. The author suffered under the disability of writing a very bad Latin style and his meaning is often far from clear: but in spite of all his limitations Maitland insists “that he was engaged on an utterly new task; he was writing a legal text book, a text book of law that was neither Roman nor canon law. To have thought that a law book ought to be written was no small feat in 1118”. The legal situation in Henry I’s reign was largely also a political question, and a remarkable trace of the political and racial controversy which must have been going on is to be found in a book called the Laws of Edward the Confessor. The anti-Norman element in England naturally looked back to the days of the Confessor as the Golden Age of English law, and the author, or rather forger, of this text, endeavoured to show the good old law which in his opinion ought to prevail. He is a staunch upholder of West Saxon institutions and of the Church; his principal antipathy is for the Danes. Unfortunately Coke and all the older historians took this book seriously, and so a good deal of legend came to pass as history.

HENRY II: GLANVILL’S TREATISE

Two generations later we come to another outburst of legal writing. The Dialogue of the Exchequer we have already mentioned;1 at almost the same date we find another treatise which is more exclusively concerned with law. This book goes by the name of Glanvill.2 It is highly significant that in or about the year 1187 it should have been possible to write two separate treatises, one about administration, and the other about law; already these two subjects have their separate spheres. There is no reason to believe that Ranulph de Glanvill wrote this book, although he may have inspired Hubert Walter to compose it; the manuscripts merely say that it was composed in the time of Glanvill. The high importance of this work lies in the fact that it settled the method of legal writing for many centuries to come. This method consists in giving a specimen form of writ current in the King’s Court and adding to it a commentary. In Glanvill’s day the writs were not very numerous and the law attached to them was not very complicated. The King’s Court was as yet young and its jurisdiction was not very extensive. Besides the law of land and the feudal incidents attached to it, there was not very much to be said, nor was it felt desirable to extend the jurisdiction of the King’s Court to other matters. Glanvill’s treatise, therefore, is not very long or very difficult. The contrast between Glanvill and the Leges Henrici Primi is very marked. The author of the older book Edition: current; Page: [257] is overcome by the confusion of competing systems of law, none of which alone was adequate. Even in England he had to recognise three territorial laws, the Dane Law, the Law of Mercia and the Law of Wessex, but in order to make sense out of them he had to appeal to Roman, canon and Frankish law. When we come to Glanvill everything is beautifully simple. He is only concerned with the law of the King’s Court and with cases which originated there; all the tangled masses of local custom which certainly were still in force he completely ignores; most of the surviving traces of pre-Conquest law are likewise absent from his work. He is, in fact, the first exponent of the new common law which in the course of the centuries was to supersede the ancient legal institutions of the land. Already we can see the main features of that common law in Glanvill’s book: it is royal, flowing from the King’s Court; it is common, for local variations receive very little sympathy; it is strongly procedural, being based upon writs and expressed in the form of a commentary upon them.

Manuscripts of Glanvill continued to be copied as a useful book for the next hundred years—even after Bracton’s much larger (but much more costly and difficult) treatise was available. Attempts to re-edit Glanvill seem never to have got beyond the stage of private experiments which did not reach the general public1—at least, in England: in Scotland, however, a much revised version of Glanvill became influential under the title of its opening words, Regiam Maiestatem.2

THE BEGINNINGS OF THE PUBLIC RECORDS

We find at the opening of the thirteenth century several very imposing series of public records consisting of the rolls of the several courts and administrative departments.3 These are highly important as sources for legal history, but it is only very much later that they become in any sense a product of the profession. The steps by which this took place seem never to have been fully explored. In their early days, no doubt, these rolls of the King’s Courts were prepared by royal officials for strictly practical purposes.4 They are hasty, rapidly written, full of slips and interlineations. There is an air of informality about them which seems to show that they were taken down in court as cases proceeded, and never revised. If, however, we look at a plea roll of the fourteenth century or later a great change has taken place. Pleadings Edition: current; Page: [258] are set forth in formal language and written in a large set hand. Subsidiary notes are commonly made in very hasty writing, but the formal record always appears in precise phrases and careful writing. At some time or another the responsibility for drafting these records seems to have shifted. In the earlier rolls it is clear that the clerk recorded any matter of interest to the Crown, and this without consulting the parties, who very probably did not have access to the rolls. By the time we reach the classical age of the common law, it seems to have become the practice for the lawyers engaged upon a case to settle the pleadings and the form in which they should appear upon the plea roll. From this point, therefore, the enrolment is not merely an administrative document for the confidential use of the royal officials, but a document drawn by lawyers in accordance with the learning of their art, and therefore a form of professional literature.1

Besides the pleadings themselves the writ has also undergone a somewhat similar development. In the early Norman age a party who was fortunate enough to obtain a royal writ against his adversary was probably uncertain of the form which that writ would take. In substance it was merely a command from the King to a sheriff in connection with the matter, and might contain any orders which the King thought appropriate. Gradually a few forms became more and more commonly in use, and it was obviously convenient that the public as well as the clerical staff of the Chancery should know the more common forms available. And so we find collections of forms of writs, at first very small, and later growing to formidable dimensions. With the writs, as with the pleadings, the responsibility for drafting them gradually shifts from the royal officials to the legal profession at large, and so they too pass from the category of administrative documents into that of professional literature. It is impossible to be certain that this change is completed until we reach the sixteenth century, but it may well be that its beginnings go back several centuries.

Such, then, is the general character of the development of legal forms in the earlier period. The preparation of documents which was once the private concern of the King’s officials, gradually passed from the administration to the legal profession, who exercised it subject to criticism by the courts. As we shall soon see, even the treatises owe a great deal to this process.

HENRY III: BRACTON

Two generations after Glanvill’s book we come to “the flower and crown of English jurisprudence”—Bracton. Of Bracton’s life we know a good deal of insignificant detail; of the really important matters in his career we have very little information. He seems to be of Devonshire origin and held a great deal of preferment in the Edition: current; Page: [259] Church, finally becoming Chancellor of Exeter Cathedral. He spent many years in the royal service, principally as a Judge of Assize, constantly visiting his own county of Devonshire in that capacity.1 He seems never to have sat in the Court of Common Pleas although for a short time he was a Justice in Eyre and of the King’s Bench. Although he was constantly in the government’s service we find little trace of his taking a side during the Barons’ War. It is, in fact, impossible to regard him as a partisan, for he served both the barons and the King.2 It has been suggested that we have here an early example of the sound judicial policy of remaining absolutely neutral in times of political strife. His great book was never finished, for he seems to have stopped working upon it in 1256; the civil war which soon followed may well have prevented further study.3

The work consists of two distinct portions. The first quarter is a somewhat lengthy introduction; the rest is a series of separate treatises upon the various forms of action. The second and main portion of his work is based on the original plan of Glanvill, that is to say, each form of action is treated separately in the form of a commentary upon the appropriate writ. But Bracton does a good deal more than use Glanvill’s plan and merely bring his matter up to date by the inclusion of vast masses of new law developed since Glanvill’s day. He made, in fact, two capital contributions of his own to the art of legal writing.

BRACTON’S USE OF CASES

First of all, besides studying the form of the original writs, he also procured, for his own private use, complete transcripts of the pleadings in selected cases, and even referred to the cases in the course of his treatise. This great innovation gives to his work in several places a curiously modern air, for like modern law writers he sometimes praises and sometimes criticises his cases. At the beginning of his book he explains, however, that the contemporary bench is not distinguished by ability or learning, and that his treatise is, to some extent, a protest against modern tendencies. He endeavours to set forth the sound principles laid down by those whom he calls “his masters” who were on the bench nearly a generation ago; hence it is that his cases are on the average about twenty years older than his book. Of really recent Edition: current; Page: [260] cases he used very few. It must not, therefore, be assumed that we have in Bracton the modern conception of case law. He never gives us any discussion of the authority of cases and clearly would not understand the modern implications of stare decisis. Indeed, his cases are carefully selected because they illustrate what he believes the law ought to be, and not because they have any binding authority; he freely admits that at the present moment decisions are apt to be on different lines. Bracton’s use of cases, therefore, is not based upon their authority as sources of law, but upon his personal respect for the judges who decided them, and his belief that they raise and discuss questions upon lines which he considers sound.1 Although it is true that the use of cases as a source of law in the modern sense was still far in the future, nevertheless Bracton’s use of cases is very significant. He accustomed lawyers of the thirteenth and early fourteenth centuries to read and to discuss the cases which he put in his book, and this was a great step towards the modern point of view. It may be that Bracton’s priority in this matter can be regarded as established. He is certainly very soon followed by little treatises or pamphlets which also contain transcripts of records, but unlike Bracton these later little treatises have either suppressed the names of the parties or have contented themselves with an imaginary rather than an actual record. As for Bracton, it was only his official position and his legal connections which enabled him to obtain access to the rolls of the King’s Courts. The ordinary lawyer at this time would certainly not have been able to spend years of study upon these official and confidential documents.

BRACTON’S NOTE BOOK

It is still possible to trace the stages of Bracton’s work, for a Note Book was discovered by Sir Paul Vinogradoff and edited by Maitland which contains his transcripts of some two thousand cases from the plea rolls. Most of those plea rolls still survive and in their margins are still to be seen the pencil directions which Bracton wrote for his copyist.2 It may be that Bracton’s work was never completed in consequence of an order which we know he received demanding the instant return of all plea rolls in his possession. Even for a judge such as Bracton access to cases on the plea rolls was therefore difficult, and there is no possibility of any system of case law developing when the cases are inaccessible to the profession. We may conjecture, however, that Bracton’s use of cases was favourably received by the profession; the small tracts we have just mentioned which contain either records of cases or drafts of imaginary records bear witness to this fact. It may well be that Bracton’s discussion of cases so impressed lawyers at the Edition: current; Page: [261] time that there was a real demand for case material, especially after Bracton’s treatise began to grow old. Such a demand might have been met in a variety of ways; on the continent it was not unusual for a clerk of the courts to prepare a collection of interesting cases from the documents in his custody, but in England a different policy was adopted. It is, perhaps not too fanciful to suggest that Bracton’s use of cases gave the first impetus towards the preparation of the Year Books.

BRACTON’S ROMANISM

The second contribution which Bracton made was to overspread the technicalities of the English courts with a broad cosmopolitan learning. His use of foreign material, and especially of Roman law, may well be compared with the Romanism of such treatises as the Leges Henrici Primi of a hundred and forty years before, and with the few passages where Glanvill also drew upon Roman sources. There has been a great deal of controversy as to the extent and the character of Bracton’s Romanism. To some he has seemed so completely Roman that he must be denied a place in the literature of English law;1 Sir Henry Maine regarded him as something like an inexplicable fraud in passing off sheer Romanism as English law.2 Maitland believed that the extent of Bracton’s Romanism was not considerable and that his knowledge of Roman law was neither accurate nor deep.3 To all this Sir Paul Vinogradoff replied that Bracton’s Roman law must not be tested by the Digest but by the somewhat Romanised customs in force on the continent, and that judged from this standpoint Maitland’s charges of mishandling Roman law break down, for Bracton was using Roman law in the popular form in which it was then current, rather than in the academic purity of the Digest.4 We may probably assume, therefore, that when Bracton used foreign law he had a fairly good idea of what he was about.

It is interesting to note the places where Bracton’s Romanism occurs. It is most apparent in the earlier portion of his work, which consists very largely of general considerations serving as an introduction to the subject.5 The identification of these Romanesque passages and the discussion of their significance are by no means easy, and a good deal of controversy has resulted. This has been rekindled by the brilliant and provocative little book of H. Kantorowicz, Bractonian Problems (Glasgow, 1941), suggesting that the blunders in the text are not due to Edition: current; Page: [262] Bracton but to an anonymous redactor who prepared his manuscript for circulation. Several scholars have lately enlarged the list of Roman and Canon writers to whom Bracton’s indebtedness can be proved, and thus the general problem of Bracton’s foreign learning, its quality, and the use he made of it, is very much an open question. In the meantime, a valuable but very technical mass of research is being published.1 As Sir William Holdsworth has observed:

“We cannot say that all Bracton’s law is English in substance, that the influence of Roman law is merely formal. No doubt there is a body of thoroughly English rules; and Bracton differs at very many points from the Roman texts. But it is clear that he has used Roman terms, Roman maxims, and Roman doctrines to construct upon native foundations a reasonable system out of comparatively meagre authorities. Even when he is dealing with purely English portions of his treatise, and discoursing upon the Assizes, the writs of entry, or the writ of right, Roman illustrations and phrases naturally recur to him. And it is clear that his study of Roman law has led him to discuss problems which, when he wrote, were very far from any actual case argued in the royal courts. Thus he deals with accessio, specificatio, and confusio; and ‘where’, says Maitland, ‘in all our countless volumes of reports shall we find any decisions about some questions that Azo has suggested to Bracton?’ Similarly he deals with many questions relating to obligation and contract, fraud and negligence, about which the common law had as yet no rules. In dealing with these matters he necessarily uses Roman terms and borrows Roman rules. It is, as we shall see, because his treatise has given to English law at least one authority upon many matters which were outside the routine of the practising lawyer of the thirteenth century that his influence upon the history of English law has been so great. That his treatise deals with such matters is due to the Roman law which it contains.”2

BRACTON’S INFLUENCE

Bracton’s influence has varied greatly from century to century. In his own day it must have been high, for numerous copies of his book are still extant and many more must have perished. This does not mean that there was any tendency to follow Bracton’s doctrine—even on points which were still open. As an example, we may mention a point in the law of descent in which Bracton, Fleta and Britton all agreed Edition: current; Page: [263] (with Glanvill) in a somewhat speculative proposition. Maitland1 firmly rejected them all, and an unprinted Year Book has just come to light, showing that the courts also rejected that doctrine.2 As we shall see later, Bracton is also firmly in favour of admitting the half-blood to inherit, but here again the courts declined to follow him.3 After a century his work became less popular. At first it suffered the usual fate of every successful book in the middle ages, that is to say, various writers prepared epitomes of it or revised it, but after 1350 or thereabout his popularity waned. The broad view and wide learning of Bracton gave way before the less genial science of procedure. For a time the common law devoted itself to the development of a rigid and rather needlessly complicated system, which demanded a close study of formidable masses of detail. It was only centuries later that the printing press was to establish Bracton’s position in English legal literature. The first edition, 1569, is a stately volume, perhaps the best printed law book we have ever had, and it came at a time when mediaeval learning was needed. The steady growth of the powers of the Crown and the tendency towards State absolutism acting through the person of the monarch were inevitable after the Reformation. It is curious to mark the contrast between two books which appeared very close together, Bracton in 1569, and Smith, De Republica Anglorum, in 1583. In the latter, Elizabeth’s Secretary of State, Sir Thomas Smith, set forth the truly fearful powers of the Crown in Parliament, which can make and unmake law, change rights and possessions of private men, legitimate bastards, establish religions, condemn or absolve (by its attainders, etc.) whomsoever the Prince will. Smith was no friend of tyranny, but he clearly enjoyed enumerating in an imposing list the powers of the Tudor State. In Bracton, on the other hand, the emphasis was not upon power but upon responsibility; the King was subject to God, to the law, and (according to a doubtful but much-quoted passage) to his feudal court. Here was an antidote to that State absolutism which the later Tudors and the Stuarts attempted. This was the immediate effect of the publication of Bracton, but it was not the effect which the anonymous editor intended. To him Bracton had different merits to which he called attention in his interesting preface. He observes that even the best of our books are none too good, while the rest are but an indigesta confusio, and so commends to students the treatise of Bracton with its laudable imitation of the Roman clarity and order. In fact, the first edition of Bracton is part of the Romanising movement of the reign of Elizabeth, when there were several eminent civilians in the public service. English law, however, was still too mediaeval to feel the force of such an argument. Not until Holt’s time was Bracton read because he was Roman; in the meantime, he was read because he was mediaeval, and so it is not surprising Edition: current; Page: [264] that when the political storm grew darker Coke eagerly seized upon Bracton as a powerful weapon, and a second edition was published in the heat of the conflict of 1640.1

Bracton’s influence was to extend to private law in the course of the eighteenth century. The passage we have already quoted from Professor Holdsworth indicates the reason. The time had come when the speculative questions which Bracton had raised turned up in actual practice. In looking for authority, attention turned to Bracton and there were found Bracton’s own suggestions. But these suggestions were mostly drawn from the Roman legal literature, which was the only place in his day where such “academic” matters were to be found; and so the guidance which was found in Bracton’s treatise was really Roman law. Thus, in the famous case of Coggs v. Bernard,2 Lord Holt made great use of Roman passages in Bracton (whom he praised highly) and thereby brought our law of bailments into line with that of the Roman law. Similarly, in the seventeenth and eighteenth centuries, passages of Bracton were much used in settling the law of easements,3 which so far had been obscured by procedural considerations.

BRACTONISM AND PARLIAMENTARISM

This curious history of Bracton’s tardy influence on the law moved Maitland to the notable reflection that the rise of parliamentary supremacy had its disadvantages as well as its benefits. The decline of Bracton’s influence in the middle of the fourteenth century coincides with Parliament’s first assertions of its powers; already it had come to be the principal, if not the only, legislative body, and the dominant interest in it was that of the common lawyers. The common lawyers were rapidly becoming a narrow profession, moreover, and the Crown adopted the fateful practice of appointing judges from among the leading practitioners at the bar. Bench, bar and Parliament, therefore, were alike under the influence of the conservative, professionalised lawyer, to whom the complexities and technicalities of the law were a peculiar and valuable learning. What is more, these very men also acquired control of legal education as well. The inevitable result was the disappearance of a liberal outlook upon law, and the loss of contact with other systems. The speculative parts of Bracton’s treatise must have seemed unpractical and academic; instead of this broad learning they turned to the narrow and tangled studies of procedure and pleading. It was the common lawyers who were mainly instrumental in making parliamentary supremacy a fact, but, as Maitland has said, “the supremacy of Parliament Edition: current; Page: [265] may have been worth the price paid for it; none the less, the price was high”.1 The price consisted in the extreme centralisation of justice, the decline of old local institutions, the subjection of custom to the common law, the growth of immense quantities of technicality, opposition to reform, and the rejection of the broader and more liberal attitude towards law which showed so clearly in Bracton. It was very appropriate that when some of the mediaeval deficiencies of the common law were at length supplied, Bracton should have played a noteworthy part, albeit four or five centuries after his death.

BRACTON’S IMITATORS

Some curious things happened to Bracton’s book. Several smaller treatises were based upon it, but the longest and most important of them were Fleta and Britton. Fleta was written in Latin, and although based largely upon Bracton, contains some new matter; we have already mentioned his original and illuminating treatment of the courts of law, and the significant formula which he uses in describing them.2 This is the portion of Fleta’s work which is of most general importance. The rest is mainly an attempt to modernise Bracton in view of the legislation of Edward I. There has been much speculation on the identity of the author;3 a recent study has made out a persuasive case for ascribing it to Matthew Cheker (or de Scaccario).4 It was printed by Selden in 1647 from the unique manuscript now in the British Museum—the work obviously never reached the legal public. A new edition for the Selden Society is in course of publication.

Britton is a rather different book. It is written in French and is of almost exactly the same date as Fleta (1290-1292). The remarkable thing about Britton is that it is in the form of a code and purports to be issued by royal authority. It is not impossible that the idea of codifying English law had been entertained by Edward I. That monarch had done something of the sort in the Statute of Wales to which we have already referred, and in 1305 contemplated doing the same for Scotland;5 certainly if a code was contemplated the great book of Bracton was an obvious model to which to turn. As Professor Winfield has observed, it is time that Britton’s pretensions were investigated; it is hardly likely that such a claim would have been made if there had been no foundation for it whatever.6 In any case, Britton enjoyed a great popularity for Edition: current; Page: [266] many centuries, and was soon put into print. Fleta, on the other hand, was hardly a success, probably because common lawyers, as time went on, read Latin with less ease, and so naturally turned to the familiar French of Britton. Its authorship is still more obscure than Fleta’s. It is only some of the manuscripts which call the work Britton, and the significance of that word is far from clear; it was long taken to mean that John le Breton, bishop of Hereford, was the author. Most scholars have agreed with F. M. Nichols, the editor of the admirable Oxford edition (1865), that there is no evidence to support that ascription.1

Still a third treatise from this period is the Summa of Gilbert de Thornton, C.J. For many centuries the text of this work was lost, but a manuscript recently discovered has been acquired by the Harvard Law Library.2

THE MINOR TREATISES

Just at this moment (the earlier portion of Edward I’s reign3) we come to the new style of literature which was eventually to supplant the Bractonian tradition. It consists of a number of little treatises on writs, declarations, and other procedural matters, sometimes interspersed with a number of cases which may be either narrated at some length, or merely represented by extracts from the pleadings. The proportions in which these various elements occur vary considerably; it has been well observed:

“It was a period in which men were groping for forms of expressing the law. They did not quite know what ought to go into a law book, or how the matter should be distributed, or whether portions of it had better be left for incorporation in some other book, or what the title of the book should be. On all these points the period was one of experiment. In a later era cases will go to one book, writs to another, pleadings to yet another; abridgments of cases will be separated from reports of them, and land law and pleas of the Crown will be dignified with separate monographs. . . . And so in the dawn of our legal literature we can see men treading in the uncertain light, first in one direction, and then in another. Some thought that the right path was report plus pleading plus note plus institutional instruction, some that a combination of any three or two of these would suffice.”4

Indeed, this very hesitation as to the form which legal literature should take shows how completely practitioners were turning their backs upon the Bractonian tradition. It may perhaps be conjectured that these little treatises we are discussing are intimately connected with the beginnings of legal education. It was a momentous decision when Edition: current; Page: [267] that important function was left entirely in the hands of the practitioners themselves, and carried out, it would seem, by allowing students to attend the courts and to rely for an explanation of what they heard there upon conversation which crossed the dinner table in the lawyers’ inns, assisted perhaps by some of these little treatises. “The common lawyers were self-educated, so to speak”,1 and an examination of this class of text seems to show that they compiled as best they could their own text-books.2

There is one other work which defies classification, and almost baffles description. The Mirror of Justices was written about the year 1290, at the moment when Britton, Fleta and Thornton were bending their energies towards the serious task of rewriting English law. Andrew Horn, the presumptive author of the Mirror, adds one more mystery (and a very entertaining one) to the mysterious outburst of activity which marks that moment. Andrew Horn was chamberlain of London, and so had the custody of the civic archives, in the reign of Edward II. He did useful work in collecting city records, and wrote a valuable chronicle. All this is perfectly sober, but the Mirror is certainly the most fantastic work in our legal literature. The author knew some of the Anglo-Saxon laws (and fabricated many more), and was well acquainted with canon law